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principle, subject to reasonable exceptions. The amendment--now contained in clause 15(3)(d)--excluded from its ambit the rights of audience in the superior courts that solicitors currently enjoy. The question in another place was whether that principle needed to be spelt out in the Bill. I can now tell the House that the Government have decided to accept it, and to include it in clause 15. It may be generally described as the principle of non-discrimination by a practitioner between prospective clients in any area of law in which he practises as an advocate. Provision will, however, be needed to ensure that employed advocates may be allowed, by the operation of the machinery set up by the Bill, to act only for their employers in whatever court or proceedings in which they may have a right of audience.The Government support that principle, considering it to be in the general interests of prospective clients and the administration of justice. For that reason, having consulted the Law Society and the Bar Council, they propose that clause 15 should provide for a wider application of it than is achieved by subsection (3) (d). They propose that it should apply to all rights of audience granted by a professional body, in whatever court or proceedings.
The Government will introduce their own amendment to give effect to that policy in due course. What is more--consistent with the principle of non- discrimination--they will introduce amendments to apply to the Bar the Race Relations Act 1976 and the Sex Discrimination Act 1975 to cover discrimination in professional relationships, both at the Bar and between barristers and those instructing them.
Advocacy, litigation, conveyancing and probate services are the main services covered by the relevant part of the Bill.
Mr. Alex Carlile (Montgomery) : Can the Attorney-General confirm that the principle of non-discrimination will ensure that there is no discrimination against those potential clients who are in receipt of legal aid?
The Attorney-General : It would not be right for me to anticipate the formulation of the amendment that the Government will introduce to give effect to the principle of non-discrimination. When it is introduced, there will be ample opportunity for the Standing Committee to discuss it and I trust that the Committee will be graced by the presence of the hon. and learned Member for Montgomery (Mr. Carlile).
The four categories--advocacy, litigation, conveyancing and probate--are very different in character, their only common feature being that under our law they can be undertaken for reward only by a professional with specific qualifications. Part II of the Bill provides three separate ways to permit development in those areas. The first covers advocacy and the conduct of litigation, which are the two categories of work upon which the administration of justice by the courts crucially relies. That first way employs a process by which an appropriate body may be authorised to grant to its members the right to undertake advocacy and litigation rights. That process is developed from the present statutory and common law arrangements, in which the judiciary is involved, whereby such rights are granted. Although the Bill provides the mechanism as well as the impetus for change, it also preserves the position of solicitors and barristers by providing that the Law Society
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and the Bar Council shall be deemed to have granted to solicitors and barristers the rights that they respectively hold at present. They will be deemed to have been authorised to do so consistently with the requirements of the Bill by virtue of their existing regulations and rules.If a new body were to seek authorisation to enter that area or if the Law Society or the Bar Council wished to grant an extension or alteration of existing rights to their members, there would be a need under the new arrangements to secure the approval of the Lord Chancellor and the designated judges in accordance with the new procedure. The road which may lead to such approval is mapped out in schedule 4. It leads first to the Lord Chancellor's advisory committee on legal education and conduct. That committee will be established under clause 17, and it must first consider the matter. There will be a lay majority on the committee, to illustrate the importance of the public's interest. A Law Lord or a judge of the Supreme Court will be in the chair. The committee will have the general duty of assisting in the maintenance and development of standards in the education, training and conduct of those offering legal services.
The second stage will be for the Lord Chancellor to consider, with the advice of the committee and of the Director General of Fair Trading, whether in connection with the proposals the members of the applicant body will be suitably qualified and whether they will be subject to appropriate codes of conduct, which will be enforced. The third stage will be for the Lord Chancellor to inform the four most senior judges of the Supreme Court either that he proposes to give his approval to the application or alteration, or alternatively why he proposes to withhold it. Those judges, called in the Bill the designated judges, are the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice- Chancellor. If the Lord Chancellor or any of the designated judges is satisfied that approving the application would be incompatible with the statutory objective or the general principle established in clause 15, he must refuse his approval. If, on the other hand, each of the judges concurs with his proposal to give approval, approval will be given.
