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Lord Woolf: I am afraid it seems to be a failing not only of the Master of the Rolls who is still in office but also of those who have in the past been distinguished holders of the office that they do not jump to their feet as quickly as they should. In my case, I did not do so because having heard the wise words of my noble and learned friend Lord Lloyd of Berwick, I thought that there could be only one outcome, having regard to the history of this Committee when dealing with earlier provisions. I urge the noble and learned Lord the Lord Chancellor to reconsider his position in relation to the proposed amendment.
I recognise its limitations as pointed out by my noble and learned friend Lord Donaldson of Lymington as to what it would achieve. However, I suggest that it would be an important signpost. Today, when construing legislation, such signposts can be extremely effective, particularly in relation to applications for judicial review.
As in the case of my noble and learned friend Lord Donaldson, I too accept, and hope, that there will probably never be a time when reliance will have to be placed on that clause. However, fundamental changes of a significant nature are involved. I do not regard the present situation, having experienced it for a limited time, as satisfactory. There must be change. But I suggest, as did the noble and learned Lord the Lord Chief Justice, that a signpost as proposed by this amendment would be of value.
Lord Lloyd of Berwick: I thank the noble and learned Lord the Lord Chancellor for his response although I confess that I had hoped that he might, even at this stage, have been able to accept the broad principle which lies behind the amendment. It simply adds to, and does not provide a substitute for, the objectives already set out in Section 17 of the 1990 Act.
At present, the noble and learned Lord regards those objectives as comprehensive. I am not sure that I agree with him about that. Perhaps, between now and Report stage, he may reconsider that point. In any event, I look forward to receiving his fresh proposals. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 p.m.
Lord Kingsland moved Amendment No. 245:
The noble Lord said: This group of amendments seeks to replace the proposed powers of the Lord Chancellor to approve professional bodies for the grant of rights of audience and the amendments to professional bodies' rules with a requirement that the approval be granted
This set of amendments deals only with amendments to Part I, II, and IV of the schedule. That is because a later amendment seeks to have Part III of the schedule removed altogether from the Bill. If the subsequent amendment is unsuccessful, then it would be appropriate for similar amendments to be made to Part III.
The codes of both professional bodies stress that both barristers and solicitors owe their primary duty to the court and impose duties of honesty and openness on the court. The Bar's code is a synthesis of judicial decisions and rulings of the profession on appropriate conduct. The code for solicitors mirrors it.
It must be appropriate for the most senior judges to have more than a mere advisory role in relation to the future form of those codes. When the proposals which led to the existing Schedule 4 to the Courts and Legal Services Act were being debated by this House, as I know the Committee is aware, great concern was expressed about the implications of a Cabinet Minister having the final decision on the rules of an independent profession.
The resulting compromise was probably over-complex and, indeed, resulted in long delays in approving rule changes. I suppose that some of those delays were inevitable in the context of very complex applications. Others were perhaps less explicable. It is probably true to say that none of the participants in the procedure has always acted as speedily as possible. So the proposals to speed up the procedure are very welcome.
However, the removal of any power from the judges is most unwelcome. It means that the judges will lose any final influence over the rules governing the conduct of advocates before them. We shall doubtless be told that the noble and learned Lord the Lord Chancellor will consult the judges in every case and will take their advice very seriously. But the fact remains that their advice is not binding.
Some of the difficulties with the existing system lie in the need to secure unanimity among the designated judges. That may well have proved to be too restrictive. But that is not a reason to write out the judges altogether. We believe that a majority decision is an appropriate approach.
In their Second Reading speeches, the noble and learned Lords the Lord Chief Justice and the Master of the Rolls indicated that they did not share these concerns and were content for the noble and learned Lord the Lord Chancellor to take those powers. They were also candid enough to indicate that their views were not shared by the overwhelming majority of their colleagues.
In my submission, the proposals fly in the face of the doctrine of the separation of powers which is a fundamental basis of our constitution. Parliament is the legislature; and the administration of justice is for the
The Government's proposals in the consultation paper, and in this Bill, mark a total change in the position. The judges would no longer be in a position to decide who could and in what circumstances exercise rights of audience and rights to conduct litigation. That power would be given solely to the Executive in the person of the noble and learned Lord the Lord Chancellor--as a Minister and not as a judge. The judges would be reduced to the role of former consultees whose advice could be ignored as the Executive might choose.
