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Lord Thomas of Gresford: I am most grateful to the noble and learned Lord for what he said in answer to my query. But perhaps I may turn to the substance of the amendment. The noble and learned Lord does not seem to recognise gradations in the experience of Crown Prosecution Service employees. His argument is that once they are entitled to appear in the Crown Court, they are entitled to appear for all purposes.

Gradations are recognised in the judiciary. There are assistant recorders, recorders, circuit judges and High Court judges, each of whom has his area of responsibility and the lesser cannot take on the role of the greater. The gradations are recognised.

When it comes to the independent Bar, a barrister who is employed to prosecute is subject to the discipline or restriction of the fact that he is instructed to do so by the Crown Prosecution Service. He is instructed because he has the necessary expertise to take on the case which the Crown Prosecution Service wishes to be prosecuted.

There is a danger that a Crown prosecutor may instruct himself to appear in a case which is way beyond his capacity. I do not welcome the use of the phrase "restrictive practices" and the criticism that we wish to defend them. That is not the case. We are concerned to ensure that prosecutions are carried out properly in those courts; that guilty people are convicted and innocent people are acquitted. It happens to be that most of us with experience in that field, from all parties, take the

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view that some of the provisions militate against that aim. That is the purpose of the criticisms which we make.

The Lord Chancellor: We can carry forward this argument in wearisome detail. I should have found that point more impressive from the noble Lord if the current position, as it affects the Bar, was not as it is. Today, the day after a barrister emerges from his pupillage with full rights of audience, he can prosecute or defend a murder at the Old Bailey or appear in your Lordships' House in its judicial capacity, if fortunate enough to be briefed at any of those levels. There is no restriction whatever on that.

Lord Thomas of Gresford: With the greatest respect, the noble and learned Lord has not appreciated my argument. I am sure it is my fault. No Crown prosecuting service will instruct a newly-fledged barrister to appear in a murder case or in the House of Lords. That is why there is that control. The difference with a Crown prosecuting service employee is that he instructs himself and may instruct himself to do more than he is capable of.

The Lord Chancellor: Perhaps I may say with respect, and without wearying the Committee, that the noble Lord makes my point for me. Just as I doubt that a solicitor, on my first day in fully-fledged practice, would instruct me in an appeal to your Lordships' House in its judicial capacity, nor would the chief Crown prosecutor sanction a prosecutor prosecuting a murder, although he had full rights of audience, if he was comparatively inexperienced. Those matters are dealt with by the sensible judgment of those who, in private practice, brief barristers with full rights of audience. The chief Crown prosecutor will determine the allocation of business according to appropriate experience. The noble Lord makes my point for me.

Lord Kingsland: In thanking the noble and learned Lord for his reply may I say first of all that there is no suggestion lying behind this amendment that the employees of the Crown Prosecution Service, while legally qualified, are in any way second rate. That is not something that is implied in that amendment and it is certainly not something that I believe. The basis for the objection is, I repeat, the danger of conflict of interest.

I listened with great interest to what the noble and learned Lord said about his budget, and of course I entirely accept that his budget will not be affected by this change. But somebody else's budget will be and therefore the taxpayer will be. I should have thought that one of the matters to which the noble and learned Lord ought to have addressed his attention in respect of the budgetary implications of what he is doing is other parts of public expenditure. He did not address, and I can quite understand why, the competition points I made. I therefore wish to think about those and perhaps come back at Report stage.

The Lord Chancellor: Before the noble Lord sits down, I wonder if, for the information of the Committee,

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he will clarify why he does not think that Crown Prosecution Service lawyers are in theory lawyers but is concerned with the conflict of interest. If Crown Prosecution Service lawyers are affected by conflict of interest, is his true position that none of them should have any rights of audience?

Lord Kingsland: As far as my amendment goes, I do not know whether they would be affected by conflict of interest because they are not yet in that position. What I am saying is that there is a danger that they would be. That is the substance of my argument. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 31, as amended, shall stand part of the Bill?

Lord Ackner: Shortly before midnight on Tuesday I was unsuccessfully addressing the Committee on the desirability of removing Clause 30 which deals with rights of audience of barristers and solicitors. Although I failed in persuading your Lordships to remove Clause 30, I think I succeeded, partially with the help of the correspondence which was referred to as passing between my noble and learned friend the Lord Chancellor and his predecessor, in establishing that the consequences of what is proposed in Clause 30 would be a reduction in the quality of the advocates who emerge. This follows quite simply from the fact that only 1 per cent. have sought to do advocacy, despite their entitlement, for the last five years, and the high proportion of failures in regard to tests which their own organisation thought appropriate. Therefore, for the rights of audience by solicitors to be extensive, standards inevitably would have to come down and the courts would be the unhappy recipients of that drop in quality.