The Government consider that those arrangements continue, in an appropriate way, the long-established involvement of the judiciary in the control of proceedings in the courts in which they sit. However, the arrangements regulate the exercise of judicial involvement in that area by reference to the statutory objective and the general principle established in the Bill. For example, if a designated judge were to refuse to concur with the Lord Chancellor's proposal to approve an alteration to the rules of conduct of, say, the Law Society, his refusal would have to be compatible with his specific duty, imposed by clause 16, to act in furtherance of the statutory objective and in accordance with the general principle. If it were not so compatible, it would be subject to judicial review. The Government believe that the establishment of safeguards for the public, by the means that I have described, is a proper and important function of the Bill. It is intended to secure, as a result, that only those who are adequately trained, experienced and regulated will become newly authorised to exercise rights of audience or rights to conduct litigation.
Advocacy is not only a particular skill ; it is a particular service to the courts and to the public, and one upon which the courts implicitly rely. It is important that all those
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wishing to appear in the higher courts should be appropriately trained and qualified. It is important also that the courts can always rely upon an advocate placing his duty to the court before his duty to his client.The framework in part II of the Bill permits change to evolve in the light of all those considerations, and subject always to the over-arching safeguard that the proper and efficient administration of justice must be maintained. The safeguards rightly embodied in the Bill in no way detract from the aim of removing unnecessary restrictions, which is the policy which part II is intended to implement. Yet they are wholly compatible also with the great importance that the Government attach, as the Lord Chancellor has said, to the continued existence of a vigorous and independent Bar. The second way of permitting development to be created by part II of the Bill concerns the right of financial institutions and others to do the conveyancing work that is currently restricted to the legal profession, notably solicitors and licensed conveyancers. The Bill sets up an authorised practitioner scheme. The proposals will supersede those of the Building Societies Act 1986, which have not been implemented and which will be repealed.
The proposals in the White Paper would have enabled the Lord Chancellor to recognise professional and other bodies as suitable to grant their members the right to provide conveyancing services to their borrowers, subject to appropriate standards of competence and conduct. However, when more detailed development of this proposal was carried out, it led the Government to conclude that, on balance, it was better to set up a single regulatory body responsible for the authorisation, supervision and discipline of the new authorised practitioners.
The Bill therefore establishes a new and independent Authorised Conveyancing Practitioners Board to take on those functions. It will have the duty to seek to develop competition in the provision of conveyancing services. Its constitution, procedure and powers can be found in schedule 5. The board may make rules providing for a compensation scheme for clients who have suffered loss through dishonesty by authorised practitioners or their employees. Conveyancing work by solicitors and licensed conveyancers in private practice will continue to be regulated by the Law Society or by the Council for Licensed Conveyancers. The board will be required to set up a conveyancing ombudsman scheme, to which all authorised practitioners must belong. The conveyancing ombudsman, not the board, will deal with the individual customer's complaints.
The Government recognise that, for most people, the process of buying and selling their homes is the most important financial event of their lives and accordingly the Government take consumer protection issues in that area very seriously. A mainstay of consumer protection under the authorised practitioner scheme will be the regulations on competence and conduct to be made by the Lord Chancellor under clause 39. The matters which may be included in those regulations are based on those set out in the code of practice, whose main principles were published in the Green and White Papers last year.
As the Lord Chancellor has said in another place, those regulations will be the subject of wide consultation and
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they will be subject to the affirmative resolution procedure. It will be one of the functions of the board to make arrangements designed to ensure that authorised practitioners are complying with those regulations. The Lord Chancellor has wide powers under clause 39 to make regulations covering not only matters relating to competence and conduct, and the protection of the interests of clients, but also the maintenance of fair competition between authorised practitioners and others providing conveyancing services. Those provisions are designed to develop, with proper safeguards, further competition in the conveyancing market. The Bill will prevent the tying-in to a mortgage of an obligation to purchase other services.The Government do not believe that the existing national network of independent solicitors will be undermined by these initiatives. We are well aware of the importance of ready access to legal services for the public, and of the importance of local solicitors' firms in all our constituencies to secure that. But I think that solicitors will be well able to compete to retain conveyancing business in the future. A survey carried out by the National Consumer Council showed that over half the population would prefer to have conveyancing done by an independent solicitor rather than by a lending institution, and that confirms the findings of a separate Law Society survey. I am sorry to take so long, Madam Deputy Speaker, but the Bill covers a wide ambit and I hope to cover the main provisions. I have nearly finished.
The third way to permit development which is established by the Bill consists of new arrangements about probate work. The Bill proposes that banks, building societies, insurance companies and their subsidiaries should for reward be able to prepare applications for a grant of probate. At present that work is restricted to solicitors, barristers and notaries. Institutions will be required to belong to a suitable complaints scheme.
