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Lord Goodhart: I am most grateful to the noble and learned Lord the Lord Chancellor for giving way. This argument I am afraid is once again getting repetitive because I have made it clear before and must make it clear again that I have never objected to the power of Parliament to change these rules by primary legislation. The real question here is the adequacy of secondary legislation.

The Lord Chancellor: That is the real question so far as concerns the noble Lord, but the noble Lord must appreciate that we disagree on this matter. There is not much virtue in disagreeing again. That itself would be repetitious, but the noble Lord must also appreciate that I am not merely addressing him; I am addressing the whole Chamber in Committee and there is a wider public interested in these matters.

What I was explaining was that barristers do not exercise these rights of audience, derived in some curious way from the judiciary. What they exercise are statutory rights which have been granted to them by the Bar Council, which is a body authorised for that purpose under an Act of Parliament, the 1990 Courts and Legal Services Act. The Act also imposes a statutory procedure for approving changes in these rights. It is simply untrue that rights of audience have historically

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been the exclusive reserve of the judiciary in which the legislature and the Executive have uniformly abstained from intervening.

The fact is that extensions of rights of audience have often taken place as a result of government legislation as the judiciary have either failed to see the need for such extensions or have thought that they lacked the power to bring them about. For example, Section 2 of the Trials for Felony Act as long ago as 1836 allowed barristers and attorneys rights of audience in magistrates' courts following a judicial decision that they had no entitlement to appear there. Parliament struck down the view of the judges; Parliament is sovereign.

In 1846 Parliament legislated again to enable barristers to appear in the Court of Common Pleas which had been traditionally reserved to the Serjeants at Law. When the Crown Court was established in 1971 the Courts Act enabled the Lord Chancellor to direct that solicitors should be able to appear in any description of proceedings that he might specify. Rights of audience in the county courts were dealt with in the County Courts Act 1984 and, before that, in the Acts of 1959 and 1934.

The "authorised bodies", including the Bar Council, are so called because they are authorised to grant those rights under the 1990 Act. Their rules and regulations relating to those rights are not made through powers delegated by the judiciary through the Inns of Court; they are made under statutory authority and subject to a statutory approval procedure.

At the time the 1990 Act was passed, the Bar and the Law Society of course already had rules in place--this addresses the next point of the noble Lord, Lord Goodhart. These were deemed to be approved for the purposes of the Act, but were made subject to a procedure under which they could be challenged and would fall if not upheld unanimously by the designated judges and the Lord Chancellor. It cannot be in the public interest for a single judge to have such power.

I therefore already have an individual veto over a large part--if not the majority--of the rules and regulations of the Bar Council and the Law Society. I could, for example, strike down the Bar's rules about employed lawyers, if I wished, and I would not need the approval of Parliament or the designated judges to do so. Of course, I would not dream of doing so.

Why, then, have I proposed to take this new power? There are two reasons. First, my existing power is only to strike down rules, and not to replace them. We all believe that lawyers should be subject to rules and regulations, in the public interest, and it would be inappropriate for me to remove rules merely to leave an unregulated vacuum. Secondly, my existing power does not allow me to revisit rules which have been approved, but which have proved to be unacceptably restrictive in practice or have become outmoded. The new power I propose will also have the advantage of much greater scrutiny over the actions of the Lord Chancellor. He will no longer be able to strike down or alter any rules unless Parliament has approved. I emphasise this point. The revocation power only relates to bodies authorised by

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Order in Council. The Bar and the Law Society are authorised by statute--the 1990 Act--and therefore the revocation power has no application.

Finally, there remains a deeper question. Is it the view of the Government that they expect such entrenched hostility from the legal profession, such opposition to any moves to widen rights of audience, that they envisage the Lord Chancellor having to use his exceptional fall-back power regularly? The answer to that question is, "Certainly not". I and my department have excellent relations with the legal profession which we are confident will continue. I believe that most of the Bar have now accepted, perhaps with some reluctance, that rights of audience in the higher courts will be extended to Crown prosecutors and those who are wise among them will not be in the least encouraged by tonight's aberrant vote in which the Liberal Democrat Benches opposite did not participate.

I think that it is generally accepted that it is right, in the public interest, that rights of audience in the higher courts will be extended to Crown prosecutors, to other employed lawyers and to solicitors, provided that they meet the necessary requirements. I look forward to the Bar making proposals to grant rights to conduct litigation to employed barristers. I hope that the mindset among some of the Bar resisting any form of modernisation will shortly become a part of a rather unbelievable past.

