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Lord Kingsland: My Lords, I rise to support Amendment No. 176, which, as I recall, was treated with a degree of scepticism by the noble and learned Lord, Lord Falconer, in Committee. This amendment would provide that where employers induced advocates to breach their overriding duties set out in Clause 35, it would be punishable as a contempt of the court concerned.

The amendment is complementary to Amendment No. 175 tabled by the noble Lord, Lord Hacking. It is important to ensure both that any employees who are dismissed for faithfully discharging the overriding duties set out in Clause 35 are entitled to compensation and also that adequate direct penalties apply to the employer concerned. The penalties would need to apply whether or not the attempt to induce advocates to breach their overriding duties succeeded and whether or not the advocate concerned was dismissed.

Lord Clinton-Davis: My Lords, I should have thought that it would follow almost as certainly as night follows day that, particularly in the light of the amendments which have just been adopted, an industrial tribunal would find in favour of the advocate if he were put under such pressure.

I do not believe that it is right simply to talk about compensation in the light of the current law. Nothing is said in the proposed amendments about compensation other than by way of an implicit acceptance that the existing law in that respect is satisfactory as regards both amendments. I believe that it is necessary to offer rather more compensation. However, that is another issue. It is difficult to imagine a situation where an industrial tribunal could fail to support the advocate in such circumstances.

Lord Meston: My Lords, I support Amendment No. 176 in the name of the noble Lord, Lord Kingsland, which is grouped with Amendment No. 175. It should be apparent on the face of the Bill that those who employ people to exercise rights of audience or rights to conduct litigation are themselves answerable to the court if they exert improper pressures on those whom they employ.

I am glad that the noble Lord, Lord Kingsland, has pursued his amendment. I regret that the arguments against its predecessor in Committee were frankly unconvincing. Of course, the lawyer who is an officer of the court and a member of a professional body should normally have primary responsibility for a breach of the overriding duties set out in Clause 35 as it now is. But the enlargement of rights and the use of employed advocates and litigators is bound to bring the risk that unscrupulous employers and their corporate alter egos or single issue pressure groups who are not subject to

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professional rules or ethics will, from time to time, apply improper pressures on those who represent them. The lawyer cannot escape his responsibilities by blaming the client but the employed lawyer will not always be operating within the conventional relationship which exists at present between lawyer and client, as the Bill itself recognises.

However, I suggest that Clause 35, looks lame without any real sanctions. It should be made clear that employers and others are not immune simply because they do not have duties imposed upon them by Clause 35. I hope that the Government will look again at that problem.

Lord Falconer of Thoroton: My Lords, these two sets of amendments are intended to strengthen the position of lawyers under Clause 35. They are directed particularly at the protection of employed lawyers, although the two amendments in the name of the noble Lord, Lord Kingsland, are not limited to employed lawyers.

Those amendments seek to provide protection to employed lawyers from pressure, primarily from their employer, in two ways: first, by making a new provision in relation to contempt, which is the route of the noble Lord, Lord Kingsland; and, secondly, by making certain dismissals automatically unfair, which is the route of the noble Lord, Lord Hacking.

I shall deal with them in reverse order; namely, with contempt first. As the noble Lord, Lord Kingsland, will be aware, these amendments are not unlike amendments that he tabled in Committee. As I indicated at the time, with the greatest respect to the noble Lord, I thought the amendments that he tabled then were bad amendments. I explained in some detail why I thought they were bad amendments. I am afraid that, to the extent to which these amendments are different, I think they are worse than those tabled before.

What would first strike any reasonable person about Amendments Nos. 176 and 179 on the Marshalled List--I say this advisedly, knowing that these amendments have been drafted by no less a body than the Bar Council--is that they would create a new category of contempt which could be committed only by non-lawyers. The amendments apply only to persons who are not subject to the rules of conduct of an authorised body. So one could have the somewhat anomalous situation that the noble Lords urge upon us, that if a lawyer and a lay person behaved in exactly the same way, in the same case, by attempting to bring about a breach of another lawyer's duty to the court, the lay person is automatically guilty of contempt but under these provisions the lawyer is not. It may have nothing to do with the fact that it is drafted by the Bar Council. I realise, as I say, that the amendments were drafted by the Bar Council, but, even so, that seems to me to be an extraordinary proposition.

The revised amendments also seem to me to be confused about the requisite state of mind, or mens rea, on the part of the guilty lay person. They start off by saying that he is guilty if he intends to bring about a breach of a lawyer's duty to the court, or if he ought

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reasonably to appreciate that his actions would be likely to bring about a breach of that duty, which suggests some degree of mens rea. The amendments go on to say that the lay person is guilty whether or not he knew, or ought to have known, that the conduct likely to be brought about constituted a breach of the lawyer's duty to the court. So I am left unsure what precisely a lay person has to think or know or intend before he can be found guilty of contempt under this provision. I suspect that this is an attempt to impose strict liability for contempt. If so, I do not think for one moment that that would be appropriate.