In regard to Clause 31, which deals with rights of audience of employed advocates, I should be able to demonstrate the same though by a different route. I accept that the 1990 Act was intended to allow solicitors in private practice to obtain the right to appear in any court, subject always to their being properly qualified and trained to exercise those rights.

With deep respect, the noble and learned Lord the Lord Chancellor was in error in his foreword to the Way Ahead paper in saying in the third paragraph that the 1990 Act was also intended to enable employed lawyers such as Crown prosecutors to appear in the higher courts. I say that because on 22nd February 1990, on an amendment moved by the noble Lord, Lord Hutchinson, the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, said:


    "This Bill sets up a framework under which matters of rights of audience and the conditions under which they can be exercised are to be determined in the light of advice from an independent advisory committee appointed by the Lord Chancellor in accordance with rules to be proposed by the professional bodies, which will become effective only if they are approved by the four heads of division, the designated judges, and the Lord Chancellor. That is what we are concerned with. There is no question of my having put forward this Bill in order to bring rights of prosecution to the Crown Prosecution Service except in accordance with decisions taken under that machinery".--[Official Report, 22/2/90; col. 41.]

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At col. 413, he added:


    "I entirely accept the view that there are important considerations as to what extent any part of the prosecution service--that refers not just to the CPS but to all prosecuting authorities--should use salaried employees to present cases at any stage".
He made it perfectly clear that this particular question was a debatable one and that the debate would have to be concluded before the prosecution authorities could establish any right of audience. It was generally accepted that the extension of rights of audience in the higher courts to employees was highly debatable.

In the judges' response to the Green Paper in 1989, paragraph 91, it was stated that any such extension of rights of audience would have the following disadvantages:


    "(a) An advocate who is an employed lawyer would have a personal interest in the success of the case he was presenting since he might believe that his chances of promotion depended on his success. In consequence he would be subject to conflict between his duties to the court and his interest in furthering his case. The Government recognise the problem but believe it should be possible for appropriate codes of conduct to guard against the conflict of duty and interest. The judges are not so optimistic.


    (b) At present one of the protections for those charged with serious criminal offences is that the advocate having the conduct of the prosecution is independent of the prosecuting authority. An employed prosecutor, whether in the Crown Prosecution Service or another department, may be tempted to press for a conviction in a way which is foreign to the English criminal trial system.


    (c) An adversarial system of trial makes it desirable that advocates in the criminal court should have experience both of prosecuting and defending. Such experience helps the advocate to be open minded and to present his client's case in a way which at all times reflects his duty to the court".
That was said in 1989.

Professor Zander has not been known for his affection for the Bar or for his desire that the status quo remains but he wrote a powerful letter to The Times on 18th December. Among his observations are these:


    "In the Crown Court study I conducted for the Runciman 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 barristers was disagreements with and undue pressure from the CPS on individual cases. At present, such disagreements and pressure are dealt with by discussion between the barrister 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".

When I made my submission on Clause 30, the noble and learned Lord, Lord Falconer, moved over from commenting on Section 30 to Section 31. I want to criticise strongly one specific comment and, in doing so, I recognise the great ability of the noble and learned Lord but also that, like many others at the Bar--both past and present--one is sometimes given a case with which one wholly disagrees, but which it is one's obligation to put forward.

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In moving over to Section 31, the noble and learned Lord said this:


    "Those restrictions on employed barristers 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 appreciate that the noble and learned Lord was obliged to carry out his instructions and I sympathise with him. But that was a wholly unjustified observation redolent of one of the unfortunate features of excessive power; namely, arrogance. It overlooked what I had already said in relation to the judge's comments on the Green Paper, but it also overlooks a great deal of back history and, briefly, I shall draw attention to part of that.

When the Crown Courts were created in 1971 the Courts Act empowered the Lord Chancellor to give directions on the respective rights of audience of barristers and solicitors in the Crown Court. In giving his first direction under the Act, the Lord Chancellor of the day--the noble and learned Lord, Lord Hailsham--said in the House of Lords on 9th February 1972,


    "I find no sufficient reason for altering the present balance between the Bar and the solicitors' profession in the conduct of prosecutions, whether by public authorities or private individuals. I must also emphasise that I regard the presentation of a prosecution case in the higher courts by counsel, properly instructed by a solicitor, as an added safeguard of individual freedom since it involves that a second opinion is always brought to bear".--[Official Report, 9/2/72; col. 1139.]

