Lord Goodhart: My Lords, I am very grateful to the Government for having fulfilled their undertaking to produce a paving amendment for a conditional legal aid fund in the event that it proves practicable to establish one. That issue was discussed fully during earlier consideration of the Bill and I need say no more about it. I am happy to accept the other amendments in the group as they now stand.
On Question, Motion agreed to.
RECOVERY WHERE BODY UNDERTAKES TO MEET COSTS LIABILITIES
Clause 30, page 20, line 19, after ("subject") insert ("in the case of court proceedings")
After Clause 30, insert the following new clause--
14 Jul 1999 : Column 441
(".--(1) This section applies where a body of a prescribed description undertakes to meet (in accordance with arrangements satisfying prescribed conditions) liabilities which members of the body or other persons who are parties to proceedings may incur to pay the costs of other parties to the proceedings.
(2) If in any of the proceedings a costs order is made in favour of any of the members or other persons, the costs payable to him may, subject to subsection (3) and (in the case of court proceedings) to rules of court, include an additional amount in respect of any provision made by or on behalf of the body in connection with the proceedings against the risk of having to meet such liabilities.
(3) But the additional amount shall not exceed a sum determined in a prescribed manner; and there may, in particular, be prescribed as a manner of determination one which takes into account the likely cost to the member or other person of the premium of an insurance policy against the risk of incurring a liability to pay the costs of other parties to the proceedings.
(4) In this section "prescribed" means prescribed by regulations made by the Lord Chancellor by statutory instrument; and a statutory instrument containing such regulations shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(5) Regulations under subsection (1) may, in particular, prescribe as a description of body one which is for the time being approved by the Lord Chancellor or by a prescribed person.")
RULES AS TO COSTS
After Clause 30, insert the following new clause--
(". In section 51 of the Supreme Court Act 1981 (costs), in subsection (2) (rules regulating matters relating to costs), insert at the end "or for securing that the amount awarded to a party in respect of the costs to be paid by him to such representatives is not limited to what would have been payable by him to them if he had not been awarded costs."")
Transpose Clauses 29 to Clause (Rules as to costs) to after Clause 26
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 66, 68, 69 and 69A.
Moved, That the House do agree with the Commons in their Amendments Nos. 66, 68, 69 and 69A.--(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
RIGHTS OF AUDIENCE: EMPLOYED ADVOCATES
After Clause 32, insert the following new clause--
(". In the Courts and Legal Services Act 1990, after section 31 (as substituted by section 32 above) insert--
31A.--(1) Where a person who has a right of audience granted by an authorised body is employed as a Crown Prosecutor or in any other description of employment, any qualification regulations or rules of conduct of the body relating to that right which fall within subsection (2) shall not have effect in relation to him.
(2) Qualification regulations or rules of conduct relating to a right granted by a body fall within this subsection if--
(a) they limit the courts before which, or proceedings in which, that right may be exercised by members of the body who are employed or limit the circumstances in which that right may be exercised by them by requiring them to be accompanied by some other person when exercising it; and
(b) they do not impose the same limitation on members of the body who have the right but are not employed.").
14 Jul 1999 : Column 442
MOTION MOVED ON CONSIDERATION OF COMMONS AMENDMENT No. 70
That this House do disagree with the Commons in their Amendment No. 70.
Lord Ackner: My Lords, I beg to move that this House do disagree with the Commons in their Amendment No. 70.
So much in life is conditioned by sheer chance. At tea time on 28th January, I had the good fortune to move the Motion that Clause 31 should not stand part of the Bill. The earlier amendments, which were somewhat similar, had come on shortly before midnight and enthusiasm to take any definite step was clearly not in evidence.
Clause 31, which I successfully moved should not stand part of the Bill, has been reinstated by an amendment in the Commons. Therefore, I am seeking to repeat the success that I achieved in this regard on 28th January.
I was going to suggest that it is right that the Commons be asked to think again. But that is not an accurate way to put it. I really want the Commons to think for the first time because they have not been given the material upon which to exercise their judgment.
The first matter to consider in respect of the rights of employed advocates is what the present position would be if my original amendment had stood. What is the status quo? One would have thought that that was something that the Government might have pointed out in the process of attacking the amendment, which was successful on 28th January. I shall start by doing that now.
We all know that the solicitor in private practice has managed to achieve unfettered rights of audience provided that he passes the necessary requirements laid down by the Law Society and which have been approved. What has caused considerable concern is the position of the employed solicitor. That was dealt with in February 1997. The position is not that the employed solicitor has no rights of audience. He has different rights of audience from his colleague in private practice.
I refer to a letter which the then Lord Chancellor, the noble and learned Lord, Lord Mackay, wrote to my noble and learned friend Lord Nicholls of Birkenhead, a Lord of Appeal in Ordinary, who was then the chairman of the Lord Chancellor's Advisory Committee on Legal Education and Conduct. The material parts read as follows:
"The designated judges and I have now reached our decision on the remaining part of the Law Society's application for rights of audience for solicitors, that is that part which relates to employed solicitors".
He went on to say that,
"we have decided to approve the application as amended, subject to further restrictions and a proviso. As you know, the Law Society submitted a supplementary application in July 1995 which limited the cases in which employed solicitors could appear in the higher courts as the sole or senior advocate. We have concluded that it would be right to extend those categories. The effect of our decision will be that an employed solicitor appearing as an advocate with a leader will be able to appear in all cases in which a solicitor advocate can now appear. However, an employed solicitor may not appear as the sole or senior advocate in the following proceedings: criminal
14 Jul 1999 : Column 443
proceedings which have been committed for trial to the Crown Court, or any subsequent appeal. (Plea and Directions Hearings and other preliminary proceedings are not included in this restriction)".
