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Lord Woolf: In the code to which I referred I tried to draw a distinction between standards before the court and the restrictions to which the individual would be subject as to his client. The code to which I referred would not deal with the subject to which the noble Lord refers.
Lord Donaldson of Lymington: I welcome the suggestion of the noble and learned Lord the Master of the Rolls that there should be a common code. It is perfectly possible to incorporate into the code the key features that apply to the Bar and may not at the moment apply to solicitor advocates. But there is a very strong case for having a common code. A common disciplinary tribunal is an attractive idea but needs to be looked at a little closely for a number of reasons.
At the moment there is a right of appeal from the Bar's Disciplinary Tribunal to the Visitors who are members of the judiciary. There is a right of appeal (the technical basis for which I have now forgotten) from the Solicitors Disciplinary Tribunal to the courts either under the Solicitors Act or by way of judicial review, but it matters not which. Those are different. They would have to be radically altered by statute before one could have the kind of common tribunal suggested by the noble and learned Lord. There is no doubt that it could be done. I doubt whether it could be done under the powers in this Bill. I also doubt whether it could be done by amendment of this Bill. I do not believe that there has been sufficient time in which to consider the matter in detail.
Perhaps I may deal with one or two other matters. I probably misheard the noble and learned Lord the Lord Chancellor when I thought he said that a member of the Bar, who by definition has full rights of audience from the moment of legal birth, might have difficulty in getting a pupillage and would then be able to transfer to the solicitors' branch where he could not get a pupillage. I do not believe that he could do that. It would not solve the problem because the same rule about requiring pupillage before exercising rights of advocacy would apply to all members of the Bar. Therefore, it would not fall within this exception. However, I may have misheard the noble and learned Lord. If he said "tenancy" that would be a different matter because that would be correct.
On Tuesday of this week, in the debate on employed lawyers, the noble and learned Lord said:
- "Some Members of the Committee may be tempted by the argument that someone who is paid a salary by the state cannot be truly independent. All that is needed to refute that argument is to look at the position of the judges whose independence is not questioned. The senior professional judiciary are full-time salaried servants of the Crown".--[Official Report, 26/1/99; col. 1006.]
Some years ago when I was concerned with industrial relations I recall a very distinguished Member of this House who at that time was a Secretary of State, saying to me, "To whom are you responsible as President?" I understood him to be referring to the National Industrial Relations Court. He said, "I take it that you are responsible to the Lord Chief Justice". I said, "Certainly not". He said, "Then, to the Lord Chancellor". I said, "Certainly not. I am responsible solely to my conscience and to the law." That is a cultural independence that does not exist elsewhere and no parallels can be drawn with it.
4.30 p.m.
Lord Wigoder: We seem to have moved away from the issue of principle about employed barristers to issues of standards. Issues of standards are of the greatest importance. I was proposing to make one or two comments about that in the debate on whether the Clause shall stand part, but as the question has been raised perhaps I shall be forgiven for dealing with it now.
A code of conduct, yes; a disciplinary body, yes: those matters are comparatively easy to establish. The real problem is the practical one of ensuring that breaches of the code of conduct are discovered, brought to the attention of the disciplinary body and dealt with. I have in mind the fact that at the Bar such matters are dealt with not only by the Bar Council's disciplinary bodies or by the Inns of Court disciplinary bodies, but also in an informal and effective way. Any member of the Bar who prosecutes and then breaches what might be thought to be in a code of conduct--if there were a formal code--will find, the Bar being a comparatively small profession, that his deficiencies are immediately observed by his colleagues. The matter will be brought immediately to the attention of the head of chambers, who will take action, or it will be brought to the attention of the leader of the circuit, who will take action. It is also not unknown for a wise judge to send for a young man after a case and politely and firmly explain the position.
Therefore, in due course, breaches of a code of conduct can come to the attention, if necessary, of a disciplinary body. I hope that the noble and learned Lord will be able to indicate, in some little detail, not only the nature of the code and the nature of the disciplinary body, but also the machinery for its operation.
I understand that pilot schemes are under consideration. Would the noble and learned Lord say a word about the extent of the proposal in relation to pilot schemes and how they will operate? I venture to assume that when the noble and learned Lord examines the results of the pilot schemes he will want to look not only at the forensic ability of those who have been granted new rights of audience, but also, to use a rather pompous expression, the ethical ability of those granted new rights of audience. I suspect that if and when he does
that, he will find that he has to hasten rather slowly and not extend rights of audience too rapidly and too extensively.I am sure that the noble and learned Lord will agree that it is absolutely imperative that, before doing that, he should be totally satisfied that the ethical rules of conduct of the legal profession, particularly when carrying out prosecutions, are observed by newcomers to the profession.
Lord Campbell of Alloway: The noble and learned Lord the Lord Chancellor will remember that I mentioned the problem of the machinery of quality control in reference to a previous amendment. The noble and learned Lord said that either he would give consideration to that or he would deal with it subsequently in Committee. The noble Lord, Lord Wigoder, referred to the same point. Perhaps it would be convenient for the noble and learned Lord to deal with it in outline at this stage.
While I am on my feet, I most respectfully say that I wholly support everything said by the noble and learned Lord the Master of the Rolls.
The Lord Chancellor: I shall endeavour to pick up a few threads of the arguments raised in debate. Then I shall deal with the important proposal brought to your Lordships' attention for the first time today by the Master of the Rolls, the noble and learned Lord, Lord Woolf.