The matter was considered by Lord Benson in the Benson Commission. At paragraphs 18.43 to 18.45 of his report he said this:


    "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. Whatever the outcome of the Royal Commission on criminal procedure [the Phillips Commission] 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 barristers 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 the worst kind of restrictive practice? Is that a restrictive practice designed simply to protect the work and income of private practitioners? Can it be said that that practice contains no shred of benefit to the public?

I wish to make a few other short points. The Phillips Commission was split, but the majority came out in favour of retaining the status quo. The Government's response to the Benson Royal Commission report was presented to Parliament by the Lord Chancellor in a White Paper which agreed with the observations of the Benson Commission; that is, that there should be no general extension of rights of audience for solicitors. The White Paper also accepted the recommendation of

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the Royal Commission which was published by the Government in regard to rights of audience. As a consequence of the report of the Royal Commission on Criminal Procedure, the Government introduced a draft Bill--the Prosecution of Offences Bill--into the House of Lords in the autumn of 1984. On 29th November 1984, when introducing the Second Reading, the Minister of State (then the noble Lord, Lord Elton) said,


    "I should emphasise that the Government hold strongly to the view that rights of audience in Crown Court trials should continue to be confined to an independent Bar which both prosecutes and defends".--[Official Report, 29/11/84; col. 1017.]
He wrote a letter to the noble Lord, Lord Wigoder, on 12th December 1984 saying,


    "There is no intention to extend these rights of audience any further; for example, to include the conduct of criminal trials before the Crown Court. In this connection the Government have recently reaffirmed their acceptance of the Benson Commission's recommendation that, in general, rights of audience in the Crown Court should be the preserve of the independent Bar".

It is interesting to note that the right honourable John Morris, as he then was, in a debate on the Bill in the House of Commons when he was shadow Attorney-General, said:


    "Despite the Government's assurances, I fear the long-term future, perhaps not so long of the criminal Bar. What will happen when the Treasury gets its hands on that? Who can put his hand on his heart and say that in five or 10 years' time there will not be a Rayner Report, or something of that ilk, which advocates more and more inhouse work? I fear that that will be the Treasury approach as sure as night follows day and that it would strike at the heart of an independent profession which I believe to be one of the bastions of liberty".
He had considerable foresight because I believe that there has been considerable Treasury input into what is proposed. The Lord Chancellor's advisory committee was expected to produce a recommendation that the employed lawyer should have a right of audience and it was a matter of deep sadness to the Government when it was discovered that the independent advisory committee was a great deal more independent than they had anticipated.

The report of the advisory committee, by a majority, proposed no rights of audience for the Crown Prosecution Service. It is a lengthy and closely-reasoned document. Nowhere has it been referred to, even by way of a cut-down description. I respectfully suggest to the Committee that the words of my noble and learned friend Lord Falconer, which I have emphasised, show the shallowness of the Government's approach to the consequences of what they propose. I oppose the Question that the clause stand part of the Bill.

5.30 p.m.

Lord Hacking: The central point identified by the noble and learned Lord in his opposition to the use of employed lawyers is the vested interest point. He quoted from the paper that the judges issued in reply to the Green Papers on access to justice published last summer. Here they put the argument, as precisely submitted to Members of the Committee by the noble and learned Lord, that a lawyer in the Crown Prosecution Service would have a vested interest in success because it would affect and benefit his chances of promotion.

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I have argued this before with the noble and learned Lord. In every case, whether you are a barrister or a solicitor, you have a vested interest in success. Success brings you more cases and a greater income. Crown prosecutors at the Old Bailey have a vested interest in success because they get bigger and better cases, and more well paid cases. Every barrister in private practice has a vested interest in success because his practice will improve. Indeed, the noble and learned Lord had an illustrious career at the Bar. I remember him well as a senior member of the Bar after I had been admitted. His practice went far because he was successful and had the good habit of winning cases. That is always a factor in the practice of law. But what every barrister and solicitor does when appearing before the court is to put the interest of justice first. He lays aside that vested interest in success because he has an overriding duty to the court.

It is a fatuous argument. It is most surprising that it is produced again and again and has apparently been produced in the judges' paper.


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