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Lord Borrie: My Lords, in the early part of his speech the noble and learned Lord, Lord Ackner, referred to the 1997 extension of the rights of employed lawyers to appear in certain cases in certain circumstances. Of course, everything that the noble and learned Lord said was accurate, as one might expect. He did not say, although one might infer it because he referred to the legislation from which this emanated as being that of 1990, that there had been many years in between in which there had been a to-ing and fro-ing between the different organisations involved--the Law Society and ACLEC and so on. It took all those years to get what the noble and learned Lord seemed to think was a "fair compromise". I should perhaps describe it somewhat differently as a fudge. It reduced the real possibilities of choice of the litigant with which we ought to be concerned.

The litigants in the cases of which I am thinking in civil matters are companies, firms which may have lawyers in their employ in their legal department. Under the 1997 dispensation--the situation was even worse before that--irrespective of his wishes, the employer could not use one of his employed lawyers to represent

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the company in court. I sought to put forward my view at the earlier stages of the Bill. To my mind, companies which employ lawyers should have a complete choice. They should determine, on the best advice available, whether to use an independent barrister, or, let us say, an independent QC to lead one of his own in-house lawyers as a junior; whether to use employed staff to appear only in interlocutory proceedings and perhaps use an independent practitioner at trial proceedings, and so on.

I keep emphasising the word "choice". The noble and learned Lord was keen to have a code--a list of insistent provisions that all employed lawyers appearing in court must, above all, be concerned with their duty to the court. I have worked with employed lawyers in both the public and private sectors. I took the view that to assert without evidence that an employed lawyer was incapable of giving independent advice or of representing his client with all due integrity to the court, and of giving advice that his employer may not wish to hear, was nonsensical. An employed lawyer knows, as does his employer, that he is being paid to give of his best. That includes giving advice that the employer may not particularly wish to hear.

I must not speak for too long but I should like to comment in relation to the Crown Prosecution Service. The noble and learned Lord, Lord Ackner, dealt with that in the latter part of his speech. I find it difficult to draw a complete dividing line between those trials--and for good or ill, there may be more in future than in the past--which are settled and determined in the magistrates' court and those which are settled in the Crown Court. The noble and learned Lord, Lord Ackner, seemed to imply that there is some rigid division whereby Crown Prosecution Service employees are assumed to be perfectly ethical and to have complete integrity and all the rest of it to ensure a proper trial in those courts. But should the trial happen to be in the Crown Court, those selfsame employees are "incapable" of having the integrity and the ethical standards that we all want to see.

It seems to me again that it should be a matter of choice. In this case, the Crown Prosecution Service is surely sufficiently well managed to know when it wishes to engage its own lawyers and to give them experience in the different kinds of courts, whereas at the moment it can never give them experience in the Crown Court. In other cases it may decide that it needs someone from the independent Bar, either as a leader, or perhaps as the sole prosecutor. Let us have a little more choice and let employed lawyers give of their full quality and qualifications--assuming, of course, they do have the correct qualifications; without them they could not appear--and let us accept the Commons view on this matter.

Lord Goodhart: My Lords, we are unable to agree with the noble and learned Lord, Lord Ackner. In saying that, I have to say that some of my noble friends strongly agree with him. Indeed one of them is sitting immediately behind me and I think that your Lordships will shortly have the benefit of his views. All of my

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noble friends who agree with the noble and learned Lord are lawyers with long experience of criminal cases whose views must be listened to with great respect.

But the view of my party, as was made clear in the other place, and indeed my own view, is that the Crown Prosecution Service--it is the Crown Prosecution Service that this amendment is really about--should have rights of audience. We have to remember the background to the CPS. It was introduced because the old police solicitor was seen--and I think rightly seen--as too closely connected with the investigation of crime. The CPS was introduced to be a body independent of the police and the investigation process. That is what it should be and what I believe it is.