That is not acceptable on constitutional grounds. If the United Kingdom had a written constitution, the separation of powers would be enshrined in it, as it is in the constitution of the United States of America. To an American lawyer, it would be a matter of astonishment that the Executive might seek to arrogate to itself the sole power to decide who could speak in the courts or who could conduct litigation in them.
Therefore, we share the view of the majority of judges that it is dangerous for power, fettered only by a duty to consult and the very loose provisions applying to judicial review, to be placed in the hands of one government Minister, however distinguished, eminent and honourable the present holder of that office may be. I beg to move.
Lord Lloyd of Berwick: I rise to support the amendment. Much of what I intended to say has already been said by my noble and learned friend Lord Donaldson of Lymington in relation to the previous amendment. The key amendment in this group is Amendment No. 250. The question which that amendment raises is: who is to make the final decision? Is it to be the Lord Chancellor acting alone, possibly in the teeth of the advice which he has received from the consultative panel and the distinguished judges or is it to be a majority of the designated judges, including, for this purpose, the Lord Chancellor himself?
I have understood all along the need to replace ACLEC, which has been explained so patiently and so clearly by the noble and learned Lord the Lord Chancellor. I can see also that the process of reform should not be able to be held up by a single designated judge who may happen to disagree with some proposal for reform. That argument surely could not apply where the majority of the designated judges disagree with the proposal, still less where all the designated judges disagree with the proposal. At the moment--and I do not expect to be persuaded by the noble and learned Lord the Lord Chancellor on this but I may be--I can see no justification whatever for excluding the designated judges altogether from the decision and confining them to the role of being consulted or being entitled to be consulted.
One needs perhaps to remind oneself, although we all know, who these designated judges are. They are the Lord Chief Justice, the Master of the Rolls, the President
No doubt the noble and learned Lord the Lord Chancellor will say, as indeed he has said and would say, that he would be very slow to disagree with the unanimous view of the designated judges. But that does not really meet the point of principle that the decision should not be his alone. He may also say that his decision could be reviewed by way of judicial review but, as he knows better than anyone, judicial review is not a suitable instrument for arriving at this sort of decision. It is a blunt instrument not suitable for the fine tuning of decisions in this field.
"Fine tuning" is a phrase which is not my own. It is a phrase which is used in the response of the council of the Inns of Court to the Lord Chancellor's consultative paper. In paragraph 6 it says:
Perhaps, for the benefit of the Committee, I may quote one sentence from Mr. Kentridge's opinion. He says,
I am aware that the noble and learned Lord the Lord Chief Justice, in the Second Reading debate, did not see any great difficulty in reducing the role of the designated judges to that of consultees, to use that not very attractive word, but he did accept that in that respect he was not speaking for the majority of judges,
Page 63, line 19, leave out from ("writing") to first ("to") in line 20 and insert--
("(a) for him").
"We understand why it may be considered wrong that a single designated judge, however eminent, should have a power to veto changes to the grant of exercise of rights of audience approved by the Lord Chancellor and the other three designated judges, but we do not understand why it should be necessary to go to the opposite extreme".
That is what we are doing, going to the opposite extreme and relegating the judges to the role of consultees only. The council of the Inns of Court then referred to an opinion of Mr. Sydney Kentridge QC. Mr. Kentridge, in an opinion which again was forwarded to the noble and learned Lord the Lord Chancellor, says that the effect of these proposals is to bring about what he calls a constitutional revolution. Mr. Kentridge is not a man who wastes words. He chooses his words very carefully indeed.
"The persuasiveness of those reasons"--
that is to say, the reasons for extending rights of audience, which for my part I have no difficulty with--
"provides no ground for reducing the rights and powers of the judicial arm of the constitution and transferring them to the executive".
I do not overlook the fact that the noble and learned Lord the Lord Chancellor is in one sense the head of the judiciary, but in that role he has never previously had the powers which he now seeks to obtain, and the proposed new powers will be exercised in his ministerial capacity.
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