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Lord Henley: I echo the concerns expressed by the noble and learned Lord, Lord Ackner, and it is unnecessary to repeat them. I have only one question to put to the noble Lord, Lord Thomas. Obviously this amendment will have implications for the Bar in that it extends the right of audience for solicitors yet further. When the noble Lord responds to the government's response, will he say what consultations he had with the Bar Council and what concerns the Bar had about his particular amendment?
The Lord Chancellor (Lord Irvine of Lairg): I am grateful to the noble Lord, Lord Thomas of Gresford, for moving the amendment, and for raising what is undoubtedly an important subject. Clause 42 contains provisions to abolish committal proceedings for indictable-only offences, and to remove the pre-trial stages of prosecutions for those offences from magistrates' courts to the Crown Court. One of the results of those provisions is that Crown prosecutors and defence solicitors who can now handle those procedures in magistrates' courts will no longer be able to do so because they have been moved to the Crown Court.
The noble Lord has rightly drawn attention to the shortcoming which arises. I am grateful to him for having done so. But, important though that shortcoming is, it is only part of a much wider deficiency in the current arrangements for dealing with rights of audience. The subject ought not to be dealt with
Perhaps I may take this opportunity to explain. The current regime for determining rights of audience, and indeed rights to conduct litigation, is, as the noble and learned Lord said, set out in the Courts and Legal Services Act 1990. The Committee will no doubt remember the debates in this place and elsewhere that surrounded that legislation. My predecessor was right to seek to open up the provision of legal services, especially rights of audience, so that the question of who could appear in the courts was based on something other than old-fashioned restrictive practices.
The provisions in Part II of the 1990 Act have singularly failed to achieve what was hoped for them. It is arguable that the only tangible achievement is that, seven years on, 596 solicitors in private practice have been awarded the right to appear in the higher courts.
As the Government outlined at the general election, we are not satisfied that the current restrictions on the exercise of rights of audience, in particular, for qualified lawyers working for the CPS, are in the public interest. Moreover, the existing procedures in the Courts and Legal Services Act for granting or extending rights of audience and rights to conduct litigation have proved to be unacceptably labyrinthine and slow.
Consequently, the objective of the 1990 Act, which was to provide for a wider provision of legal services, and a wider choice of person supplying them, has effectively been frustrated. Under the existing procedure set out in the 1990 Act, if an authorised body such as the Law Society or the Bar Council wishes to make a change in its rules of conduct or qualification regulations relating to rights of audience or rights to conduct litigation, it must first seek the advice of my advisory committee on legal education and conduct, before making a formal application to the Lord Chancellor.
The Lord Chancellor is then obliged to refer the application back to the committee for its advice to him, and to the Director General of Fair Trading for his advice. Next, the Lord Chancellor must await any further comments which the authorised body wishes to make before deciding whether to approve the application. The Lord Chancellor must then write to the designated judges under the Act--the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, and the Vice-Chancellor--to inform them of his decision, and the reasons for it; then to request their decisions and reasons. Only if the designated judges and the Lord Chancellor unanimously approve an application can the relevant change in the rules be made.
The inevitable consequence of that lengthy procedure is that even minor and uncontroversial rule changes typically take many months to approve, while more controversial applications can take many years. Let me give an example. The Law Society applied for rights of audience in the higher courts in April 1991. That part
A fundamental reshaping of the provisions in the 1990 Act is required. I agree with the noble Lord that changes are needed, but I have to say that they should go very much wider than the present amendment implies and very much wider than the scope of the present Bill permits. We need a fresh modern approach to rights of audience. Parliament needs to be given an early opportunity to consider afresh the provisions required to widen rights of audience.
I am actively considering what proposals to bring forward. I shall shortly embark on consultations with the legal professions about the way in which their rules impact on the exercise of rights of audience. A comprehensive answer is now needed to the gaps in rights of audience, and to the machinery put in place in 1990. The noble Lord has done this place a strong service by raising the issue today; but, in the circumstances, I would ask him to withdraw his amendment so that this issue can be considered further and properly in its wider context. I look forward to returning to this place in due course with the Government's clear proposals for a modern regime on rights of audience.