We all know that the CPS has been through difficult times, but I do not believe that the standards of integrity of employees of the CPS are less high than those of lawyers in independent practice. Of course there are pressures on members of the CPS, but equally there are pressures on barristers in private practice who are instructed by the CPS. Those pressures may in some ways be even greater. If an independent barrister does not do what the CPS wants, he can be cut off by the CPS without any remedy--that can be extremely damaging to his practice--whereas a CPS employee has full rights under the employment legislation to protect his position. Therefore I do not think that it is right to talk of pressures being on one side only.

I believe that the right to appear as an advocate in the Crown Court will attract more candidates of high quality to the CPS, particularly from those who are already advocates in independent practice. They will simply not transfer to the CPS if they are to be condemned to silence in the Crown Court. I believe that interchange between the CPS and the independent profession is particularly valuable. But it will not happen if those in independent practice lose their rights of audience when they join the CPS and those in the CPS have no experience of advocacy in the Crown Court.

The arguments in favour of allowing the CPS to have rights of audience are, I believe, quite different from the arguments that we on these Benches raised earlier against the setting up of a public defender system with rights of audience. Indeed, giving the CPS greater rights of audience I believe strengthens the view that defence should remain independent of the state. We do not think that adverse consequences will follow from giving the CPS rights of audience. That must, of course, be phased in over time. It is not appropriate that the present CPS staff with limited experience of advocacy in the Crown Court should immediately take over the prosecution of difficult cases. I certainly hope that there will always be a role for independent prosecutors in cases brought by the CPS. But that, I believe, is something that should be left to the discretion of the Director of Public Prosecutions.

Lord Hacking: My Lords, your Lordships have heard quite a lot of argument relating to employed lawyers with the CPS and I certainly do not intend to repeat that here. I regret, when the noble and learned Lord moved his Amendment No. 70A, that he made no

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reference to Clause 37 of the Bill which sets out a clear duty on all advocates providing advocacy services. Clause 37 states that they have,

    "a duty to the court to act with independence in the interests of justice".

I had subsequent correspondence with the noble and learned Lord after some amendments that I moved which were designed to give comfort to those who might be concerned about employed lawyers appearing in court. My noble and learned friend, in my view quite rightly, said it was unnecessary to use the protective mechanisms that I was proposing because the duty was so clearly set out as a statutory duty in Clause 37.

I listened with great care to the noble and learned Lord, Lord Ackner. He made some omissions--not only the omissions pointed out by my noble friend Lord Borrie but also he did not refer to the position of employed barristers. There was some compromise after the Courts and Legal Services Act reached the statute book concerning my side of the profession but the position of employed barristers--and there are many who are employed as barristers and not as solicitors--was not addressed at all. It has not been addressed; it is only now being addressed in the Bill.

After your Lordships had passed the Bill and sent it to another place, I had the opportunity of talking to an employed barrister. He gave an account of how he had been in private practice in chambers in Manchester for 10 years or more. He subsequently accepted an in-house legal position with a publishing company. As with all publishing companies, emergencies arise--injunctive relief and so forth is needed--and he had to go very quickly to an open court in the High Court in order to represent his client. Although the employed barrister had been dealing with the problem for only a few hours in his office, he pointed out the sheer inefficiency of the necessity to brief an outside barrister to appear in the High Court. Instructions had to be given orally, first of all over the telephone and then as he and the barrister walked to court together. In those circumstances, there was no way in which the barrister could be properly briefed to appear efficiently and well for the client.

That is an example of how we should be looking at the problem. We should be looking at the interests of justice and at the interests of the efficient conduct of justice. In the circumstances I have outlined to you, a barrister with 10 years' experience in the High Court and with a detailed knowledge of the particular case was, under the present rules, prevented from presenting his client's case to the judge. I dare say that the judge would have much preferred to have had someone with a knowledge of the case in front of him, rather than the badly-briefed barrister. The barrister did not have the knowledge because there was no time for it to be imparted to him.

This is a very important amendment--it is certainly considered important outside the House--because it affects all employed lawyers, whether they be solicitors or barristers. I hope that the noble and learned Lord will not press his Motion.

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