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Lord Hylton: My Lords, I am entirely happy with the order as it stands. Nevertheless, it occurred to me during Question Time earlier today that it was perhaps just possible that this House was treading into slightly dangerous areas and was perhaps not quite exercising its usual prudence.
We need to bear two points clearly in mind. First, the Belfast agreement provides for a two-year period during which decommissioning can take place. That two-year period is a considerable way from being completed. Secondly, I think it would be unwise to try to establish unnecessary linkages between one set of circumstances and one process and another.
It does not quite become us to try to be the interpreters of remarks made by a neighbouring and friendly Prime Minister. What is important is that the two governments, in this country and in the Republic of Ireland, should continue, as they have now been doing for some time, to stand shoulder to shoulder and to see this process through to a successful conclusion.
Lord Nunburnholme: My Lords, can noble Lords count on their fingers and toes how many bullets and how many weapons have been handed in by the IRA since the Good Friday Agreement?
Lord Dubs: My Lords, I am grateful to all noble Lords who have taken part in this debate. Perhaps I may deal with the specific points that were mentioned. The noble and learned Lord, Lord Mayhew, asked about the prospects for more decommissioning taking place. We know of no immediate intention on the part of any paramilitary group to decommission. But to prove their commitment to peace, they must do so. As I have said on a number of occasions, it is not a question of whether they will do so; it is a question of when. All the parties are committed to decommissioning because they subscribe to the Good Friday Agreement. It is up to them to prove that commitment in deeds, by decommissioning, and to do so soon.
The noble and learned Lord went on to ask what sanctions the Government have if there is not proper progress towards decommissioning. It was clear under the agreement that all the parties to it were committing themselves to decommissioning of arms, to be
completed in two years. If any aspect of the agreement is not working, there are provisions for a review of the agreement. But the Government are clear that this is not the time for such a review. It would not be appropriate to carry out a review at the present time. It is clearly something for which there is scope within the agreement if it was felt that that was the best way forward.I entirely agree with the noble and learned Lord, Lord Mayhew, in relation to the work and commitment of General Chastelain. He has shown a commitment in difficult circumstances. He has dealt with the people appointed by the various parties and groups as their link and I very much hope that he will soon have some successes to demonstrate. He certainly deserves our thanks for his commitment and dedication in what he is seeking to do.
I agree with the noble Earl, Lord Attlee, in relation to paramilitaries. Of course, it is not only one paramilitary group that must decommission; they must all do so. That is the commitment into which they entered and that is the demand we have the right to make upon them.
The noble Lord, Lord Redesdale, mentioned that the LVF had already decommissioned and it is gratifying that it did so. But we want it to decommission the rest of its arms and all the other paramilitary groups to do likewise.
The noble Lord, Lord Rathcavan, urged that there should be real decommissioning and that the Prime Minister should take his cue from the Taoiseach in making statements. The Prime Minister has committed himself publicly on many occasions about the need for decommissioning. He has shown a commitment to achieving peace in Northern Ireland unprecedented in a Prime Minister of this country. That commitment remains and I know that he is ready to throw himself into this matter in any way that will help. It is not necessary for him simply to repeat anything that is said by the Taoiseach. His position is very well known and will continue to be stated clearly.
I am grateful to the noble Lord, Lord Hylton, for reminding us of some of the key aspects of the agreement and indeed it is proper that we should not seek to create linkages where none exist. That would not be the right thing to do, given that we have subscribed completely to the agreement. But that is not to say that we should not press the paramilitaries to decommission and to start doing so now.
In reply to the noble Lord, Lord Nunburnholme, we have not had any decommissioning; there has not been a single bullet decommissioned by the IRA. It is a demand of them and the other paramilitaries that they should do so. As the noble and learned Lord, Lord Mayhew, said, this order makes it possible for decommissioning to happen. It is a precondition for further decommissioning for the next year and therefore it is necessary to have it so that people can hand in their guns and explosives. I hope very much that they will do so as soon as possible. I commend the order to the House.
