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Lord Woolf: I am grateful for that clear and helpful description of the general position of the Government on the series of clauses to the Bill and the proposed amendments. I, like many noble Lords present, found what the noble and learned Lord said very reassuring.
However, let me draw attention to a matter which is of concern not only to myself but to many of my judicial colleagues. At Second Reading, I made it clear that I did not in general oppose the extensions of rights of
audience. In common with the Lord Chief Justice, I drew attention to the deeply felt concerns to which I have already referred. Those concerns were as to the possible adverse consequences on the administration of justice which could result from the extension. Central to those concerns was a fear that the standards of advocacy and representation in courts and tribunals would deteriorate. To avoid this happening, I suggest that it is essential that there should be in place, for all who have rights of audience, a common code of conduct as to how those rights are exercised, and a common disciplinary body to enforce that code.In saying that, I should emphasise that I am not suggesting that the common code should interfere with the rights of each professional body to regulate its members in general terms. I am concerned about the quality of the services provided in the courts and tribunals to which I have referred as a result of those rights of audience.
The Bar has already in place the type of code and disciplinary body which I would like to see commonly applied to the Bar, solicitors and legal executives. I believe that, with encouragement, there should be no difficulty in reaching agreement on a common code dealing with advocacy practice, and a common disciplinary body to enforce it.
As noble Lords will know, as Master of the Rolls I have a special relationship with the solicitor side of the profession. I am also a vice-president of the Institute of Legal Executives. I shall certainly urge those two bodies to co-operate in what I have suggested should exist. I have no reason to think that the Bar would have any problem with what is being proposed.
However, if an agreement cannot be reached, I suggest that this would be an example of a situation where the Lord Chancellor, subject to suitable consultation and safeguards, should be able to use the powers that this Bill gives him to take appropriate action. This would not involve any infringement of the independence of the three professional bodies to which I have referred. It would avoid a wholly undesirable lack of consistency in standards in relation to the rights of audience, which I apprehend will concern noble Lords. Whether it is an employed or independent barrister, solicitor or legal executive who is acting as advocate, the same standards of conduct must be observed.
The views I have just put forward were expressed forcefully by the Council of the Inns of Court in its paper in response to the consultation paper on rights of advocacy. They are supported by the Lord Chief Justice and by the Judges Council, which considered the issue last night.
Will the noble and learned Lord, the Lord Chancellor confirm, first, that he agrees that all those who practise as advocates before courts or tribunals should be subject to a common code of conduct relating to the role of the advocate while they are acting in that capacity, and that there should be a single disciplinary body, and, secondly, that if the authorised bodies fail to reach agreement, the Lord Chancellor will have under the Bill sufficient powers to ensure that a common code and a disciplinary tribunal are established?
I see no objection to extending rights of audience as long as consistent standards--as high as at present--are observed. The maintenance of those standards depends on a suitable disciplinary procedure being in existence in which the judiciary must have the final word. I can see every objection to a series of different bodies having rights of audience, each with its own standards and own means of enforcement. If we are not to have those safeguards, the case that could be made by those noble Lords who are not in favour of the proposals in this part of the Bill would be that much stronger. The ability to enforce standards is the foundation on which the case for extending rights depends. If those rights are to be enforced, they must be enforced consistently. I would suggest that that can only be done by having a common disciplinary tribunal.
4.15 p.m.
Lord Ackner: Before the noble and learned Lord sits down, can he tell us what "standards" comprise? Do they comprise competence?
Lord Woolf: The standards to which I specifically refer are standards in the face of the court or tribunal. Those will be dependent upon competence but, as I see it, the question of competence is one which can be safely left in the hands of the individual professions. Different considerations apply to standards in the conduct of the litigation before the court or tribunal.
Lord Clinton-Davis: I support what the noble and learned Lord the Master of the Rolls has said in a very interesting development in the debate. I sincerely hope, as a practising solicitor--but no longer a solicitor advocate, except maybe here--that the Law Society and Institute of Legal Executives will have no difficulty in accepting the principle of the argument. It would be interesting to see whether my noble and learned friend had to bang heads together on this. I would hope not, but as a last recourse that may be necessary.
Can I ask my noble and learned friend whether the current regulations deal with this situation? If an advocate is employed by company A, could he act for a subsidiary of that company and vice versa? I do not know the answer--it may be irrelevant--but it occurs to me that a difficulty might arise in that respect.
Lord Hacking: The noble and learned Lord the Lord Chancellor need not have apologised at all to the Committee for giving such clear guidance on how he sees the rights of audience progressing forward in relation to employed advocates. I am very grateful to the noble and learned Lord for that careful and forward thinking statement. It is to be welcomed that rights of audience should be extended to employed advocates, not only to those who appear in the Crown Courts but to other very well qualified lawyers in administrative bodies such as the financial services. There are some very highly qualified lawyers in the Financial Services Authority.
I also welcome the noble Lord's approach to barristers who find themselves in solicitors' employment, which is my side of the profession.
Competition for the Bar is very stiff and many a bright and able young lawyer is unable to find a tenancy. We on our side of the profession are more than willing to welcome to our ranks bright and able young lawyers who have been unable to find a tenancy. For them, having become highly qualified and gone through pupillage, possibly extended pupillage, before eventually failing to find a tenancy, clearly it is wrong that they should lose their rights of audience on coming to our side of the profession. I therefore very much welcome the observations of the noble and learned Lord.I have some concern, however, about the third matter which the noble and learned Lord explained at length: the position of employed lawyers outside such bodies as the Crown Prosecution Service, regulatory authorities and so forth; in other words, those in consultancy agencies, accountancy firms and the like. While the noble and learned Lord does not close the door in future, the difficulty lies in seeing how those lawyers can obtain rights of audience. They will certainly not get them under the umbrella of established authorised bodies. One has only to look at the history of the long debates on employed advocates and debates in the Bar Council to know of the intense opposition that is likely to arise over those lawyers being given rights of audience. I am aware of the management consultancy cited by my noble and learned friend Lord Borrie. I have seen its lawyers appearing in arbitrations where they have full rights of audience. The competence and professional ability of the lawyers in that organisation is of the highest order. The difficulty is that the authorised bodies will oppose such lawyers being given rights of audience, and their only route will be to establish themselves as an authorised body and go through that very extensive procedure before they are given rights of audience.
There is no valid argument in principle why a lawyer employed by a management consultancy should be any less able and fitted to the role of the advocate than other employed lawyers and those employed in private practice. As to that, I wholly endorse the words of the noble and learned Lord the Master of the Rolls about the need for a common code of conduct relating to the exercise of rights of audience and a common disciplinary body. That can also be incorporated into the point that I make. I ask the noble and learned Lord to give further thought to this issue. Provided every lawyer who has a right of audience is subject to a proper code of conduct and a common disciplinary body the public is properly protected and there is no injustice to the public. If there is no injustice to the public and the lawyer is in those circumstances prevented from practising his skills as an advocate it is a restrictive practice which everywhere else in the Bill my noble and learned friend is opposing.
Lord Hutchinson of Lullington: Perhaps I may put a very simple question to the noble and learned Lord the Master of the Rolls on the proposition that there should be a common code. For the independent criminal barrister the basic rule is that he is available under what is called the cab-rank rule to any person who requires his services, however unpleasant or unattractive the case
may be, which means that the advocate must accept that brief before any other. How can that provision apply to the employed prosecuting advocate under a code?
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