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Lord Mayhew of Twysden: My Lords, before making up my mind on how I shall vote on this interesting amendment, I shall be interested to hear the answer of the noble and learned Lord the Lord Chancellor, or the noble and learned Lord, Lord Falconer, if he is to reply, on what seems to me a significant assertion in the speech of my noble and learned friend Lord Ackner. He referred to correspondence that had passed between the noble and learned Lord, Lord Mackay of Clashfern, and, I think, the Lord Chancellor. The noble and learned Lord, Lord Ackner, asserted that it was conceded that attempts had been made to encourage the Law Society to lower the standards of the examinations which they apply to solicitors who wish to acquire rights of audience in the higher courts. If that is so, it is a serious development and one on which I shall be interested to hear the Lord Chancellor's reply.
If the Law Society is not to be the most appropriate judge of the standards to be applied, who is? The same is true of the Bar. I have always held rather heretical views for someone who has held the title of Leader of the Bar and has had the honour to be Attorney-General. I felt that on the whole the Bar overestimated the degree of challenge and danger to an independent Bar if solicitors were allowed to acquire rights of audience in the higher courts. I held that view because I believe advocacy to be a profession, a skill and an art which one has to practise every day if one is to be at the top of one's form. In addition, I did not think that solicitors would find it sufficiently remunerating. I have always held that somewhat heretical view as someone who is a devoted admirer of the Bar and an upholder of the virtues and values of an independent Bar.
It is extremely important to know whether, in order to get more solicitors qualified, the Lord Chancellor has encouraged their professional body to lower standards of examination which it felt right to impose. I shall listen with great interest to that part of the Lord Chancellor's reply.
The Lord Chancellor: My Lords, the noble and learned Lord, Lord Ackner, asks your Lordships to delete Clause 30 from the Bill. He has already persuaded noble Lords to delete the former Clause 31 from the Bill. On that occasion, he succeeded, I rather think it is worth noting, because of the votes of hereditary Peers, and because the Liberal Democrat Peers were unable to decide what to do given the deep split in their ranks between those who really belong to the barristers' party, QCs' section, and the remainder who are the true heirs of Cobden and Bright. I was not quite clear as to the
way the noble Lord, Lord Goodhart, veered today, but it appeared to me to be reluctantly in the direction of Cobden and Bright.Conservative Peers seem to have voted on the basis simply that it was an opportunity to vote against the Government regardless of the merits of the argument. I wonder whether any of them experienced a pang of regret once they realised what they had voted for. They had not been long enough in the Chamber to know. I note that the noble Lord, Lord Tebbit, is not in his place now. I had not previously thought of him, for example, as a leading defender of the privileges of the private Bar. But there it is.
And now I have my eye firmly on the Liberal Democrat Benches. On the previous occasion, the noble Lord, Lord Goodhart, made it clear that his party had no policy on how it should vote on the rights of audience issue; and he recommended it to abstain. So there is not a party policy other than to abstain. And even the policy to abstain cannot be adhered to because of the priorities of the noble Lord, Lord Thomas of Gresford, as a member of the barristers' party, QCs' section. He drove them into the Lobbies with the noble and learned Lord, Lord Ackner. If even at this hour of the night, the noble and learned Lord seeks to test the opinion of the House, I suppose we shall see consistently the noble Lord, Lord Thomas of Gresford, dutifully following the noble and learned Lord into the Lobbies, and the noble Lord, Lord Goodhart, following the Government.
I wish to acknowledge that there was one notable exception to the conduct of the Conservative Opposition on the previous amendment. My noble and learned predecessor Lord Mackay of Clashfern voted for the Government, contrary to how his party voted--
Lord Henley: My Lords, I am grateful to the noble and learned Lord for giving way. He has confirmed my belief that the vote he is speaking about was the one which took place at the Committee stage, which the Government lost and we and some of the Liberal Democrats won. Will he remind the House that on that occasion only 75 members of his party and others voted for the Government? It was only 6.30 on a Thursday evening and the Opposition put in only about 85 Peers to vote. I do not remember seeing the noble Baronesses, Lady Scotland and Lady Kennedy of The Shaws, in the Chamber. I am sure that they had a certain interest in the matter, but perhaps they wanted to be away on that occasion.
