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Lord Archer of Sandwell: I am grateful to all noble Lords who participated in the debate. It is a debate, if I may say so, which will well repay reading in detail tomorrow. I was only trying to be helpful. I thought that I was suggesting a simple answer to a simple drafting problem. One cannot be right all the time! I plead only in mitigation that I set down the amendment at the instigation of the Bar Council, which obviously shared that rather simplistic view at one stage.
Clearly there are genuine problems. We seem to be wholly in agreement that employed lawyers should be capable of being accorded rights of audience. Two questions then arise. First, how should they be subjected to the standards which are applied to other applicants? It seems to be agreed that it should be left substantially to the rules of conduct of professional bodies. If I may say so respectfully, I wish the proposal of the noble and learned Lord the Master of the Rolls well. However, like my noble and learned friend the Lord Chancellor I remember when the professions were less attracted to such suggestions. It may be that we have travelled far even in the past five years and have learned something along the way. I hope that the learned and noble Lord has begun something which may gather momentum.
The second question which arises is whether, subject to those standards, it is agreed that an employed lawyer may appear to represent anyone, however unconnected with his employer, in proceedings however unconnected with his employer's business. Clearly there may be some inroads on the general principle as was indicated by my noble friend Lord Borrie. But I suspect that we shall need to reflect on that in somewhat greater tranquillity than is possible at present.
These questions are intellectually stimulating. They are also of great importance to the public. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor moved Amendment No. 237A:
On Question, amendment agreed to.
[Amendments Nos. 238 and 239 not moved.]
The Lord Chancellor moved Amendment No. 239A:
On Question, amendment agreed to.
Lord Kingsland moved Amendment No. 240:
The noble Lord said: The purpose behind the amendment is to ensure that the more important criminal cases are prosecuted by independent advocates. The noble and learned Lord will recall that late in the third day of Committee a considerable amount of time was devoted to arguments against the granting of rights to CPS advocates in the Crown Court. I shall not rehearse those arguments again today.
The main reason for questioning the merits of the move were well explained in the speech of the noble Lord, Lord Thomas of Gresford. He emphasised, in particular, the danger of a conflict of interests between the duties of a member of the Crown Prosecution Service to his employer and his duties to the court. I entirely share the noble Lord's concerns and wish to raise only two other issues. They go to the original motives expressed by the noble and learned Lord last year when he first suggested the changes which are now contained in the Bill. Those motives were saving money and enhancing competition.
I wish to ask the noble and learned Lord, first, how he believes money will be saved by a shift from using independent advocates to prosecute to using advocates in the Crown Prosecution Service. It is well known that in many respects the cost burden of employing someone on a salary, with all the related overhead expenses, can be much higher than using someone who is self-employed.
The second issue relates to competition. During the past 20 years, it has been accepted in the United Kingdom and in many other countries that the best way to enhance competition is by a process of privatisation. But here we must assume that implied into the change is the claim that the best way to promote competition is by increasing nationalisation; because the greater the number of cases advocated in the Crown Courts by employees of the CPS the greater will be the degree of nationalisation. How will the noble and learned Lord ensure there is competition between the CPS advocate on the one hand and the independent practitioner on the other?
There is a great deal of case law in the courts of the European Community about competition between private and state entities. We all know to what extent states can subtlety undermine competition in the market by giving state aid of one form or another. Therefore, apart from the important point of principle, which was well expressed by the noble Lord, Lord Thomas of Gresford, I should like to hear the noble and learned
Lord Thomas of Gresford: I do not propose to rehearse again the argument which I entered into in the early hours of Wednesday to a hard core of dedicated people. I shall reserve that for a later stage of the Bill. However, perhaps I may ask two questions arising from the amendment.
I referred on Wednesday morning to the current pilot schemes whereby members of the Crown Prosecution Service are prosecuting in the Crown Court. I know of it in the Mold Crown Court in my own area and wonder whether the powers given to them have gone any further than those suggested in paragraph (a) of the amendment and whether they have been under the control of the presiding judge of a circuit as suggested in paragraph (b). I repeat my request for information as to whether there has been any assessment of the success of the experiments which are being carried out with the CPS.
The Lord Chancellor: First, noble Lords should bear in mind that I am not responsible for the Crown Prosecution Service. The Attorney-General is the Minister responsible. Secondly, the noble Lord, Lord Kingsland, will look in vain in Hansard for any proposition from me that the justification for extending rights of audience to CPS prosecutors was the saving of money. I have never ever said that.
First, my budget is entirely distinct from the budget of the Crown Prosecution Service and I concede that my budget will be completely unaffected by the removal of a restrictive practice affecting employees of the CPS in order to extend their rights of audience. Throughout, I have addressed the principle of the matter and the objectionable nature of the restrictive practices in principle.