On Question, Motion agreed to.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 8.42 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The sitting was suspended from 8.13 to 8.42 p.m.]
Access to Justice Bill [H.L.]
Consideration of amendments on Report resumed on Clause 29.
The Lord Chancellor moved Amendment No. 158:
The noble and learned Lord said: My Lords, this amendment obliges the Lord Chancellor to publish any recommendations and advice made to him in the course of pursuing its statutory duties under subsections (2)(a) and (2)(b) of the new Section 18A which is inserted into the Courts and Legal Services Act 1990 by Clause 29 of the Bill. That is to say, any advice or recommendations made to him by the consultative panel about maintaining standards in professional conduct, and in legal education and training, made as a result of the panel's programme of work, or as a result of a specific request from the Lord Chancellor to consider an issue.
This amendment reflects a commitment made in Committee on 28th January (at col. 1212 of Hansard) to the noble Lord, Lord Kingsland, who was good enough to withdraw his amendment on this subject in order that I might bring my own. Subparagraph (a) of this amendment has the same effect as the noble Lord's amendment. Subparagraph (b) extends the requirement to publish any advice given by the panel in response to ad hoc requests by the Lord Chancellor. I said in the earlier debate, and I say again, that I believe it right in principle to accept the proposal of the noble Lord, Lord Kingsland, and indeed to go further. The wording of the amendment as a whole has been expanded, to put it beyond doubt that there is a clear and specific requirement for the Lord Chancellor to publish such advice and recommendations from the consultative panel.
This Government strongly believe in open government. It is right in principle that an independent state-funded body should publish its advice. That is especially the case where the body's views may differ from those of its sponsoring Minister--in this case the Lord Chancellor. It is right that interested parties should be able to satisfy themselves that the body is giving reasonable and independent advice. The noble Lord, Lord Kingsland, made this very point on the first day of Committee on 19th January (at col. 510 of Hansard).
In the case of the legal services consultative panel, I do not believe that there are likely to be any public interest considerations that might make publication of its advice undesirable. I therefore have no hesitation in seeking a statutory duty for the panel to publish advice and recommendations which it gives under these provisions. I beg to move.
Lord Kingsland: My Lords, I am delighted that the noble and learned Lord the Lord Chancellor has responded in this generous and refreshing way to my amendment. He has improved on it and widened its scope. As he said, he has struck another blow for open government and I thank him.
On Question, amendment agreed to.
Clause 30 [Barristers and solicitors]:
Lord Ackner moved Amendment No. 159:
The noble and learned Lord said: My Lords, among the many qualities that the noble and learned Lord the Lord Chancellor has and enjoys is that of a very shrewd politician. Occasionally he adds a magic touch. That is when he is at his most dangerous. His illusions then become almost credible. That is the position in regard to Clause 30.
What are the Government seeking to achieve in the long run by Clause 30? It is surely this. The Government wish to reduce substantially the cost of legal aid, and one of their main methods of achieving that is by block contracts. Solicitors tender for these contracts, many of which will oblige them to undertake cases from start to finish, including advocacy in the higher courts where that is the appropriate venue, at pre-determined costs. That will involve a considerable increase in the demand for solicitor advocates before higher courts.
What is then the problem? Since December 1993, when solicitors in private practice were granted by the Lord Chancellor and the designated judges rights of audience in the High Court, less than 1 per cent. of the profession--about 730 solicitors out of more than 78,000 in private practice--have obtained those rights. To obtain those rights it was necessary to comply with tests or requirements laid down by the Law Society. When I moved that Clause 30 should not stand part of the Bill, the noble and learned Lord, Lord Falconer, responded to those figures by saying, with his usual understatement:
On the third day of Committee (Hansard, col. 993), I drew attention to the very low pass rates by solicitors. For example, in 1995 the pass rate for civil tests was 28 per cent. I also drew attention to the statement of Professor Scott in 1996, when he was the Law Society's advocacy training adviser, that in his view,
Quite apart from the poor exam results and the fact that many of those who had achieved the necessary standard did not exercise the rights of audience which they had obtained, the Lord Chancellor's advisory committee was concerned by the slow take-up of the opportunity available to solicitors in private practice to appear in the higher courts over the past five years.