The Lord Chancellor: My Lords, I do not quite understand the relevance of that intervention to the proposition that my noble and learned predecessor, who perhaps has some expertise in these matters--expertise which the 80-odd Conservative hereditary Peers who went into the Lobbies by definition did not have because they had not even listened to the debate--voted with the Government. I want to take this opportunity of expressing my gratitude--
The Lord Chancellor: My Lords, I will give way when I choose. I want to take this opportunity of
expressing my gratitude to the noble and learned Lord, Lord Mackay of Clashfern, for his consistency and his characteristic unwillingness to engage in political opportunism. I now give way.
Lord Ackner: My Lords, my noble and learned friend is spending much time and much energy--
Lord McIntosh of Haringey: How long did you speak!
Lord Ackner: I spoke with success and I did not muddle up the two clauses. I intervened to say that my noble and learned friend the Lord Chancellor is spending time and energy on a battle we have already won, which is Clause 31. I am interested in his reply to Clause 30. With all his salutations to his predecessor, he overlooks the hostility of the noble and learned Lord, Lord Mackay of Clashfern, to Clause 30. It was in relation to Clause 30 that the noble and learned Lord, Lord Mackay, went on to draw attention to the correspondence which he had with the Lord Chancellor demonstrating his anxiety that the result of Clause 30 was designed to reduce the quality of the restrictions on rights of audience. Perhaps my noble and learned friend the Lord Chancellor might consider at some stage dealing with that which relates to Clause 30 and not battles past and won.
The Lord Chancellor: My Lords, I think that this really must be a first for the noble and learned Lord, Lord Ackner. This is the first time in 12 years in this House that I have heard him praise my noble and learned predecessor Lord Mackay of Clashfern. And it has not escaped my attention that he has done so and prayed in aid the noble and learned Lord only in order to criticise his successor.
Before I leave the battle which the noble and learned Lord has temporarily won, I will take this opportunity to say to your Lordships that the Government will seek to reverse that defeat in another place. I await with interest to see how the Opposition parties vote there.
Perhaps the Conservative Party wishes to be seen as a friend of the Bar and will again oppose the Government. If it does so, it may well be misunderstanding the true position of the Bar. I believe that the Bar Council is realistic and accepts the inclusion of the former Clause 31 in the Bill. It is only the noble and learned Lord who wants to defend the indefensible. The present chairman of the Bar stated in his letter to the Financial Times of 3rd December:
- "The argument is not now about who has rights of audience but about ensuring that advocacy is provided to a consistently high standard and at a competitive cost to the client".
I have a vision of the noble and learned Lord, Lord Ackner, emerging from the deep like some kind of latter-day Laocoon, declaring to the Bar, "I am still your friend", and the Bar replying timorously, "But
Desmond"--and they would say "Desmond" because one is wise to be cautious with Laocoons--"I do not really want to be your friend on this".Most of Clause 30 is a simple re-enactment in a different form of provisions which are already in force under the Courts and Legal Services Act 1990. The 1990 Act put rights of audience and rights to conduct litigation on a systematic statutory basis for the first time. It provided that professional or other bodies could be authorised under a statutory procedure to grant those rights to their members. Authorised bodies were also given the power to regulate the exercise of those rights by their members, subject to the requirement that their rules and regulations and any alterations to them should be approved.
At the time that the 1990 Act was passed, there were already two bodies whose members had rights of audience or rights to conduct litigation, or both--the Bar Council and the Law Society. Therefore, special provision was made for both of those bodies. The Act made both of them authorised bodies for the purpose of granting rights of audience and made the Law Society an authorised body for the purpose of granting rights to conduct litigation. Existing members of both bodies were deemed to have been granted the rights they already had and the existing rules of both bodies were deemed to have been approved. That was the effect of the legislation of our predecessors.
Clause 30 essentially continues those arrangements with one significant difference in relation to solicitors, with which I shall deal in a moment. The clause inserts a new Section 31 into the 1990 Act. Subsection (1) of the new Section 31 provides that all barristers are deemed to have been granted a right of audience before every court in relation to all proceedings. That is already the case under the existing Section 31 of the 1990 Act.
All barristers, including employed barristers, are currently deemed to have been granted full rights of audience when they are called to the Bar. But barristers can exercise those rights only in accordance with the rules of the Bar. Subsection (1) preserves that position. It provides that rights of audience are exercisable only in accordance with the qualification regulations and rules of conduct laid down by the Bar Council and approved under the 1990 Act.
Subsection (1) means, for example, that a barrister who has not undertaken pupillage may not exercise the full rights of audience that he theoretically has because he has not met the requirements of the Bar's qualification regulations. Similarly, a barrister may not exercise his full rights of audience as a barrister in private practice if he is not a member of chambers because he would not then be complying with the Bar's rules of conduct.