I would now like to address the actual subject matter of the noble Lord's amendment. It is intended to limit the cases in which employed advocates can prosecute in the Crown Court. In practice, it would apply principally to Crown prosecutors. The amendment would limit them to the least serious category of cases which are tried in the Crown Court; Class 4 cases. These are defined in the practice direction on the classification of the business of the Crown Court as cases involving offences of wounding or causing grievous bodily harm with intent; robbery or assault with intent to rob; incitement or conspiracy to commit these offences; conspiracy at common law; conspiracy to commit any offence other than a Class 1 or a Class 2 offence; and all offences which are triable either way.
For the benefit of the Committee, perhaps I should explain that Class 1 offences are the most serious; for example, treason and murder. Class 2 offences include manslaughter and rape. Class 3 offences cover those triable only on indictment which are not in Classes 1, 2 or 4. Perjury would be an example. Class 4 offences can be tried by a High Court judge, a circuit judge, a recorder or assistant recorder, but they would normally be tried by a High Court judge and cannot be listed for trial by a High Court judge without his permission or
The amendment would also ensure that if a Class 4 case were listed before a High Court judge, a Crown prosecutor could not appear before him. I cannot see any case for this amendment, even from the point of the noble Lord, Lord Kingsland. It seems to be that either Crown prosecutors and other employed lawyers are qualified to appear in the higher courts or they are not. I know that some of your Lordships oppose all rights of audience for employed lawyers in the higher courts. That seems to me to be a position which, although I do not accept it, is intellectually coherent. The proposition that Crown prosecutors should be able to appear in some Crown Court cases but not in others does not appear to me to be principled. It rather appears to me to be clearly designed to create a no-go category of a significant legal category of work in the Crown Court for everyone but the Bar. I cannot regard that as defensible.
The Government's firm view is that Crown prosecution and other employed lawyers are eminently qualified to appear in the higher courts. After all, they are qualified barristers or solicitors who have met the normal requirements for exercising rights of audience in the higher courts and are members of professional bodies with effective codes of conduct and disciplinary mechanisms. I do not accept that Crown prosecutors are second-rate lawyers who should be statutorily confined to the lesser classes of criminal work.
No doubt some Crown prosecutors will prove to have a greater aptitude for higher court advocacy than others. But that is no different from barristers in private practice. Crown prosecutors are subject to the same standards as their equivalents in private practice. Furthermore, by opening up their rights of audience in the higher courts, this Bill will make a career in public service more attractive to very able advocates. I do not accept that there is any sensible reason for preventing such advocates from appearing before a High Court judge in a criminal case.
If the real motive behind the amendment is to reserve an area of work for the Bar, then I must say that it is unnecessary as well as being wrong in principle. In practice, in my view, there is no possibility of the CPS taking over the majority of the prosecution work in the Crown Court as it does not have the manpower to do that. But it is not appropriate to reserve by statute certain areas of work to the privately practising Bar.
There is another flaw in the amendment but it is technical. It is contingent upon the existence of a particular practice direction which was made by the late Lord Taylor with the concurrence of my noble and learned predecessor in 1995. That practice direction provides for the existence of Class 4 cases and defines what they are. But my noble and learned friend Lord Bingham of Cornhill, the Lord Chief Justice, could revoke or change the practice direction at any time, and with my concurrence. The amendment would
I prefer to write definitively to the noble Lord, Lord Thomas of Gresford, on the subject of pilot schemes. I shall give him my present understanding of the present situation but I do not wish to be tied to it. I believe that the pilot schemes to which he refers allow solicitor advocates in the Crown Prosecution Service to exercise their current limited rights of audience in preliminary proceedings in the Crown Court. Because of the current state of the rules, to which, as the noble Lord knows, the Government fundamentally object, they are not even allowed to appear in a substantive hearing on their own. Therefore, pilot schemes cannot extend further than I have just described. However, I prefer to write more comprehensively to the noble Lord on that subject.
Lord Hacking: I agree with my noble and learned friend. Perhaps I may add one short rider of my own. There can be no better example of the saving of time and duplication of legal effort than when a plea is to be tendered by an accused before the Crown Court or the High Court. That seems to be an occasion on which it would be sensible for a member of the Crown Prosecution Service to appear directly before the court. The effect of this amendment would prevent that.
Page 19, line 11, leave out ("circumstances") and insert ("capacity").
Page 19, line 19, leave out from ("or") to end of line 26 and insert--
("(b) he is otherwise employed in a capacity which involves his appearing before courts."").
Page 19, line 26, at end insert--
("(5) A person employed as an advocate in accordance with subsection (3) shall only be permitted to prosecute a case being tried on indictment which--
(a) falls within class 4 of the classification of the Business of the Crown Court and Allocation to Crown Court Centres Directions; and
(b) has been released by the Presiding Judge of a Circuit, in accordance with those Directions, for trial by a Circuit Judge, Recorder or Assistant Recorder."").
5 p.m.
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