There is also provision for the Lord Chancellor to extend to professional or other bodies, having consulted the advisory committee and the President of the Family Division, the right to authorise their members to do this work if they satisfy statutory standards of conduct and of competence.
The Government attach much importance to the need to maintain the present high standards of competence and integrity in the provision of legal services. We believe complaints procedures that are truly effective are an important way to achieve that. The Bill accordingly provides for the creation of a new legal services ombudsman, with a significantly wider jurisdiction and greater powers than were given to the office of the lay observer, which it replaces.
The ombudsman will be able to investigate the handling of complaints by professional bodies that relate to solicitors, barristers, notaries and licensed conveyancers ; to investigate the original complaint ; and, where a complaint is found to be substantiated, to recommend that compensation be paid by the practitioner or by the body concerned.
The Law Society has also put forward to the Government proposals to amend the legislation governing its own complaints handling powers and procedures, and in particular to allow it to direct solicitors to pay compensation to clients who have received inadequate
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professional services. The Government have welcomed that initiative and they intend to bring forward the necessary amendments as soon as possible.The Bill also removes or clarifies a number of miscellaneous, statutory or common law restrictions on the organisation and practice of the legal profession.
Practitioners will no longer be stopped by law from making even limited kinds of conditional fee arrangements, and barristers will be able to enter into contracts for their services.
The statutory ban on solicitors entering into partnerships with other professionals will also go. That will not, however, stop the Law Society adopting professional rules to deal with such matters if it wants to do so. The point is that the Government see no justification to retain such a provision in main legislation. The Law Society would also be enabled to make rules regulating the formation of partnerships with lawyers from other jurisdictions. Secondary legislation under the Companies Act 1985 will also be brought forward to allow such partnerships to be formed with more than 20 partners, provided that the majority of the partners are subject to regulation by an appropriate professional body in the United Kingdom. That would remedy a concern raised in another place about the practical scope for such practices to be established. Further provisions in part III of the Bill amend the qualification criteria for judicial appointments to reflect the changes in the arrangements for grants of rights of audience, and they revise the judicial pensions legislation, primarily to provide more fully for widowers' pension rights. Part IV amends the Solicitors Act as regards the regulation of the solicitors' branch of the profession and part V amends the law governing arbitration to permit an official referee to act as the sole arbitrator with the approval of the Lord Chief Justice.
Finally, there are a number of miscellaneous amendments which, for example, make provision in connection with the liability of magistrates and their clerks in actions for damages, and the award of costs in magistrates courts.
Heaven knows what tortuous transactions within the shadow Cabinet led to the decision to invite the House to vote against the Bill. It is a decision of which the right hon and learned and, I suspect, rather unhappy Member for Aberavon (Mr. Morris) on the Opposition Front Bench is the mournful inheritor. He will find it an inheritance of the kind that the Romans called hereditas damnosa--because he cannot get rid of it, and yet for all his considerable eloquence it will cost him his credibility to defend it.
As Mr. Marcel Berlins asked in The Guardian last week : "Just what is the Labour Party's policy towards the Lord Chancellor's Bill on the legal profession? Does anyone know?" For this is a Bill which simplifies going to law, and makes it quicker, more convenient and more cost-effective. It widens the choice of practitioner--whether advocate, litigator or conveyancer ; it stimulates competition ; and it fortifies the client who has a grievance by creating an ombudsman for conveyancing and an ombudsman for legal services.
By all those measures and more besides the Government intend and believe that the public will have better access to justice. The Opposition wish the House to vote against the proposals, but I commend them to the House.
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5.7 pmMr. John Morris (Aberavon) : I beg to move, To leave out from "That" to the end of the Question and to add instead thereof : "this House declines to give a second reading to the Courts and Legal Services Bill [Lords], which proposes substantial changes in the organisation of the courts and legal profession, but which fails to ensure sufficient resources for the efficient administration of the county courts ; which fails to make the financing and administration of the courts and legal system accountable to this House ; which neglects to deal with the denial of eligibility for legal aid, and fails to address itself properly to ensuring wider opportunities for legal representation ; and which misses the opportunity to modernise the system of selection and appointment of the judiciary."
It was interesting that in his last few remarks--perhaps it was a Freudian slip--the Attorney-General was conceding that the Bill would be the interitance of an hon. Member on this side of the House ; we noted that with glee. Perhaps he had not thought out the matter, because he was not looking at his notes at the time, but we take that concession and we shall use it fully, perhaps in a reasonably short time before the next election comes. We thank the Attorney-General. Hardly anyone would quarrel with the Government's aims, as expressed in the Green Papers, to ensure that the public has the best possible access to legal services and that those services are of the right quality for the needs of the client.