At present, the position of solicitors differs from that of barristers in that they are given rights of audience in the lower courts only on their admission to the Roll of Solicitors. They are granted rights of audience in the higher courts only when they have obtained the Law Society's higher courts qualification. If they obtain such a qualification, they are retrospectively deemed to have
been granted full rights of audience on admission to the Roll of Solicitors. But a solicitor who has not obtained the qualification does not have theoretical rights of audience to exercise in the higher courts unlike a barrister in the equivalent position.Despite that theoretical difference, barristers and solicitors are really in the same position as regards the exercise of rights of audience in the higher court. They may exercise such rights only if they have met the requirements of the relevant qualification regulations and comply with the relevant rules of conduct of their professional bodies.
Clause 30 will not disturb that position; on the contrary, it will make it explicit. However, Clause 30 will alter the theoretical basis on which solicitors exercise rights of audience by putting them on a par with barristers.
I understand the point of the noble Lord, Lord Goodhart. He might ask, "What is the point of doing that?" The answer is simple. The current position is a relic of the time when solicitors were thought of as second class legal citizens who could not be trusted to appear in the higher courts. There is no reason whatever why solicitors should not be put on the same theoretical footing as barristers. That change of emphasis may in itself encourage more solicitors to think of themselves as potential higher court advocates. However, Clause 30 will not, in itself, lead to any solicitor exercising rights of audience in the higher courts who does not already have such rights.
Subsection (2)(a) of Clause 30, therefore, provides that all solicitors are deemed to have full rights of audience in all the courts, but they may exercise those rights only if they comply with the qualification regulations and rules of conduct imposed by the Law Society.
I have said many times that I am as opposed to professional rules in relation to rights of audience which may be too lax, as I am opposed to rights of audience in accordance with rules that may be too restrictive.
This provision is not money-driven, although I have no objection to saving public money. It is quite untrue that my rights of audience reforms are driven by a desire to save money or, as the noble and learned Lord, Lord Ackner, put it, are driven by the Treasury. That is disproved by the fact that legal aid spending will remain at about £1.6 billion for the next three years.
The noble and learned Lord, Lord Ackner, spoke at some length about the failings of solicitors as advocates, about how many of them have failed the test for becoming a higher court advocate, and so on. I gently say to the noble and learned Lord that if barristers were initially confined to appearing in the lower courts and had to take similar tests before appearing in the higher courts, it might be interesting to compare their pass rate. However, of course, they do not have to take such tests. The day on which a barrister finishes his or her pupillage, he or she is eligible to appear before the Privy Council or the House of Lords in its judicial capacity or in a murder trial or a rape trial, regardless of his or her experience.
Such arguments are, in any case, strictly speaking irrelevant to this clause, as the clause leaves all the existing solicitors' tests in place. It is open to the Law Society now to propose changes to those tests, or to propose alterations in the way in which solicitors are trained. I say to the noble and learned Lord, Lord Mayhew of Twysden, that it will remain open to them to do so after the Bill is passed. Contrary to what the noble Lord suggested, everything that I have said is in accord with my own hostility to rules which are too lax governing the acquisition of rights of audience.
Let me make it absolutely plain that I have no wish to see insufficiently qualified or incompetent advocates practising in the higher courts or anywhere else. The position under subsection (2)(a) will still be that solicitors can appear in the higher courts only if they have met the requirements which the Law Society imposes, just as at present. Solicitors will be in the same position as barristers. They will have full rights of audience in principle, but whether they can exercise them fully in practice will depend on whether they have complied with the relevant rules.
I believe that a specialist Bar will prove to be the most efficient means of providing specialist advocacy services in the courts. The experience of New Zealand and of Australia proves that. The Bar does not need to be cosseted by restrictive practices. In my view, it will go from strength to strength on its own merits. I am as proud of the profession from which I come as is the noble and learned Lord, but I have greater confidence than he in its capacity to flourish without restrictive practices. On that basis, I invite the noble and learned Lord to withdraw his amendment.
9.30 p.m.
Lord Renton: My Lords, before the noble and learned Lord sits down, perhaps I may agree with a great deal of what he has said, but there is one matter which, historically, I think that he should try to get right. My memory goes back as far as 1933, when I started practising at the Bar, and I was first elected to the Bar Council in 1938, so my knowledge of those times is not entirely inadequate. I assure the noble and learned Lord that in those days the assumption was that barristers should stick to what they were trained to do and should not usurp the functions of solicitors and that solicitors should not have a right of audience in the High Court because they were not trained to advocacy.
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