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Lord Hacking: I wish to support this amendment. As a member of the Bar for some 15 years, who always paid his dues to the Bar Council, and as a solicitor of

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the Supreme Court for the ensuing years of my 35 years of practice, I have been under statutory obligation, but nonetheless I have been willing to pay the fees.

The position has greatly changed since I was called to the Bar in 1963 when the Inns of Court exercised all sorts of jurisdiction over discipline, education and so forth. The Bar Council is now in a position almost akin to the Law Society. The only question I would raise is whether it is necessary. If it is necessary to put such a matter into the statute, clearly it is right that the Bar Council should have the right to collect fees for the public services that it provides in education, training and so forth.

Lord Goodhart: Before the noble Lord sits down, I should add that the Bar Council, as I understand it, has been advised that it has no power to charge fees, to take disciplinary proceedings or to take any other action against members who do not pay its charges.

The Lord Chancellor: Your Lordships have heard the eloquent speeches made by the Bar Council's many able advocates in this House and outside it, in which they have protested how unreasonable, how unconscionable, how unconstitutional it is for the Government to have dared to promote legislation interfering with rights of audience, and how this threatens the fragile independence of the Bar and risks tumbling our entire constitutional settlement around our ears. We had 60 minutes' worth of it when the noble and learned Lord, Lord Ackner, opposed that Clause 31 stand part of the Bill.

At least, that is the argument when the Bar thinks that its privileges arising from its rights of audience are under threat. How interesting it is to see the position when the boot is on the other foot. The delicate subject of how the Bar can force its recalcitrant members to pay their subscriptions is one on which, as a Member of the Government, far less as Lord Chancellor, I would hardly dared to have ventured an opinion, but for this amendment. This question is apparently not so intimately connected with the Bar's traditions of independence and self-regulation that it would not benefit from parliamentary intervention.

The reason such an amendment is desired is that in 1990 the noble and learned Lord, Lord Nolan, sitting in the Bar Disciplinary Tribunal, decided that Bar rules purporting to make the non-payment of subscriptions a matter of misconduct were ultra vires and unenforceable. Subsequently, the noble and learned Lord the Lord Chancellor and the designated judges refused an application under the 1990 Act to approve changes in the Bar's rules designed to re-introduce compulsory subscriptions. They did so on the grounds that the Bar Council had no power to make or enforce such rules. That explains the reference in the amendment to,

    "notwithstanding any rule of law to the contrary".

As has already been pointed out, the Law Society is in effect already able to levy compulsory subscriptions by charging for the practising certificate which all practising solicitors must obtain. Therefore I do not

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consider that it is necessarily objectionable in principle for the Bar Council also to be able to levy compulsory subscriptions on practising barristers.

There are, however, difficulties. Both the Bar Council and the Law Society are hybrid bodies which combine regulatory functions with--they may not like the description--trade union functions. As the Committee will recall, the enforcement of trade union closed shops is contrary to the right of freedom of association which is enshrined in the European Convention on Human Rights, newly incorporated, as the noble Lord, Lord Goodhart, was kind enough to recall, into our domestic law under a Bill which I had the privilege of introducing and carrying through this House. Compulsory adherence to a state regulatory body subject to public law is, however, permissible.

Although the Bar Council exercises certain statutory regulatory functions in respect of rights of audience under the Courts and Legal Services Act 1990, it is not a statutory body and its other functions are not statutory. In that it differs from the Law Society, which is the statutory regulatory body for the solicitors' profession, under the provisions of the Solicitors Act 1974.

Another difference between the two bodies is that while all practising solicitors are subject to regulation by the Law Society and must obtain and pay for practising certificates from the society, it is possible for them to opt out of membership of the society and out of its trade union functions. Some solicitors do this as a matter of principle or for their own reasons, even though membership is free to solicitors with a current practising certificate. No such option is available to barristers under the amendment which has been moved.

The fee which the Law Society can charge for a practising certificate is a statutory fee determined under Section 11 of the Solicitors Act by the Master of the Rolls with the concurrence of the Lord Chancellor and Lord Chief Justice. I do not think that the Bar Council has proposed any similar mechanism in relation to its own fees.

There must also be other questions about the Bar Council's suitability to receive a compulsory levy from all barristers. As presently constituted, the Bar Council is, for example, very unrepresentative of employed barristers who make up a significant proportion of the profession as a whole. Some Members of the Committee may have read recently in the Lawyer the comments of Susan Ward, the chairman of the Bar Association for Commerce, Finance and Industry, when asked about this amendment. She said:

    "BACFI doesn't have a problem with compulsory subscriptions, providing the Bar Council stops using subscription income to fund campaigns to denigrate employed and non-practising barristers, and starts looking after our interests".
I have some sympathy with her. I would need some persuasion that the Bar Council does a good job, or even seriously attempts to do a good job, of representing the many barristers who are not in private practice.