The quarrel, which goes wider than the political spectrum, as the Attorney- General knows, is whether those aims will be achieved, in particular since the Government rely on free competition and the discipline of the market to achieve them. The writer of the Lord Chancellor's Green Papers and the White Paper is the handmaiden of the Department of Trade and Industry. They reek of the furnaces of that Department. I suspect that the fire had been lit before the present Lord Chancellor took office, probably unbeknown to his predecessors. It is against that background that we should judge whether the philosophy of market forces is appropriate for achieving the best for the consumer in an area where so much is taken on trust, and where integrity and independence are so vital.
It is sad and wrong that this is the first opportunity that the House, as the provider of supply, has had to discuss any of the proposals, which were first published as far back as January 1989. That underlines the need to transfer accountability for those parts of the Lord Chancellor's Department that deal with administration and finance, now that it is a significant spending Department, to the House.
The purpose of the Queen's courts, meeting as we do but a stone's throw from Westminster hall, is to serve the state and the citizen and in so doing to hold the balance between the Queen's peace, her Government and her subjects and between subject and subject. The legal profession is the servant and the agent of those needs and exists for that purpose. It must be independent and fearless. The judiciary, drawn from that profession, and in whom is entrusted the holding of the balance, must of necessity be independent. Too frequently these days it is a popular cry to attack the judges. From time to time, I fear that individual judges deserve criticism. However, where there is a need for independence and
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integrity no one can be better trusted than judges, hence the need for them to exercise the greatest care when making extra-judicial comment.However well-merited a proposal may be, it is of the utmost importance to weigh it against the background of whether it undermines the independence of the profession or of judges. Labour Members do not disagree with the Government's proposals to open up advocacy to those who are properly qualified ; hence, perhaps to the disappointment of the Attorney-General, we shall not vote against the Bill. We are concerned about its implementation and what is omitted from it--in the time-hallowed way of objecting to proposals as a whole because of omissions.
I make quite clear where our starting point is, in case it has escaped the attention of the Attorney-General. We shall not take up the cudgels on behalf of any part of the profession for the sake of obstructing the increased availability of talent in advocacy where it is of benefit to the client. I have no intention of defending over-restrictive practice for the sake of it. I fear that I am old enough to remember as a young circuiteer the restrictions on appearing off-circuit. Over the years, the Bar has rightly dismantled those restrictions.
Fears have been expressed about some of the present proposals and certainly about some of the original proposals. Some of those fears have been reduced, and the present proposals are an improvement on the Green Papers. With a little more groundwork and consultation, some of those fears might have been avoided.
I wish to ensure that the independence of the judiciary, which I hope we all treasure, is not undermined by a bureaucracy which owes itself to the favour of a Minister, who after all is a political figure. The Lord Chancellor's advisory committee must be funded through the Consolidated Fund to mark its independence and staffed to ensure, so far as practical, independence similar to that of the judiciary. Lord Rawlinson, a distinguished former Attorney-General, said in a dramatic part of his speech in the other place that nowhere outside a Marxist state does a Minister appoint judges and have the ultimate say in who may appear in courts before those judges. The Lord Chancellor is therefore right to distance himself from too direct an involvement in the latter. It is right that he at least shares the ultimate responsibility with senior judges. Any attempt to water down the collective responsibility of judges, who have exercised such rights since time immemorial, would be wrong. We shall consider how the collective wisdom of judges is exercised. It is important that they are perceived not to be obstructive to the aims of the Bill if it is approved by Parliament. As the Attorney-General said, they will have to take account of the Act, and the advisory committee, with its lay majority, will be open to judicial review of their actions. To many, it is inconceivable that they would be obstructive, but it has been said and we should face up to it. I do not share that view.
Why do I lay such stress on the distancing of the licensing role of the Lord Chancellor compared with judges? For the administration of justice, Labour intends to create a Department that is directly answerable to the House. We are all aware of the anger of many hon.
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Members when a judge makes imprudent remarks, perhaps in a particular type of case. With a Minister directly answerable to the House, one can imagine a similar outcry when an advocate is denied his right to practise. It will therefore become even more important for the Lord Chancellor or his successor to minimise his involvement.How important it is to have fearless and independent advocates when the Executive must be challenged in, for example, the process of judicial review, which involves many immigration cases, or where the cause is so odious that it is only because advocates are independent and fearless that the client can be satisfied that his case is being properly fought and that popular belief does not attach to the advocate the odium of the cause.