The noble Lord, Lord Clinton-Davis, asked a question about the ambit of the rules of the professional bodies. I suspect that it was a question that came into his head as he was listening to the discussion and he thought that it would be good to know the answer. I shall certainly not give the noble Lord an assurance about the ambit of professional rules without having them in front of me or indeed without consulting on how they are applied in practice. I would have thought that they might be applied in practice so that an advocate employed by a company may appear for his employer, the company, and other subsidiaries within the group. However, I think that calls for investigation by reference to the rules.
The noble Lord, Lord Hutchinson of Lullington, sought to tax the noble and learned Lord the Master of the Rolls with a question on whether the "cab rank" rule would not apply to the Crown Prosecution Service. The "cab rank" rule is one of the glories of the Bar. It underscores that every member of the Bar is obliged, without fear or favour, to represent clients who offer themselves, regardless of how unpopular they may be in the community or elsewhere. However, Crown prosecutors are employed by the Crown Prosecution Service, and therefore appear on behalf of their employer only; so the "cab rank" rule has no application.
I entirely take the point of the noble and learned Lord, Lord Donaldson of Lymington. High Court judges are office holders and can be removed only by address of both Houses of Parliament. That underpins their independence. The much larger number of Crown Court
judges can, by statute, be removed by the Lord Chancellor for misconduct. However, I take the noble and learned Lord's point.I now turn to the matter brought to the Committee's attention by the noble and learned Lord, Lord Woolf. Before responding, I express my gratitude to him for ensuring that notice was given to me earlier today of his intention to raise such questions. However, I do not regard myself as being in a position to make a fully considered response. Therefore, I shall not offer the detail that I imagine the noble Lord, Lord Wigoder, would prefer as my reaction to the proposal. For some reasons that I shall give, with respect, I suggest to the noble and learned Lord that the waters are slightly deeper than the apparent straightforwardness that his question suggests. In that regard, I identify with the cautionary note struck by the noble and learned Lord, Lord Donaldson of Lymington.
The Lord Chief Justice, the noble and learned Lord, Lord Bingham of Cornhill, suggested in our debate on Second Reading,
- "that rights of audience should be exercised only by those who possess the required knowledge, skill and integrity, and"--
- "who are subject to a common code of conduct and discipline".--[Official Report, 14/12/98; col. 1126.]
Solicitors, for example, have a special code for advocacy as part of their rules. The requirement of Section 17(3) of the Courts and Legal Services Act 1990, which will not be changed by the Bill as it presently stands, is that an advocate must belong to an authorised body which has rules of conduct which are appropriate in the interests of the proper and efficient administration of justice. But the authorised body must have an effective mechanism for enforcing those rules--a matter to which the noble Lord, Lord Wigoder, referred--and that it must be likely to enforce them. All three bodies which are authorised to grant rights of audience to their members meet those criteria today.
All advocates are also subject to a requirement imposed by Section 17(3) of the Courts and Legal Services Act that they may not withhold their services on the grounds that the case is objectionable (that harks back to the cab rank rule); that the conduct, opinions or belief of the client are unacceptable (which similarly harks back to the cab rank rule); or on any ground relating to the source of any proper financial support received by the client.
Any new authorised body will be subject to the same provisions. No new body could be authorised if it did not have satisfactory rules of conduct and disciplinary mechanisms. One of the purposes of the legal services consultative panel, the Director-General of Fair Trading, and the designated judges under the new approval
procedure to be created by the Bill, will be to give advice on whether satisfactory rules and procedures are in place.Therefore, as matters stand at present, if the authorised bodies wish to pool their experience and expertise and draw up a common code, that would be for them. While I would judge any code on its merits, my instinctive reaction is that there is much to be said for such a common code; and my instinct would be to give it my blessing, basically for the reasons advanced by the noble and learned Lord, Lord Woolf. However, there are potential problems. For example, barristers in private practice do not give members of the public direct access to their services; and, as the noble Lord, Lord Hutchinson of Lullington, emphasised, they operate the cab rank rule. Other advocates need not practise in that way.
I understand, although I have not looked into the matter in any detail, that the Bar Council and the Law Society at one time considered establishing a joint code of conduct for advocates. But the problems on which I have touched were thought of at that time to be insuperable. If I overstate that, I shall be corrected, but that is as I recall the position. There may be some who would suggest that in establishing a common disciplinary code there may be an implication to enforce a common code of conduct; that it was a step on the road towards the fusion of the legal profession. Obviously that does not begin to be necessarily so, but when some think that we move into deep waters.
At present the Bill does not give me any express powers, as I see it, to impose a common code or common disciplinary procedures on the professional bodies. My only powers will be to approve changes which the professions make in their rules; and, with--and only with--the approval of both Houses of Parliament, to alter any rules which unduly restrict rights of audience or rights to conduct litigation. I would not oppose proposals from the professional bodies to adopt a common code and disciplinary procedure if they wish but I should have thought that the initiative lay more with them than with me. However, I accept that the tenor of what came from the noble and learned Lord, Lord Woolf, was rather different. I believe that he went rather further, inviting me to consider acquiring powers to impose the outcome that he recommends in default of agreement among the professions. Again, I think that these are deep waters, but I should be happy to enter into discussions with him on the subject between now and Report.
4.45 p.m.
Lord Woolf: I thank the noble and learned Lord the Lord Chancellor for that helpful response to the points I made. Like the noble and learned Lord, I recognise that these are deep waters. I fear that the proposals for extension of rights of audience also involve putting a substantial part of one's body into deep waters. I suggest that it is another area where serious consideration has to
be given to what could be an important consequence of extension of the rights of audience to the extent envisaged by the noble and learned Lord.
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