As drafted, the amendment would appear to require former barristers who have become solicitors, and those barristers who are regarded by the Bar as non-practising barristers and who can only provide those services

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which any member of the public can provide, to pay subscriptions to the Bar Council. I am moved to wonder what service they are to receive in return for their subscriptions.

To sum up, while I do not reject the principle of compulsory subscriptions to the Bar, I believe that all these difficulties and questions would need to be resolved before your Lordships would agree to an amendment of the kind that has been moved.

On a more encouraging note, my department is already discussing the issue with the Bar Council and I certainly undertake to consider it further and to consult interested parties and my colleagues in government. I hope that it will be possible to resolve the issue during the passage of the Bill through Parliament. However, I cannot undertake to return to the House on Report with a government amendment. I hope that on that basis the noble Lord will agree to withdraw the amendment.

10.15 p.m.

Lord Goodhart: I am grateful to the noble and learned Lord the Lord Chancellor. The Bar Council was seeking a change in the law by primary legislation to which, as I have pointed out on several occasions today, it has no objection. At this time of night I shall not seek to attempt to reply to the various points made by the noble and learned Lord, although there are replies to be made to a number of them. Having regard to his comment about the possibility of further action being taken before the Bill is enacted and takes it final form, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 agreed to.

Schedule 6 [Rights of audience and rights to conduct litigation: amendments]:

Lord Falconer of Thoroton moved Amendment No. 290A:

Page 72, line 34, leave out from ("for") to end of line 37 and insert ("the words from ", the Lord Chief Justice" to the end substitute "approves any regulation such as is mentioned in subsection (1), the requirement of the concurrence of the Lord Chief Justice and the Master of the Rolls imposed by that subsection shall not apply."").

The noble and learned Lord said: These amendments are minor drafting amendments to Schedule 6. The first two are made at the request of my noble and learned friend the Master of the Rolls who I am glad to see in his place. They are somewhat technical in nature, and concern rules of the Law Society which require concurrence by certain members of the judiciary under the Solicitors Act 1974. Most of these rules will also require approval under the Courts and Legal Services Act 1990.

Clearly it is not in anyone's interest that the same rule should have to be approved twice under two different Acts, and so the principle which applies is that when a rule has been approved under the 1990 Act it is deemed also to have been concurred to under the 1974 Act. This principle is currently enacted in Sections 2(4) and 31(3) of the Solicitors Act, as amended by the Courts and Legal Services Act.

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Section 2 of the Solicitors Act relates to education and training rules for solicitors. These require the concurrence of the Lord Chancellor, the Lord Chief Justice and the Master of the Rolls, which is deemed to have been given if the rule has been approved under the 1990 Act. Section 31 relates to practice rules, which require the concurrence only of the Master of the Rolls; this, too, is deemed to have been given if the rule has been approved under the 1990 Act.

Schedule 6 updates these provisions to reflect the fact that under the provisions of the Courts and Legal Services Act, as amended by this Bill, rules will be approved by the Lord Chancellor alone, after considering the advice of the designated judges, and not by the Lord Chancellor and designated judges acting together. Schedule 6 currently provides that in these circumstances the Lord Chief Justice and Master of the Rolls, or the Master of the Rolls alone, according to the type of rule, will be deemed to have concurred to the rule.

My noble and learned friend Lord Woolf suggested at the Second Reading debate that he would prefer not to be deemed to concur to a rule if he has not actually done so. That seems eminently sensible. Accordingly, Amendments Nos. 290A and 290B provide that where a rule has been approved under the 1990 Act, the requirement for concurrence under the 1974 Act shall not apply.

The last of this group of amendments, Amendment No. 291A, is another technical amendment which will correct the definition of a "right to conduct litigation" in Section 119 of the 1990 Act. That right is currently defined as the right:

    "(a) to exercise all or any of the functions of issuing a writ or otherwise commencing proceedings before any court; and

    (b) to perform any ancillary functions in relation to proceedings (such as entering appearances to actions)".

Paragraph 10(3) of Schedule 6 amends that definition to reflect the fact that it is possible to have rights which one cannot exercise. The relevant part of the new definition would therefore provide that a right to conduct litigation is the right to issue a writ or otherwise commence proceedings before any court. However, the Civil Procedure Rules 1999, which will come into force on 26th April this year, will abolish the commencement of proceedings by writ. This amendment therefore deletes that part of the definition to reflect the new state of affairs which will prevail by the time this Bill is passed, if Parliament chooses to pass it. I beg to move.

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