In Committee I drew attention to the research commissioned by the Lord Chancellor's advisory committee and to the important reasons which appear to have been established: first, the uncertainties of listing of cases and results and the loss of time spent hanging around in law courts; secondly, the insufficiency of the volume of advocacy work; and, thirdly, the fact that barristers were generally cheaper than solicitors for most routine work.
This is where the magic of the noble and learned Lord came into play. How can more solicitors be encouraged to take up advocacy? Indeed, how can more solicitors be encouraged to obtain the appropriate rights of audience? In order to premedicate the great British public, upon whose hostility to lawyers one can always rely, a discussion paper was produced by the noble and learned Lord the Lord Chancellor in June 1998. In his foreword the noble and learned Lord stated:
The noble and learned Lord the Lord Chancellor did not reveal to what restrictive practices he was referring, the "unnecessary restrictions" or the "unjustified obstacles". They certainly did not exist in relation to solicitors in private practice.
This line of reasoning--or unreasoning--was developed in the subsequent pages of the paper:
Again, there is no identification, the statement is unjustified and there is suppression of what was the true position on the ground; namely, that it is possible for solicitors in private practice who are competent and interested enough to obtain rights of audience in the higher courts.
The drafting of Clause 30 masks its true intent. This was rumbled by the noble and learned Lord, Lord Mackay of Clashfern, who on the third day of Committee stage (on 26th January) referred to his correspondence with the Lord Chancellor on this matter. That is referred to in the Official Report at col. 998. This established that Section 30 was there to enable the Law Society to reduce its standards substantially in order to encourage the
I turn to the statutory objective set out in Section 17 of the Courts and Legal Services Act 1990 which is:
Lord Goodhart: My Lords, I am afraid that I am unable to support the noble and learned Lord, Lord Ackner, in his amendment. I say that with a good deal of regret because he has supported a number of the amendments that I have moved. Indeed, in other respects I have supported some of his amendments. But I believe that the change in the law that results from Clause 30, while I doubt that it will do much good, is equally unlikely to do any harm and therefore it is not a matter that I feel it necessary to oppose.
In 1990 when rights of audience in the High Court were first made open to solicitors there was a fear in the Bar that solicitors would take over much of High Court advocacy and that leading firms of solicitors would pay in effect large transfer fees for successful members of the Bar to transfer to them and set up their own advocacy departments. That simply did not happen. Very few barristers have become solicitors in the past few years even though they can take with them their rights of audience if they do so. Some leading solicitors have joined the Bar.
The reason why more solicitors have not qualified as advocates--in this respect I entirely agree with the noble and learned Lord, Lord Ackner--is that basically they do not want to do advocacy. There are real advantages to solicitors' firms in employing barristers rather than setting up substantial advocacy departments of their own. I recall once asking a partner in a medium size London firm who were good clients of mine--it had perhaps 30 to 40 partners--how many different barristers the firm instructed during the course of a year. The answer was about 250. That meant that the existence of an independent Bar gave it access to a wide selection of expertise that not even the biggest firm of solicitors in the City could provide for its clients.
The experience of the past eight years has shown that the Bar is not at serious risk from the extension to solicitors of rights of advocacy. The Bar Council is not
Page 18, line 5, at end insert--
("( ) The Lord Chancellor shall publish--
(a) any recommendations made to him by the Consultative Panel in performance of the duty in paragraph (a) of subsection (2); and
(b) any advice provided to him by the Consultative Panel in performance of the duty in paragraph (b) of that subsection.").
Leave out Clause 30.
"In my book, that does not signal a huge appetite by solicitors to become specialist advocates".--[Official Report, 26/1/99; col. 996.]
