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The Lord Chancellor: The noble Lords, Lord Goodhart and Lord Thomas of Gresford, have not moved their Amendment No. 268. However, as I would have expected, my noble and learned friend Lord Archer of Sandwell has stuck to his amendment to the last, and moved it. I should remind my noble and learned friend that I clearly stated my position in relation to the matter when making my opening speech to this Chamber at the outset of our considerations on the Bill in Committee. Of course, in practice the call-in power, if it is used at all, will only be used to remove restrictive rules. Therefore, I am content in principle to accept a limitation of the type that these amendments would impose, as indeed I have already said. However, I shall need to consider precisely how the amendment should be drafted. I hope that I shall be able to return to the matter on Report with an amendment. In the meantime, I should be grateful if my noble and learned friend would withdraw his amendment.

Lord Archer of Sandwell: My noble and learned friend cannot say fairer than that. However, I wanted to ensure that what he said earlier applied particularly to this provision. For the moment I am content and, therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 271 to 273 not moved.]

Lord Goodhart moved Amendment No. 274:

Page 69, line 43, at end insert--
("( ) When an order under this paragraph is laid before either House of Parliament there shall be laid with it copies of all representations made under paragraphs 18 and 21 and advice given under paragraphs 19, 20 and 22.").

The noble Lord said: I shall speak shortly to this amendment. If the Lord Chancellor makes an order imposing rule changes under Part III of the schedule, the amendment would require him to lay before Parliament the representations received by him from the body whose rules are to be changed and the advice received from the consultative panel, the Director-General of Fair Trading and the designated judges.

The Lord Chancellor has already accepted that the advice from the consultative panel and the Director-General of Fair Trading should be published, but, when considering an Order in Council in this case, it seems to me that it would be appropriate for Parliament to have before it all the material which is

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relevant to considering whether an order should be adopted. What I believe requires to be added to the advice of the consultative panel and the Director-General of Fair Trading are the representations made by the body whose rules are to be changed and the advice given by the designated judges. That is clearly information which Parliament ought to have before it when considering whether to approve the order.

Amendment No. 285 has the same effect as Amendment No. 274 in relation to Part IV which gives the Lord Chancellor the power to revoke the designation of an authorised body. I beg to move.

The Lord Chancellor: I already indicated my position in principle in relation to this in response to a question directly put to me earlier in these proceedings by the noble and learned Lord, Lord Lloyd of Berwick. He asked whether I would be willing, where my decision departed from the advice of the designated judges, to publish both their advice and my reasons for not accepting it. I said that so far as I was concerned, in principle I would be happy to do so.

The representations in question--that is to say, those covered by these amendments--are from the authorised body and the advice is from the legal services consultative panel and the Director-General of Fair Trading. I certainly have no objection in principle, and indeed would support, any of these being laid with the draft resolutions. However, despite the comments of the noble and learned Lord, Lord Lloyd of Berwick, I have to express some reserve in relation to the position of the designated judges until I can ascertain collegiately what the position of the designated judges is.

There is no provision on the face of the Bill for the advice of the judges to be published, although nothing whatsoever prevents them from publishing their advice if they wish to do so. Under the 1990 Act the designated judges are of course joint decision makers, and there is provision for the applicant to obtain the reasons given by each of the designated judges, as well as the Lord Chancellor, in reaching his decision under the 1990 Act. These amendments would require their advice to me to be published. Whereas I have no objections whatsoever to that in principle--as I have already indicated in my response to the noble and learned Lord, Lord Lloyd of Berwick--it is a novel step for the judges' advice to the Lord Chancellor to be published, and one which I would wish to discuss with them, as it were collegiately, before coming to a settled view, although for my part I wish to make it absolutely plain that I would be content for the judges to be treated in exactly the same way as the consultative panel and the Director-General of Fair Trading.

The value in the judges' advice of course rests in their experience and independence. All I say is that I wish to take time to consider with the judges collegiately how to proceed in relation to that part of the amendment. In the meantime on that basis I should be grateful if the noble Lord will withdraw these amendments.

Lord Goodhart: On that basis I am happy to withdraw the amendment. I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendments Nos. 275 and 276 not moved.]

Lord Kingsland moved Amendment No. 277:

Page 70, line 33, leave out ("may") and insert ("shall").

On Question, amendment agreed to.

