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Baroness Thornton: I have just witnessed the Committee taking its gloves off. I have witnessed what one might perhaps call a bit of noble mud wrestling. I believe that the noble Lord, Lord Hutchinson, and I inhabit different planets. It is simply not accurate to say that the legal profession is held in such high esteem. I wish that that were the case. It is true that members of the legal profession are held in higher esteem than politicians and journalists, but that probably is not saying much! The reasons for that are several. One reason is that not many ordinary people have access to the law. A second reason is that people believe that
vested interests and restrictive practices are involved which do not make the law accessible to ordinary people.I have listened to the debates on rights of audience that have taken place today and which took place late into the night on Tuesday. I confess that I am not convinced by the arguments that I have heard against change. I do not expect that my noble and learned friend Lord Falconer will have any problem in addressing the points that have been made. However, there are times in political life when people plainly do not agree with each other, and do not agree about the way forward. I believe this is one such occasion. When this happens, we need to consider democratic legitimacy. The Government have democratic legitimacy on their side on this occasion.
An irresistible thought keeps popping into my mind, and has done throughout this debate when Members of the Committee talk about maintaining standards and the protection of independence, both of which are issues of enormous importance and are the essence of the Bill. It occurs to me that one hears such remarks from some quarter whenever there is a proposal to make a procedure more democratic or to make it accountable or to ensure competition or, as in the case we are discussing, to remove restrictions and outmoded rules which no longer have a place in modern society.
In this case, we are largely talking about unfinished business. While I hated and deprecated many of the activities of the previous government and campaigned and worked against them, I also recognised that from time to time, particularly under the leadership of the then Prime Minister, the noble Baroness, Lady Thatcher, they did go in for "busting" restrictive practices of various sorts. Despite the gallant efforts of the then noble and learned Lord the Lord Chancellor, they failed to bust this particular restrictive practice in any significant manner. The Government now seek reforms that are long overdue.
It does not reflect well on the legal establishment, which sees itself, with justification, as a world-class industry. It is a question of confidence. I hope that the legal establishment will have the confidence to modernise and to shed the remnants of practices that date back many years and were designed to meet the problems of an earlier time. I urge my noble and learned friend the Lord Chancellor to resist this amendment.
6 p.m.
Lord Wigoder: For many years I used to begin a speech with the words, "Members of the jury, it is my task to follow the powerful observations of my learned friend Mr. Hutchinson". Perhaps I may begin these few observations in that same way.
When I was first at the Bar, I went to a set of chambers where one of the senior members was a very junior Treasury counsel at the Old Bailey. He rapidly rose, and eventually became the senior Treasury counsel and acquired great reputation. He taught all those in his Chambers the rudiments of good prosecuting: the role of the prosecutor as a minister of justice pursuing the fair administration of justice.
I went out into the wide world and, for many years, conducted a largely prosecution practice. I came across prosecuting solicitors who, in total defiance of the evidence, asked me to press for a conviction. I came across prosecuting solicitors who were appalled when I said that of course we must hand over to the defence information that the police had acquired that would be of assistance to the defence and would not be used by the prosecution. I came across prosecuting solicitors who regarded every conviction as a win and every acquittal as a defeat. I discovered that some offices had league tables on the walls containing the names of prosecuting solicitors and the barristers they had instructed, and whether they had scored convictions or had failed in certain cases. In recent times I have come across cases where prosecuting solicitors have told me that, on applying for a change of job to another prosecuting solicitor organisation, they have been asked many questions about their conviction ratio as though it were a qualification for promotion or a successful transfer.
I make those observations subject to two qualifications. First, I am speaking of a time many years ago--I shall not answer any questions as to exactly how many years ago. Secondly, I do not want to exaggerate the position. Of course one came across many prosecuting solicitors who behaved in a totally exemplary way, and who could be trusted beyond any question to exercise the rights of audience that are being given to them under this clause of the Bill in a way that would have been wholly admirable. On the other hand, I must concede that there were some members of the Bar who, when prosecuting, did not uphold the kind of standards that they should have done. Whether that was through ignorance or through a subconscious desire to please a person who would obviously be the source of much future work, I do not know. But at least those kinds of cases were dealt with by the type of machinery that I indicated in an earlier intervention.
Without seeking to exaggerate--and I do not for one moment categorise all prosecuting solicitors as incompetent or unfair--I was left in no doubt that if, as a whole, those prosecuting solicitors had been given rights of audience in our senior courts, the result would have been a lowering of the general standards of the prosecution advocate. I accept that that is not the end of the matter. There could be training facilities for such people and standards could be enforced. I shall return to that point shortly. That was the position as I found it, and as I believe it largely still is. I must stress that I want to be totally fair. The Crown Prosecution Service is now led by a man of the highest possible standards as Director of Public Prosecutions. I have no doubt that he will do his best to co-operate if the circumstances set out in the Bill become law.
It is my wish to be realistic. I accept that there is such a thing as parliamentary arithmetic. I accept that the noble and learned Lord the Lord Chancellor has for some time--as has been made clear in a number of his observations--been deeply committed to the principles that are set out in Clause 31. Throughout this Committee
stage, the noble and learned Lord has made a series of major, generous concessions unequalled by any Government Minister in conducting a Bill in this House.
Lord Wigoder: My Lords, having said that, I must add that I do not think any advocacy of mine will persuade the noble and learned Lord to make a similar major concession when he rises to reply to the noble and learned Lord, Lord Ackner. Therefore, perhaps I may look for a moment to the future and to what will happen if this clause stands part of the Bill. The crucial matter is one of standards of advocacy among prosecuting solicitors who are being given rights of audience.