Sir Hugh Rossi (Hornsey and Wood Green) : I am sorry to interrupt the right hon. and learned Gentleman, but I am not certain that I have correctly understood him. Having stated the importance of an independent legal profession, he seemed to suggest a diminution in the independence of the judiciary by making their pronouncements subject to criticisms and overview in the Chamber. That would lead to political interference in judicial independence. That appertains in some systems, but I hope not in a parliamentary democracy such as ours.
Mr. Morris : If the hon. Gentleman looks carefully at my remarks he will discover that I said nothing of the kind. I underlined the Attorney- General's commitment to judicial review of any licensing in which judges are involved. I pointed out that, unhappily, judges are criticised inside and outside the House. When a Minister is directly involved in licensing, it will be not the judges who are criticised but the licensing and the actions of the Minister. That is the point that I was seeking to make. I hope that the hon. Gentleman will understand if I made it badly.
It would be a sad day if the finest advocacy were not available for odious cases to ensure that in the dispensation of justice every argument had been advanced in the exercise of every man's right under Magna Carta.
Dame Elaine Kellett-Bowman : On a point of order, Madam Deputy Speaker. Am I wrong in believing that it is not possible to criticise judges in this House other than on a motion of both Houses?
Madam Deputy Speaker (Miss Betty Boothroyd) : The hon. Lady is quite correct, but I have not heard the right hon. and learned Member for Aberavon (Mr. Morris) criticise a particular judge.
Dame Elaine Kellett-Bowman : The right hon. and learned Gentleman was saying that judges can be criticised in the House, which is not so.
Mr. Morris : The hon. Member for Lancaster (Dame E. Kellett-Bowman) misunderstood my point. I am saying that, unhappily and regrettably, judges are criticised, whether one likes it or not. It is no good the hon. Lady shaking her head. I have been here long enough to know the correct processes. The hon. Lady has also been here a long time and knows that, rightly or wrongly, judges are criticised. I was not criticising judges but saying that when a Minister is directly answerable to the House, taking over some of the responsibilities of the Lord Chancellor's Department and being involved in licensing, more
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criticism will be made of him than when a judge occasionally makes an intemperate remark that does not find favour with people inside and outside the House. I hope that I have made my point abundantly clear. I thought that I had made it clear the first time, but I certainly made it clear the second time. I hope that I carry the hon. Lady with me now. [Interruption.] If I have not made it clear, I am prepared to repeat it.Madam Deputy Speaker : Order. That would be tedious repetition.
Mr. Morris : I bow to your wisdom, Madam Deputy Speaker. I thought that I had made my point clear, but I am quite prepared to repeat it for the hon. Member for Lancaster.
It would be a sad day if odious causes did not have the availability of the finest advocacy to ensure that in the dispensation of justice every argument had been advanced in a particular cause. During debates in another place, the cab rank rule became more a matter of concern. Today the Attorney-General called it non-discrimination.
If enshrining that rule was expected to, and would, undermine the widening of advocacy rights in the Bill to qualified people, I would have no truck with it. It should not do that. As the Lord Chancellor said some years ago, wearing his hat as leader of the Scottish Bar, "this obligation is an important constitutional guarantee from the point of view of a citizen's freedom of access to the courts." The rule does not exist for the sake of the Bar. It must be improved upon so far as it is exercised by the profession. It is not perfect and I welcome what the Attorney-General said about that this afternoon. The rule is part of the price that the Bar, as advocates, has paid for its monopoly of audience in the superior courts. What should the rule mean? A practising advocate must be prepared, in the interests of enhancing access to justice, to take instructions from anyone, however odious his cause, in the field in which that advocate practises. Advocates cannot pick the popular as opposed to the odious causes or the easy as opposed to the difficult cases. If we extend the privilege of advocacy, with it must go the burden of the cab rank. The client will know that he will have an advocate of his choice, subject of course to availability. The judge and jury will know, because of the nature of the advocate's duty to appear, that he is not identified with his client's cause. It would be short-sighted if the consumer failed to comprehend the magnitude of his loss in the long term if the rule was not maintained. It would be a grave restriction of the client's right of choice if the rule disappeared and all advocates were able to pick and choose.
Mr. Austin Mitchell (Great Grimsby) : There is an anxiety here in that barristers, by introducing the clause about cab ranking, have tried to restrict competition from solicitors. As we are talking about the cab rank rule, is there not a case for saying that, as with black cabs, there should be a restriction on trade if there is a monopoly? If the principle is to be applied to two professions, should we not recognise that there are minicabs as well as black cabs and that there must be two systems instead of one?