[Amendment No. 278 not moved.]

Lord Kingsland moved Amendment No. 279:

Page 70, line 42, leave out ("may") and insert ("shall").

On Question, amendment agreed to.

[Amendments Nos. 280 to 286 not moved.]

Schedule 5, as amended, agreed to.

Clause 36 [Overriding duties of advocates and litigators]:

9.45 p.m.

Lord Kingsland moved Amendment No. 287:

Page 20, line 40, at end insert--
("(2B) An act--
(a) which is intended by the person committing it to bring about a breach of the duty imposed by subsection (2A)(a); or
(b) which the person committing it ought reasonably to appreciate is likely to bring about such a breach,
shall be punishable as a contempt of the court concerned."").

The noble Lord said: This amendment seeks to strengthen the provisions of the clause by providing a sanction against those who procure a breach of it.

The Government's recognition of the duties of advocates and litigators to the court and to their codes of conduct is welcome. But this clause is simply declaratory. It provides no sanction whatsoever for inducing a breach of it. The advocate or litigator himself may be liable to professional disciplinary penalties, but those who are not members of the regulatory professions are not subject to disciplinary rules at all.

There is an obvious danger that employers may seek to put their employees under pressure to act in breach of their duties to the court or to their codes of conduct. That would certainly be a breach of Clause 36, but there is no sanction for that breach. Given the duty to the court, the sensible solution would appear to be to make the breach of this clause a contempt of court and allow the court to impose its own sanctions.

Often, the fault will lie not with the lawyer, who may be acting perfectly properly and be placed in an impossible position by his employer, but with the employer who created the situation. It is crucial that the person actually procuring the breach should be held liable for it. I beg to move.

Lord Falconer of Thoroton: As I read these amendments, they are aimed at someone who induces the lawyer to act in breach of his duty under Clause 36. Therefore the provision would impose on a secondary party a liability for contempt of court.

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We have carefully considered the amendments and believe, for reasons that I shall outline, that they are neither appropriate nor necessary. They would in effect be imposing a liability for contempt which would not necessarily attach to the advocate or litigator himself; that is, the notional primary party. That is because, while it might constitute a contempt for a lawyer to act in a way which breached his duty to the court in the interests of justice, it would not necessarily be a contempt of court by the lawyer to act in a way that breached Clause 36. It would be a matter for the court to decide in each case. The courts are in fact very slow to penalise lawyers for what may simply be an error of judgment(as the cases on wasted costs orders have shown).

Lay members of the public--such as employers or clients--have to rely on the advocate or the litigator to explain where the interests of justice lie in relation to a particular action. It is for the lawyer to explain whether any proposed course of action would breach his, the lawyer's, duty to the court. Since the new sections inserted by Clause 36 go on to state that the lawyer's duties override any other obligation, it must follow that either the lawyer has to refuse to follow the instructions or cease to continue acting in the case. If, however, the lawyer were to give way, and do something that was in breach of his duty to the court--the effect of the provision in Clause 36 is that it overrides everything else--then he, the lawyer, is to blame. He cannot turn round and blame his client. On the basis of that analysis, the amendment is misfocused and unnecessary. In effect, the lawyer must be able to resist. If he does not, it is the lawyer who is to blame and not the secondary party. Yet the effect of the amendments is to make the secondary party liable for contempt.

Less importantly, the amendment is also technically misconceived. It refers to a person who "ought reasonably to appreciate" that it is likely to bring about a breach of duty. But he is by definition a person who may well not know that his act will have that effect and he could only remain in ignorance through his lawyer's failure to enlighten him. That, again, would be the fault of the lawyer, yet this amendment creates a new offence for someone else.

As a matter of principle, I do not think it is acceptable to have an offence of this kind which consists of bringing about conduct by another person which is not in itself necessarily either a criminal offence or a contempt. Procuring or abetting a non-criminal action, or attempting to do so, should not be a crime.

I should reassure the Committee that, of course, cases in which a client or employer or anyone else attempts to interfere improperly in the processes of justice can already be punished as a contempt. They do not need a provision such as the one put forward by the amendment. Moreover, in the most serious cases, it may be appropriate to bring proceedings for perverting the course of justice or for attempting or conspiring to do so.

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I hope that in the light of my explanation the noble Lord will agree to withdraw his amendment.

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