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The Lord Chancellor: My Lords, there is much to be said for sticking to your last, but I also believe that one can learn to work new lasts.
Lord Mayhew of Twysden: My Lords, before the noble and learned Lord sits down again, may I redirect his attention to the question of fact which both I and the noble and learned Lord, Lord Ackner, asked him? The Lord Chancellor may have been constructing his entertaining notional conversation between the General Council of the Bar and Desmond and it may have slipped his attention, but I asked him whether it was the case that he had urged upon the Law Society, or encouraged it, to reduce its standards for the higher courts qualification, perhaps in
the context of only 1 per cent. of its number having qualified. There may be very good reasons for his having done so and the noble and learned Lord dealt at some length with his views about rules of qualification being too lax or too severe, but he did not answer the question of whether he has encouraged the Law Society to reduce its qualification standards. I believe that the House would be greatly helped if he were to do so.
The Lord Chancellor: My Lords, I seem to recall that I sent a letter on this to the noble and learned Lord, Lord Mackay of Clashfern. I do not have it before me and so I wish to express myself very cautiously. I seem to recall that in that letter I said that the Law Society might well want to seek to change its rules but that, for my part, I would ensure that standards were maintained. Tomorrow morning I shall look out a copy of my letter to the noble and learned Lord, Lord Mackay, and I shall send a copy to the noble and learned Lord, Lord Mayhew.
Lord Ackner: My Lords, I can give a little assistance on that very subject because at col. 998 of Hansard of 26th January, which was the third day in Committee, the noble and learned Lord, Lord Mackay of Clashfern, said:
- "The point I am really anxious about is the next sentence"--
- "which states,
- 'I also expected that the Law Society will wish to propose changes to the requirements of its higher courts qualifications, in order to encourage more solicitors to take up rights of audience in the higher courts'.
- What does that mean? How is one going to encourage more solicitors to take up rights of audience in the higher courts, having regard to the history which my noble and learned friend Lord Ackner has described? One way of doing it is to reduce the standard marginally or more than marginally. The noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Falconer, say that they want to have competent people. I am not quite clear how changes in the qualification regulations will encourage more solicitors to take up rights of audience unless these changes reduce the threshold or the standard. I should say in fairness to the noble and learned Lord that his letter continues,
- 'Having said that, neither the Law Society nor I have any desire to see badly trained or incompetent advocates let loose in the higher courts, and I will ensure that this does not happen'".--[Official Report, 26/1/99; cols. 998-9.]
By my Motion I am seeking to return to the status quo, which involves solicitors adhering to the standards which have been laid down with the approval of the Lord Chancellor's Advisory Committee. I do not believe that that committee will be relevant in the future. I do not know whether the new organisation has to give its sanction to any regulations which the Law Society makes as regards rights of audience. I think not. I believe that that lies within the powers of the Lord Chancellor, hence my anxiety.
In reply to the other matters raised, the noble Lord, Lord Goodhart, overlooked one very important factor in referring to the fact that the Bar survived, despite its anxieties in 1990 and thereafter. It only survived because of the recession. That prevented solicitors from embarking on what they realised was going to be a loss-making activity for two or three years. By opening an advocacy department they would not be able to
employ, consistently and sufficiently, the QCs whom they engaged for some little time to come. When the recession came they had enough on their plate in coping with large rents, and by a whisker the Bar was saved.I have listened with sadness to the fact that the Liberal Democrats will not support me. I believe that at this time of night the Loyal Opposition is likely to be otherwise engaged and, being a realist, in those circumstances, I do not propose to pursue my Motion at this stage.
Clause 31 [Employers of Legal Services Commission]:
[Amendments Nos. 160 and 161 not moved.]
[Amendment No. 162 not moved.]
Schedule 5 [Authorised bodies: designation and regulations and rules]
[Amendment No. 162A not moved.]
Lord Falconer of Thoroton moved Amendment No. 163:
The noble and learned Lord said: My Lords, this group of amendments is a series of minor, and, I believe, fairly uncontroversial amendments to Schedule 5. They are all brought forward in response to points made in Committee. They are designed to refine the procedures contained in the Bill for dealing with the authorisation of bodies to grant rights of audience and rights to conduct litigation; the approval of applications by such authorised bodies to alter their qualification regulations or conduct rules; the use of the call-in power to alter the rules of authorised bodies; and the revocation of a body's authorisation to grant rights of audience or rights to conduct litigation.
I shall deal with four of these amendments, Nos. 163, 165, 171 and 173, together. They go to the same point and are all brought forward in response to a commitment which I made to the noble Lord, Lord Goodhart, to consider strengthening the Bill as regards transparency of decision-making under the schedule. The noble Lord moved a group of amendments originally which had much the same effect as these. They require me to give reasons automatically if I refuse an application for authorisation; refuse an application for alteration of conduct rules and qualification regulation; use the call-in power to order alterations to be made to the rules of an authorised body; or revoke the designation of an authorised body.
My expectation is that, generally, applications for authorisation and for rule alterations will be sensible, and that they will be approved, in accordance with the statutory objective. Similarly, my expectation is that authorised bodies will not seek to impose unduly restrictive rules regarding rights of audience and rights to conduct litigation on their members, nor that they will become unfit to retain their authorisation. So I will not, therefore, in the normal course of events, need to exercise the powers to impose rule changes or revoke authorisation. If I do so, it is right that I should be obliged to give my reasons. I agree with the noble Lord, Lord Goodhart, who made the point in Committee that
These amendments standing in my name are drafted slightly differently to those moved originally on this subject. The first three amendments have identical effect to their predecessors--the changes are ones of style only. The fourth amendment, which deals with the obligation to give reasons when giving notice of my intent to revoke an authorised body's authorisation, goes slightly further than its predecessor. The original would have required me to give reasons for revocation if the authorised body in question applied in writing. There is no reason, however, why the Lord Chancellor should not be required automatically to give his reasons, as he would be in the case of the first three amendments. He has therefore redrafted the amendment accordingly.
I turn now to Amendments Nos. 168 and 169. These fill a gap left by an earlier group of amendments moved by the noble Lord, Lord Goodhart, which provided that the Director General of Fair Trading and the panel would be obliged to publish the advice they gave on applications made under the new Schedule 4. I was happy to accept the amendments. However, they did not cover Part III of the new Schedule 4, and the noble Lord accepted that Part III should be amended to achieve consistency with the other parts of the schedule.
I turn now to Amendment No. 164, which provides that the Lord Chancellor may not refuse to approve an authorised body's application to change its conduct rules or qualification regulations, unless it has been referred to the panel for advice. This arises from an amendment moved originally by the noble Lord, Lord Goodhart. As I said in Committee, the purpose of bypassing the consultation procedure is to expedite the processing of an uncontroversial application. Were the application controversial--and by definition it would be so if the Lord Chancellor were minded to refuse it--it would be appropriate to refer it to the panel. It was always the intention that this would happen in practice, and I am happy that this should be put on the face of the Bill. I did not accept the amendment in Committee because we were unsure whether the drafting might not need revision. Two drafting amendments have been made to the noble Lord's original amendment, for clarity: "may" has been substituted for "shall" and "received advice" for "sought the advice". I beg to move.
Page 66, leave out line 1 and insert ("If the Lord Chancellor has decided to refuse the application he shall also").
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