And in regard to the civil situation:
"in the higher courts in any hearing which is intended to dispose in whole or in part of the merits of the case, and on behalf of a local authority in a hearing of an application in care proceedings, or any subsequent appeal".
The noble and learned Lord, Lord Mackay, concluded with the comment:
"We consider that our decision will further the statutory objective of widening the choice of persons providing legal services while maintaining the proper and efficient administration of justice".
When the press notice was issued on 26th February this was to be found:
"The Lord Chancellor commented: 'I am very pleased with this decision, which marks a further widening of legal representatives who can appear before the courts. The senior judges and I are satisfied that employed solicitors have in place sufficient qualification and training regulations, and codes of conduct, to ensure that the proper and efficient administration of justice will be maintained. While the decision will take time to make an impact, it marks a continuation of the sensible policies of reform which were initiated in the Courts and Legal Services Act 1990'".
So it looks on the face of it as if the noble and learned Lord the Lord Chancellor was content with the compromise that had been reached, in which in substance the employed solicitor in the type of case to which I have drawn attention had to have a leader; he could not do it on his own. It was no doubt contemplated that in due course, with sufficient experience of being led, he would, like any other junior, develop into a leader himself.
That is to be compared with the observation of the noble and learned Lord, Lord Falconer, some years later, on 26th January 1999, when, referring to the restrictions, he said:
"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 hate criticising any colleague who is not present in the House, but the noble and learned Lord has sought to go, when I assumed that he would be present. No doubt the noble and learned Lord the Lord Chancellor can seek to justify what was, in my respectful submission, a quite monstrous attack on the profession, a profession which has not sought to support what I am putting forward, which kept right out of the arena on this subject, because it knew from past experience that the matter would be treated as a trade union dispute between the two branches of the profession, which it is not. I say it is not, based upon the following further observations.
My noble and learned friend Lord Steyn, a Lord of Appeal in Ordinary, wrote an article based on the 1998 Kalisher memorial lecture, delivered on 13th October 1998. It was published on 8th July 1999. The material parts read as follows:
"But in my view the proposed granting of full rights of audience to lawyers working for the Crown Prosecution Service (CPS) would be a mistake. I make no criticism of the CPS or of the dedicated lawyers who work for the CPS. The point is an institutional one. On grounds of constitutionalism it would be a mistake to grant such rights to State employees; prosecution in the Crown Court by members of an independent bar places a brake on the executive. It
14 Jul 1999 : Column 444
is no answer to say that CPS lawyers already prosecute in the magistrates courts. The important cases where tensions between the liberty of the citizen and the interest of the executive arise are heard in the Crown Court. It is an illusion to believe that CPS lawyers work in the same culture of independence as barristers in private practice. Inevitably, CPS lawyers have to display a loyalty to the organisation which employs them and that imposes direct and indirect pressures on them. Failure to fit into the corporate culture of the CPS may result in dismissal or denial of promotion. That is one of the reasons why after careful investigation ACLEC [the advisory committee] by a majority advised against the conferment of full rights of audience on lawyers working for the state.
The advice given by ACLEC in June 1995 was not based on protecting any interests of the Bar. The majority was, amongst other things, concerned about 'the reality of the likely pressures on CPS employers' and about 'the extent to which, without the requirement of an independent advocate, those pressures might make it more difficult for the individual advocate to adopt a position contrary to the possible wishes and assumptions of the CPS as his or her employer'. While there has been much criticism in the press directed at the advice of ACLEC, not a single journalist has ever even in passing reported the true ground of our advice. On constitutional grounds I regard it as undesirable for State employees to be given rights of audience in the higher courts".
By contrast, I refer to a part of a letter written by Professor Zander to The Times on 18th December last year. He wrote:
"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 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".
Professor Zander is not known for his support to the Bar nor for any affection for the status quo.
There have been many supporting views of that approach. I shall not take up the time of the House in referring to more than one; that by Lord Benson in his commission's report at paragraph 18.43 to 18.45. It says:
"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 ... 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 what the noble and learned Lord, Lord Falconer of Thoroton, who has again left the Chamber, meant by the worst kind of restrictive practice? Is it 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? Of course it cannot.
14 Jul 1999 : Column 445
What I have brought before the House has been suppressed by the Government in this Chamber and in the Commons. That is why I have respectfully submitted that the other place be asked to think--and think for the first time.
Moved, That this House do disagree with the Commons in their Amendment No. 70--(Lord Ackner.)
Baroness Crawley: My Lords, I hope that the House agrees with the Commons in their Amendment No. 70. I reiterate the conviction that I expressed back in the long dark nights of January when we last rehearsed the arguments on what was then Clause 31, that employed lawyers should not be stopped because of their employed status from exercising their rights of audience. The obstacles restricting the rights of employed lawyers represent an injustice that cannot be allowed to continue in a modern, reformed legal service. Despite what we have heard from the noble and learned Lord, Lord Ackner, those obstacles also represent more than a hint of protectionism.
It is always instructive to hear from the noble and learned Lord, Lord Ackner, but he treads a somewhat lonely path in his continued insistence that any extension of employees' rights of audience should be opposed, particularly in the light of the fact that my noble and learned friend the Lord Chancellor has insisted on many occasions that the highest standards of qualification and training will prevail under the reforms.
Earlier this evening the noble Lord, Lord Thomas of Gresford, was insistent in his view that the legal profession is very competitive. If that is so and if the proper standards are put in place and safeguarded, there is nothing of substance to fear from the amendment. I ask the noble and learned Lord, Lord Ackner, not to pursue his objection.