Lord Ackner: Before my noble and learned friend sits down, I understand the criticism that he has made on the length of time it took for the decision to be made about rights of audience of employed solicitors. It took far too long. There may be a number of reasons for that. But is he criticising the quality of the decision, because the decision resulted from a majority decision of his own advisory committee? It was then put to the Lord Chancellor and the four designated judges. They modified that decision in a manner which need not be described in detail. If he is criticising the quality of the decision, he is criticising not just his predecessor but all four designated judges.
The Lord Chancellor: I am not sure if I should, on that account, abstain from doing so, but I do not do so today. As I have said, my view proper is for me to return to this place with our clear proposals when all these matters can be fully and exhaustively debated.
Lord Henley: We are grateful to the noble and learned Lord for taking the trouble to come to the Committee to make what is an important announcement about these matters. I have just one question. I suspect it is one to which he may not necessarily wish to respond at the moment. I put it in hope. Will he say something about the time-scale of the review that he has
Lord Thomas of Gresford: I am grateful to the noble and learned Lord the Lord Chancellor for taking the trouble to come here to give such a full reply to my amendment. I must confess that I have a somewhat chequered past in that for a period of five years I was a solicitor and then sought to transfer to the Bar. In those days--I am talking about the late 1960s--it was necessary for me to go into purdah for two years when I was not allowed to be one thing or the other. I then had to take the final and intermediate examinations of the Bar together and during the two-year period I filled my time by lecturing.
By the time I was admitted and called to the Bar, I had a certain view of its restrictive practices which have remained with me. I have always believed that to use the professional distinction between barrister and solicitor in a restrictive way is wrong and unnecessary. When it comes to higher advocacy it is, and for a long time has been, my considered view that experience of the Bar and daily contact with the courts and the judges is of incalculable benefit to the public. The Bar is far better organised to be able to give a service of advocacy which solicitors cannot give. Perhaps I would not go all the way with the noble and learned Lord the Lord Chancellor if his proposal is entirely radical. However, it is my view that the Bar can compete with solicitor advocates without any problems.
The other point of view is that solicitor advocates can be of excellent quality. I have had the privilege of leading a number of solicitors as my juniors who have received the certificate. They have provided me with the most excellent service and with a contact with the client that one would not normally expect. I am sure that that benefits the public generally.
I return to this little amendment. It is extraordinary that today, I, as a solicitor, could go into a magistrates' court, submit that there was no case to answer and have it stopped there and then, the charges dismissed and my client a free person without any further worry. However, tomorrow, if the Bill goes through as I assume it will, and the matter is sent directly to the Crown Court, I, as a solicitor, will no longer able to do so.
I recall that many years ago as a solicitor I appeared in a magistrates' court in a manslaughter case involving the death of an eight week-old baby. My client was acquitted following a submission of no case to answer before the magistrates of Glyn Ceiriog in a remote valley in North Wales. That meant that at an early stage the individual was relieved from the possibility of a serious charge. My amendment suggests merely that a solicitor who has control of the case and is completely au fait with all the facts and circumstances should be able to go to a Crown Court judge and, on the papers, be able to submit that there was no case to go before a jury.
When one goes that step beyond and comes before a jury in a criminal case where the question of guilt or innocence is finally to be determined and where the higher skills of advocacy are to be employed, that is a different situation. I reserve the right to make comments on that should the noble and learned Lord put forward future proposals.
In answer to the noble Lord, Lord Henley, although I normally consult with the Bar Council on matters of concern to it--and I am currently in discussion with it on legal aid matters, for example--on this matter I have not received any official communication nor have I been in communication.
It so happens that with the background that I have outlined and with that chequered career, I have kept myself far away from Bar politics and from defending the restrictive practices over many years. With that caveat to the noble and learned Lord, I beg leave to withdraw the amendment.