As I explained in Committee, one of the objections to these amendments is that they impose a liability for contempt on a lay person--presumably a client or employer--which would not necessarily attach to a lawyer even if he did breach his duty to the court. In other words, these amendments propose that you are guilty of a contempt if you urge the lawyer to do something which may not be a contempt by him. That is a very odd conclusion to reach. I made this point laboriously in Committee and it is a point that the noble Lords, Lord Kingsland and Lord Meston, have perhaps sensibly not chosen to deal with at all in their speeches supporting the amendment. As both noble Lords know, the courts are rightly slow to penalise people for contempt, and it is far from certain that a lawyer who breached his duty to the court would be found to be in contempt of court. Both noble Lords know that that would depend entirely on the circumstances of the case.

I do not think it can be right, as a matter of principle, to say that a lay person is guilty of contempt if he acts in a way likely to bring about an act by a lawyer which may or may not be a contempt.

As I explained in Committee, there is no reason why lay members of the public, be they employers, clients, witnesses or anyone else, should know what a lawyer's duty to the court entails. It is for the lawyer to know that, and, if necessary, to explain why he cannot act in certain ways. If the lawyer betrays his duty to the court, it is he, and not his client or employer, who should be punished. That seems right to me. The lay person could quite understandably urge a lawyer not to tell the court something, unaware that suppressing a fact could just as much be a breach of his duty as telling a direct fib. I realise that lying behind these amendments is a concern that employed lawyers--

10.30 p.m.

Lord Meston: My Lords, but if the lay person, who is not answerable to a professional body, knows perfectly well that he is asking something improper of the lawyer, and the lawyer is subjected to such pressure that he gives way and does as he is asked, should not the lay person be answerable to the court?

Lord Falconer of Thoroton: My Lords, two points arise from that. First, the lawyer is there to resist. Secondly, the amendments make it clear that it does not matter whether or not he knows that it is a breach of duty.

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As I have said, I realise that lying behind these amendments is a concern that employed lawyers may be pressurised by unscrupulous employers to act in ways which are unethical. I think those fears are exaggerated. But in cases where an unscrupulous employer did attempt to interfere in the course of justice, he could, of course, be dealt with under the existing law, either for contempt--that is, for contempt of the existing law--or, in the most serious cases, for perverting the course of justice or for conspiring or attempting to do so. In the light of what I have said, I hope that the noble Lord, Lord Kingsland, will be sufficiently reassured to withdraw his amendment.

I now turn to the amendments proposed by my noble friends Lord Hacking and Lord Borrie. These are designed to ensure that if an employed advocate or litigator is dismissed from his employment because of a conflict between his duty to his employer and his compliance with the duties imposed by Clause 35--that is, his duty to the court--he shall be regarded as having been unfairly dismissed.

When this Bill was being drafted, my noble and learned friend considered whether it ought to include a provision of this kind, but concluded that it was unnecessary. The question of whether a dismissal is fair or unfair is one of fact for an employment tribunal. I have no doubt that an employed lawyer would succeed in an unfair dismissal claim, if he could show to the satisfaction of the tribunal that he had been dismissed because, for example, he had refused to obey an instruction from an employer as to how he should handle a case in court, when to obey that instruction would have put him in breach of the statutory duties imposed by Clause 35. Clause 35 already makes it clear that the duties it imposes on advocates and litigators override any other duty they might owe in civil law, including, for example, any contractual obligation to an employer.

The law on unfair dismissal was consolidated in the Employment Rights Act 1996. One of the banes of lawyers everywhere is that no sooner does one statute regularise and consolidate the law than other statutes start to provide exceptions and special cases. I am reluctant to do so in this case, in respect of employed lawyers, because I think it may prove confusing and unhelpful to provide in this Bill what purports to be a special rule for lawyers who are unfairly dismissed, when in fact all that rule will do is to restate what would have been the position in any case.

Having said that, I should make it clear that my noble and learned friend is willing to look again at this. One of the proper functions of the law is deterrence, and it may be that, on this occasion, there would be advantage in making it explicit on the face of the Bill that employed lawyers may not be penalised for adhering to their statutory duties, and that if they are penalised, they will have redress. My noble and learned friend will therefore consider this matter further, in discussion with his colleagues in the Department of Trade and Industry. If it is decided that such an amendment would be

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helpful, it will be moved in another place. On that basis, I hope that my noble friend Lord Hacking will agree to withdraw his amendment.

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