Mr. Morris : My hon. Friend is wrong. If the rule disappeared or was not maintained or improved the client would lose. The rule matters not one iota to the profession. It is a burden on the profession, but a burden that it is
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prepared to carry, and has carried from time immemorial, as part of its privileges. I know that my hon. Friend the Member for Great Grimsby (Mr. Mitchell) has done much for the consumer and the client, but they would lose out if there was no one left in the profession prepared to defend them. That is the important point.The Yorkshire ripper must be defended and there must be a defender for the odious cause. The defence of an individual's liberty would be weakened if advocates were not available to defend that odious cause. We will have to examine the Attorney-General's proposals with great care to see what practical difficulties arise and then try to ensure that there is an effective solution that protects the consumer and the individual, because the principle exists for him.
I want now to refer to the extension of the rights of audience to all Crown prosecution service employees in the Crown courts. I fear that I envisaged Treasury pressure for that some years ago when I addressed a conference organised by Justice on the future of the profession. I surmise that it is the Treasury's belief that prosecutions by in-house advocates would be cheaper. The CPS employees believe that that practice will enhance their career prospects. All that is understandable, although it goes against assurances given by Lord Hailsham when the CPS was set up. However, we should examine that point.
In the immediate future, and perhaps for quite a few years, the CPS has enough work to get its house in order in relation to its existing functions. I do not blame the CPS for that. Rather, I blame its Treasury masters for under-funding and under-establishing the service. I believe that CPS employees receive inadequate salaries for their work and the responsibilities that they carry.
My hon. Friend the Member for Newcastle upon Tyne, East (Mr. Brown), who assisted me in the House at the time of the creation of the CPS, warned the Attorney-General of the price that the service would be paying in its inability to attract the required number of staff because of the salary scales. Despite the improvements, my hon. Friend has been proved right.
Frankly, the Law Officers lost their battle with the Treasury over pay and they either badly under-estimated staffing levels, or they lost that battle, too. The service has still not recovered. I suspect, therefore, that the exercise of an extension of the right of audience is not an immediate prospect. I am concerned about the long-term effects.
A distinguished Treasury prosecutor, Mr. Roy Amlot QC, wrote a most challenging letter that appeared in The Times on 23 February last year. He underlined the importance in any serious crime of the independence of the prosecutor
"owing no allegiance to the Government or Government Department, not motivated by results, advancement or the approval of his superiors."
He ended his letter stating :
"The Green Paper has ignored a principle which ought to be of fundamental importance--the guarantee of an independent element in the State machinery of justice."
We must decide where the greater gain lies. Would independence be less or more with in-house prosecutors at Crown court level? Do serious and difficult cases require the independence that exists today? What would be the effect on the junior criminal Bar? What would be the effect of polarising advocates at the high level into prosecutors and defenders even more than they are sometimes today?
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What would be the dangers if judges in future were drawn more from the ranks of prosecutors who had never defended?The immediate gains of possible Treasury savings and enhancing career prospects should be weighed carefully against probable weightier disadvantages. It is curious that the Government, who are bent on privatising anything that moves, or anything that does not move, should consider further nationalisation of prosecutions. That has happened already. I wonder whether the Government's Right-wing think tanks have been consulted. The Prime Minister has an interest in the Bar and I have just read that she has become an honorary fellow--whatever that means--of the American Trial Lawyers. Does she know what the Attorney-General is about?
I want now to consider the importance of the high street solicitor. He or she is the public's point of access to the law. It would be a grave disadvantage to the public if his or her role was made more difficult of if services were made less comprehensive. The small firm will look carefully at the development of the City mega-firm with its in-house advocates who may be coralling all the work at its expense. I share some anxiety about institutions undertaking conveyancing work. We all want to make conveyancing as cheap as possible, particularly when the most important commercial transaction in most people's lives is buying a house. Certainly, over the years that process has become very much cheaper. My hon. Friend the Member for Great Grimsby has played a notable part in that process.
Safeguards regarding the independence of advice have been written into the Bill. As I said, the purchase of a house is the most important commercial transaction of people's lives. There have been massive developments in recent years with financial institutions taking over estate agencies. It is therefore even more important that the consumer is safeguarded and that the advice that he obtains is independent. Hon. Members will examine that part of the Bill more carefully.