I come now to the second half of the observations that I was seduced into making earlier by the words of the noble and learned Lord, Lord Woolf. I shall certainly not repeat them at this juncture. In all probability the question of maintaining high standards among those who are newly granted rights of audience is crucial if we are to move forward in the way in which the noble and learned Lord is anxious that we should.
I asked the noble and learned Lord a number of questions earlier about not only the code and the disciplinary body but the actual machinery on the ground that will detect breaches of the code and see that they are remedied. The noble and learned Lord said that he would rather not deal with that matter this afternoon, and I fully understand his reasons. I should be grateful for an indication from him that at some stage during the Bill's passage, possibly when we consider Clause 36 if that is thought appropriate, he may be able to give us a clear indication as to how he sees the future in this respect and how the safeguards are to be maintained in order that prosecutions can retain, if possible, the standard that they have always had in this country.
Lord Goodhart: The question of the rights of audience of CPS employees is an extremely difficult issue on which different views have been held strongly by individuals among my noble friends. The Committee has heard some of them expressed today--however, all on one side.
I must explain that the view taken by my party in this House is that those who have participated in the debate in this Committee will report back to our colleagues before the Report stage and the party will then decide how to recommend its members to vote. It follows that no decision has yet been taken on how we should vote on the issue and so I do not intend to express views of my own which would at this time be purely personal.
I hope that the noble and learned Lord and my noble friend Lord Hutchinson will not divide the Committee today on Clause 31 because it is preferable to defer the vote to the Report stage. If we vote today, then we have recommended our members to abstain, recognising that some may feel it impossible to do so.
6.15 p.m.
The Lord Chancellor: I well recognise that the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Hutchinson of Lullington, have deeply held convictions on the subject, as do others. However, it is also the fact that the arguments that we have heard now for almost one hour on the Question that Clause 31 do not stand part of the Bill have been fully canvassed in our debates on previous specific amendments.
I also have to say, as gently as I can, that the noble and learned Lord, Lord Ackner, took 20 minutes to develop his arguments in Committee. That hand was fully dealt. The noble Lord, Lord Hutchinson, dealt his even more fully at 22 minutes. I propose to be brief, in recognition that we have a long night ahead of us and there are many other amendments dealing with different but also important issues. I do not propose to enter upon battles of long ago, however much that might contribute on the part of the noble and learned Lord, Lord Mackay of Clashfern, to a sense of deja vu. I rather suspect that he would prefer to be spared that experience. Therefore, I shall not embark on those battles of long ago.
Clause 31 inserts a new Section 31A into the Courts and Legal Services Act 1990. It would have the effect of invalidating any contract rules or qualification rules of professional bodies which restrict employed lawyers from undertaking advocacy work where their counterparts in private practice are not similarly restricted. As barristers, employed barristers have theoretical rights of audience in all courts, but in practice they may not exercise many of those rights because they are prevented from doing so by the Bar's code of conduct which prevents employed barristers from appearing in the higher courts.
Similarly, the current rules of the Law Society in the terms approved in 1997 by my noble and learned predecessor and by the designated judges prevent an employed solicitor from appearing as the sole or senior advocate in substantive proceedings in the higher courts. They can appear only if led. That means that solicitor Crown prosecutors who have obtained the Law Society's higher courts criminal qualification are nevertheless unable to appear on their own in substantive trials in the Crown Court. In my view, that is to endorse a restrictive practice.
The noble and learned Lord, Lord Ackner, submitted to the Committee that the 1990 Act was not intended to allow employed lawyers to exercise rights of audience and not intended to allow CPS lawyers to prosecute. I imagine that it must have slipped his memory that in our proceedings on the 1990 Act the noble Lord, Lord Hutchinson of Lullington, moved an amendment to prevent Crown prosecutors exercising rights of audience in the higher courts. That amendment was defeated.
In truth, the 1990 Act was an enabling Act. It created a procedure for extending rights of audience. But that procedure has failed sufficiently to extend these rights to employed lawyers. That is one of the important reasons the Bill has been brought forward.
The Government do not believe that this discrimination against employed advocates is justified. The provision is designed to give full and exercisable rights of audience to employed advocates, including Crown prosecutors and other lawyers in the Crown service.
I have to say, with the greatest respect to the noble Lord, Lord Hutchinson, which he knows is sincerely felt, I regard the proposition as exorbitant that only the Bar can bring integrity to the prosecution process. I believe that that proposition would be rejected by the overwhelming majority of people in this country. I also have to say that it is insulting to employed lawyers as a class.
I ally myself with the noble and learned Lord, Lord Bingham of Cornhill, the Lord Chief Justice of England and Wales, who said this on Second Reading (at cols. 1125 to 1126 of Hansard for 14th January):
- "Six years' experience as one of the designated judges--I have perhaps longer experience in this matter than anyone except the noble and learned Lord, Lord Mackay, and I am not far behind him--persuades me that the existing regime is unsatisfactory. I see no satisfactory alternative other than that proposed. While others disagree--and, I must make it plain, disagree very strongly, even passionately--I do not agree that Crown prosecutors, members of a service led by a very distinguished advocate answerable to an Attorney-General who has made clear his belief in the independence of the prosecuting function, would be likely to exhibit in the higher courts vices of which no complaint is made in the lower".
I emphasise that this clause does not mean that the authorised bodies should not be able to regulate those of their members who are employed lawyers. Of course they will continue to be subject to qualification regulations and rules of conduct, in the same way as their colleagues in private practice. But what is unacceptable is the current situation in which rules prevent qualified advocates from exercising rights of audience simply because they are employed.
I commend Clause 31 and believe that it should stand part of the Bill.
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