The Law Society had set the standards which, again in the words of the noble and learned Lord, Lord Falconer, had weeded out those who were no good.
"the papers that the test board has produced have provided a fair test on matters that advocates going into the high courts really ought to know about ... Those who failed have in my view deserved to
16 Feb 1999 : Column 629fail. Indeed, often I have been astonished at the ignorance of some candidates, especially those doing poorly in the criminal test".--[Official Report, 26/1/99; col. 994.]
"We accept that entry to the legal profession needs to be controlled, in order to ensure the maintenance of high standards which protect the public. But the right to maintain properly high entry standards to a profession must not be misused to impose restrictive practices for the benefit of those already established in the profession. There is a public interest in ensuring that properly qualified lawyers can practise their profession without being subject to unnecessary restrictions. The Government believes that unnecessary and unjustified obstacles still prevent solicitors and employed barristers from obtaining and exercising rights of audience in the higher courts".
"The time has come for more radical change. Our view is that all qualified barristers and qualified solicitors should in principle have the right to appear in any court. We accept that the professional bodies, the Bar and the Law Society should be able to ensure that their members are properly trained to exercise these rights, and that they should be able to impose any rules of conduct necessary to maintain high standards. However, any such requirements should be tested against the public interest in allowing access to the courts, and ensuring that no unjustified restrictions are placed on the exercise of rights of audience".
What were these "unjustified restrictions", which the noble and learned Lord the Lord Chancellor did not think it was appropriate to identify?
"The independence of the legal profession helps guarantee civil liberties for the public. But this independence is not a justification for immunity from public scrutiny, or for the preservation of outmoded structures or practices".
Once again, there is no identification of the "outmoded structures or practices". There certainly were none in relation to solicitors in private practice. No one reading
that foreword would have suspected that there were in fact no unnecessary and unjustified obstacles preventing solicitors in private practice from exercising rights of audience in the higher courts. In particular, there were no outmoded practices or structures preventing the solicitor in private practice from enjoying rights of audience.
"In practice, however, only 624 solicitors, out of more than 70,000, have so far obtained the Law Society's Higher Courts Qualification. Thus, barristers in private practice have retained an effective monopoly in the higher courts, and litigants there have no effective choice other than to employ their services"--
that is certainly not the fault of the barristers--
"As far as possible the choice of which lawyer represents a litigant in court should depend simply on the best interests of the litigant and on value for money; the choice should not be limited by out of date restrictive practices".
"The Government accepts that rights of audience should not become the subject of a 'free for all', and that these rights must generally be reserved to qualified members of the legal profession. However, the present position is over-restrictive".
One asks: in what way is that the case? Why were the Government so coy in the consultative paper about identifying the true position?
"The Government does not agree that the majority of qualified lawyers should in most circumstances be debarred from appearing in the higher courts, which is currently the case [paragraph 2.5]".
The debarring was self-imposed in relation to solicitors in private practice. Nowhere do the Government state the true position and explain that solicitors in private practice are either not interested in advocacy or do not have the competence to pass their own society's reasonable tests; nowhere is there any reference to the research work that the Lord Chancellor's own advisory committee has commissioned. All this material, which was suppressed, was to ensure the great illusion created by the Lord Chancellor that the Bar was operating,
"the worst kind of restrictive practice--designed simply to protect the work and incomes of privately practising barristers, with no shred of benefit to the public".
Those were words which the noble and learned Lord, Lord Falconer, so ill-advisedly quoted from his brief when seeking to support Clause 31 which made reference to employed lawyers.
"That which weakens or detracts from the standards and quality of the advocates necessarily, in the long run, weakens and detracts from the quality and standard of the judges".
"the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new or better ways of providing such services and a wider choice of persons providing them"--
I stress the next words--
"while maintaining the proper and efficient administration of justice".
In my submission, the Government in promoting Clause 30 are in breach of that statutory objective because they would be failing to maintain,
"the proper and efficient administration of justice".
I beg to move.
9 p.m.
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