There are two outstanding omissions from the Bill. The Attorney-General has dealt with them in part. First, there is a failure to ensure that adequate resources are provided for our county courts. Despite the Attorney- General's words, we certainly welcome the institutionalisation of the civil justice review in part I. Great progress has already been made by judges in redistributing work from the High Court to the county court under section 40 of the County Courts Act 1984, and masters and registrars have also transferred cases down. I was glad to hear of the number of county court centres where continuous trials can be heard. Nevertheless, there are horrendous tales of a lack of resources in county courts. Before the system in the Bill works, there must be adequate resources, and staff will need to be paid at a rate that will retain them. The state has taken their dedication for granted for far too long. What is the current rate of resignations by court staff in the Lord Chancellor's Department? Are the figures double those of comparable sections of the civil service?
I was shocked to read accounts in the other place about courts running out of their allocation of postage money, about a five-month delay of a 10- minute hearing in Birmingham, about a four-month delay in Bromley before a petition could be issued, and about a six-week delay in Swindon to get an injunction to protect a woman from her
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violent former boyfriend. If they are right, such tales mean that it is a pretty awful situation. The general public are probably under the impression that all trials continue from day to day until a case is finished. As the Attorney-General said, there is an increase in the number of places where there are continuous trials, but they may be the exception rather than the rule. What proportion of cases not finished on the same day must wait weeks before they are allocated another day to continue the hearing? The increase in costs is enormous, the strain for the litigant is unacceptable, and the pressure to settle in the meantime is considerable.It is not only in county courts that penny-pinching rules the day. The other day, I was told of a court where the phone had been taken out of counsels' room because takings did not meet charges. In other courts, incoming calls are not allowed because there is no money in them for the Lord Chancellor's Department. I do not know of a court in which phonecard telephones are installed. In a profession in which communication is of the utmost importance and when the public and the profession need to be kept in touch, one marvels that the courts run as smoothly as they do. That telephone instance is just the tip of the iceberg. One hears horrendous tales of cash limits on courts and immense delays until more cash is made available merely to reply to correspondence. The Law Society has stated the problems in some detail in its memorandum to the Lord Chancellor.
There is strong evidence that the present county court system is working under great disadvantages. I welcome the increases envisaged and reported by the Attorney-General. If the Lord Chancellor's Department were properly accountable to this House for its finance and administration, as Opposition Members envisage in our motion, we would have examined matters long ago, either through a Select Committee or through other means. In the absence of a Select Committee, the Department has been able to avoid proper scrutiny. Until adequate resources are available part I of the Bill should not come fully into operation. Although the Lord Chancellor has accepted an amendment relating to an annual report on the business of the High Court and county courts, we must ensure that resources are available. It should be a statutory requirement to provide adequate resources for the courts.
I now refer to the Government's failure to provide adequate resources for the operation of the legal aid scheme and, in particular, the failure to extend legal aid to tribunals. Legal aid has been allowed to wither on the vine. It has been estimated that in 1979, 80.9 per cent. of householders were eligible for legal aid. By 1989, the figure had declined to 57 per cent. In 1979, 79.1 per cent. of individuals were eligible. Ten years later, the figure had declined to 53 per cent. Mr. Michael Murphy of the London School of Economics' department of statistical and mathematical science stated :
"The assertions by successive Lord Chancellors and their Department, either that eligibility has remained unchanged or questioning whether previous estimates demonstrating a considerable fall are accurate, are inexplicable on rational grounds."
The Lord Chancellor, to meet widespread criticism, held a press conference shortly before the Queen's Speech, announcing "a new approach", which included this Bill. As the Attorney-General mentioned, that new approach included a general review, which will take up to three years, and a package of improvements for pensioners, children and personal injury cases. No comparable
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changes have been made in green form eligibility. The Attorney-General estimates that the changes will increase eligibility from 56 per cent. to 74 per cent. in personal injury cases. But what of other matters in which assistance may be required? The president of the Law Society, Mr. David Ward, and the chairman of the general council of the Bar, Mr. Peter Cresswell QC, recently wrote a joint letter to the Lord Chancellor because of the profession's concern about declining eligibility. They share that concern with the Lord Chancellor's legal aid advisory committee. They pointed out that the basic uprating of about 5.2 per cent. will not even keep eligibility limits in line with inflation,"let alone reverse the savage cuts in legal aid made over the past few years."
They are concerned with the formula, the scope and the time scale of the review. They endorse the Lord Chancellor's advisory committee's view that
"the downward drift of eligibility levels might gather momentum over this time."