The record of inactivity over the past decade, since the 1990 Act was passed, in my firm view demands action, and now. This backstop power, which I hope that neither I nor any successor Lord Chancellor will ever have to exercise, will spur the authorised bodies into sensible action in the public interest if they know that the Lord Chancellor will, in the last resort, and only with Parliament's approval, ensure that Parliament's will is carried into effect in matters which relate to what are inherently restricted practices and can be justified only by reference to the public interest. I repeat that Parliament, not the judiciary, is the ultimate judge of the public interest. I hope on that basis that the noble Lord will agree to withdraw his amendment.

9.30 p.m.

Lord Goodhart: I do not think that the Lord Chancellor will have expected me to listen to his statement on this group of amendments with much enthusiasm. Nevertheless, it is inappropriate this evening to take the matter further. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 268 and 269 not moved.]

Lord Archer of Sandwell moved Amendment No. 270:


Page 69, line 36, after ("shall") insert (", if he is satisfied that any qualification, regulation or rule of conduct is unduly restrictive of rights of audience or of a right to conduct litigation,").

The noble and learned Lord said: At the risk of being tiresome, this amendment was grouped with the amendment in the name of the noble Lord, Lord Goodhart, which he has not moved, Amendment No. 268.

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It may be that I am the only Member of the Committee who is not now crystal clear about the position we have arrived at in the course of the last few debates. Of course I assume, for the purpose of this amendment, that changes in the rights of audience and particularly in enforcing rule changes will be made by the Lord Chancellor with no participation in the decision-making by the designated judges. I say that I assume it; as to whether I approve of it, I remain something of a Hamlet, and I shall watch this space at subsequent stages.

We have had some incursions into legal history. At Second Reading my noble and learned friend Lord Falconer pointed out that there were historical precedents for changes to the rights of audience which were not initiated by the senior judiciary. My noble and learned friend the Lord Chancellor has just repeated them. The examples they gave were of interventions by Parliament, which is not what this Bill originally proposed. Incursions into legal history are always fascinating yet it is always perhaps a little dangerous to reduce them to single sentences as that may mean an over-simplification. Certainly, in the late 16th century, when the present structure relating to rights of audience was developed, it was the judges who sought to restrict the rights of audience in the superior common law courts to those who, by their studies, had made themselves competent. Perhaps it is fair to say that the subject seems to have been regarded less as a constitutional issue than as a matter of consumer protection.

However, my noble and learned friends are right: there have been times when the legislature has felt a need to intervene. I seem to remember that in the late 14th century, Alice Perrers, the mistress of Edward III, became so notorious for intervening in court, particularly in favour of her friends and presumably of her paying acquaintances, that in 1376 Parliament passed an Act forbidding women to practise in the law courts. So the precedents go back a long way.

However, as I ventured to say, those precedents were about interventions by Parliament. That is not what is proposed in the Bill; indeed, the Bill proposes that the intervention shall be by my noble and learned friend alone. Perhaps it is not totally irrelevant to point out again that the Delegated Powers and Deregulation Committee, of which the noble Lord, Lord Goodhart, and I are privileged to be members, suggested that we should consider two restrictions on the power of the Lord Chancellor to alter rights of representation under Schedule 5.

It suggested, first, that there should be some precondition stated by Parliament on the face of the Bill so that the Lord Chancellor might alter the provisions only if a case had been made out for the changes. In Amendment No. 270 I have tried to follow as far as possible the actual wording of the committee. I know there was an earlier debate about that, but I would be most grateful to know the reactions of my noble and learned friend about interposing some such statement at this stage. As I understand it, it would make it possible for decisions of the Lord Chancellor to be the subject of

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judicial review. That does not seem to me to be the end of civilisation as we know it. For the moment, therefore, I propose to move my amendment.

As to the second recommendation of the Committee--namely, that the matter should be subject to parliamentary control by the affirmative resolution procedure--my noble and learned friend has said repeatedly during the course of our debates that that will be the case and that that is what he proposes. Therefore, I can spare noble Lords an intervention at a later stage by saying now that I do not propose to move Amendment No. 273 in due course. For the moment, I beg to move Amendment No. 270.


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