They also pointed out that better targeting--this was mentioned in the Attorney-General's speech--might result in fewer people being eligible and might mean that those who are just above the eligibility level could be prevented, on financial grounds, from pursuing their legal rights argument. It is disingenuous for the Green Papers to suggest that the no win, no fee proposals will allow greater access to the law and somehow compensate for the lack of any extension of the legal aid system.
The president and the chairman have misgivings about the review being conducted behind closed doors and suggest that there should be an independent review, reporting within six months. I entirely agree. Not only is the existing legal aid scheme being allowed to wither, but there appears to be no hope of extending it to tribunals. The Bill's long title includes the challenging words
"to make provision with respect to legal services".
Unhappily, the opportunity to spell out the path forward has not been grasped.
I wonder how many hon. Members have had to deal with case after case in their surgeries of constituents who are to appear before a tribunal in the following week with claims for mobility allowance, constant attendance allowance or unemployment benefit, for example. Although hundreds, if not thousands, of pounds are at stake, we know that many people go to those tribunals unrepresented. There must be something wrong if someone can get legal aid for a comparatively minor action in the county court, worth perhaps less than £2,000, yet a worker with 20 years' service, aged 54 and earning £200 per week, who alleges that he has been unfairly dismissed, receives no help whatsoever in presenting his case. He may not have the support of a trade union, whereas his employers may have in-house lawyers and will certainly have recourse to solicitors and barristers to represent them at the industrial tribunal, if they so wish. That employee might have a claim of up to £12,000 on the facts, but within the framework of the present legal aid system, no matter how strong his claim and no matter how large his potential award, he cannot get legal aid to assist him at the industrial tribunal. What is the logic--
Mr. Alex Carlile rose --
Mr. Morris : No, I shall not give way because I have almost finished.
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What is the logic of drawing a distinction between those two cases and how can that distinction be maintained? Mr. Ward and Mr. Cresswell have expressed their concern about the lack of progress on tribunal representation. They suggest, first, that an order of priority should be worked out for extending legal aid to certain tribunals, starting with appeals to the social security commissioners. Secondly, they suggest that consideration be given to funding a national network of agencies for tribunal representation. That could at least be a start and we all await the Lord Chancellor's reaction.In the absence of a positive reaction and in the light of the omissions that we have identified in our motion, while I do not recommend my right hon. and hon. Friends to vote against the Bill's Second Reading, I urge them to support our motion in the Lobby. 5.43 pm
Mr. Michael Jopling (Westmorland and Lonsdale) : I imagine that the debate will be dominated by lawyers. Indeed, I see around me in the Chamber predominantly hon. Members who are lawyers. The House knows that I am no lawyer, so I hope that I shall be forgiven if I make a few comments about the Bill from the point of view of the general public and their more mundane dealings with the legal professions. I begin by giving the Bill a general welcome. I am especially glad that it has come to the House with a good deal more support from the various parts of the legal profession than it looked as though it would enjoy at one stage. That is to be welcomed. I pay tribute to the Law Officers who, I know, have worked hard to try to bring to Parliament a Bill that is not as contentious as at first appeared. If my right hon. and learned Friends on the Front Bench will forgive me, I want to pay a special tribute to the Lord Chancellor, for whom I have had the greatest possible admiration during the 11 years since he joined the Government.
However, I am concerned at some of the Bill's implications for some of the more mundane legal services. I am all for competition between lawyers and anybody else who is capable of performing competently the legal services that we are accustomed to solicitors performing. However, in the welcome move to opening up this area, I am concerned that, in fairness, we should not put solicitors at a disadvantage. Over the years, I have played my part in criticising solicitors and I do not suppose that I shall stop now, but they perform a great service to the public and it would be wrong to throw out the baby with the bath water, as the Bill does in certain respects. The principal purpose of my remarks is to draw attention to some of those instances and, in so doing, I acknowledge the advice that I have received from Westmorland Law Society.
Clauses 46 and 47 deal with probate. The Bill proposes to extend, under strict controls, the groups of people who are able to carry out legal work on deceased people's estates up to the point of a grant of probate. I have no quarrel with that. Until now, such work has, in practice, been confined to solicitors and to the trustee departments of the banks because, under the existing rules as I understand them, only solicitors can apply for a grant of probate. If that work is to be extended to wider groups, as the Bill proposes, we must ensure that those groups are competent and properly regulated. I am content that that seems to be being done. However, why is there no
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