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The Lord Chancellor: My Lords, no one disputes that the judges will play an important role in rights of audience issues. The question is whether they should be advisers, decision-makers or part decision-makers.

At present, all decisions under Schedule 4 to the 1990 Act are subject to the individual veto of each designated judge. These amendments would not preserve that position, which I think no one now defends. Instead, they would give the designated judges a power of veto by a majority.

I do not believe that that is appropriate. The decisions of the Lord Chancellor under Parts I, III and IV, are already subject to approval by both Houses of Parliament. It seems to me inappropriate to provide that in these circumstances the designated judges, or a majority of them, should be able to override the decision of the Lord Chancellor, who is responsible to Parliament. It is Parliament which will take the final decision.

As I have previously made clear, I do not accept the argument that decisions about which categories of people should be able to appear in the courts are properly for the judiciary as distinct from Parliament.

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This issue has nothing whatever to do with the separation of powers between executive, legislature and judiciary. The issue is not about the independence of the judiciary but about whether a power is properly for the judges or Parliament. The issue is whether judges, not Parliament, should determine rights of audience. I say as clearly as I may that this is a matter for Parliament. Listening to the noble and learned Lord, Lord Ackner, I began to wonder whether the true thrust of his argument was that Parliament was to be sidelined just because the Government in power have a strong popular majority.

Questions about whether, for example, a class such as crown prosecutors should be able to lead prosecutions in the Crown Court are questions of policy for the Government and ultimately for Parliament to decide in a democracy. I say that Parliament proceeds entirely properly either by primary legislation or by secondary legislation.

We have to look realistically at the history of this controversy and those who have interests to restrict rights of audience. I shall not weary your Lordships with the sorry piece of history which I set out at Second Reading on 14th December 1998 at col. 1110. What it came to was this. The results of six years of painfully slow debate, consultation and advice within ACLEC about what rights of audience employed solicitors should have in the higher courts were in practice negligible. The noble and learned Lord and the designated judges granted the Law Society's application in a very limited form, allowing employed solicitors to appear in substantive proceedings in the higher courts if they succeeded in obtaining the Law Society's higher courts qualifications, but only if led by an advocate in private practice. An employed solicitor could appear as the sole advocate only in preliminary proceedings which did not dispose of the merits of the case.

What source material will this prove for a PhD student whose doctoral theses might be entitled--and if it were published I might even be persuaded to contribute a foreword--"The endurability of restrictive practices in twentieth century Britain"?

Why was it that the designated judges were given vetoes in the 1990 Act? The answer is obvious: the opponents of change thought that this would prove an effective means of preventing any significant liberalisation of rights of audience, whatever the clear purpose of the Act might be. I am sorry to say that, by and large, their hopes were not disappointed. I hope that your Lordships will not repeat the error.

The noble and learned Lords the Lord Chief Justice and the Master of the Rolls made clear at Second Reading that they supported my judgment on this issue. They are the two most senior designated judges who have experience of how the approval system currently works. Your Lordships should weigh opinions and not just count them.

The noble and learned Lord, Lord Bingham, made clear at the last Bar conference, when questioned on the subject, that he did not think it would be an improvement to move to a system in which a majority

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of the designated judges could exercise a veto. He thought this both because, in practice, the designated judges would not wish to reach a split decision and because he thought there was a danger that at some point the perceived views of the judiciary on these questions might come to influence the likelihood of their being appointed to the most senior posts. His firm view was, and is, that the buck must stop somewhere and that the appropriate place is with the Lord Chancellor as the Minister responsible to Parliament whose decisions will be subject to approval, or not, by Parliament. That is my judgment too.

The provisions in the Bill will still require the Lord Chancellor to take the advice of the designated judges in every case, and I or any Lord Chancellor would give great weight to that advice; but I do not believe that the judges should be able to veto decisions which are ultimately for Parliament. The issue is whether rights of audience should be determined by Parliament, not by judges. The dispute we are having has nothing whatever to do with the separation of powers, which is concerned to protect the independence of the judiciary in its own, proper judicial sphere. I hope that the noble Lord will agree to withdraw the amendment.

Lord Kingsland: My Lords, we have debated this matter at great length, from the beginning of the Second Reading until towards the end of the Third Reading of the Bill. We are as far apart as ever. It is because I believe that the independence of the legal profession is inextricably linked with the independence of the judiciary that I wish to test the opinion of the House.

7.15 p.m.

On Question, Whether the said amendment (No. 32) shall be agreed to?

Their Lordships divided: Contents, 89; Not-Contents, 109.

Division No. 3


Ackner, L. [Teller.]
Aldington, L.
Alexander of Tunis, E.
Allenby of Megiddo, V.
Anelay of St. Johns, B.
Bethell, L.
Blatch, B.
Bridgeman, V.
Brightman, L.
Brougham and Vaux, L.
Byford, B.
Carnegy of Lour, B.
Carnock, L.
Chesham, L.
Colville of Culross, V.
Colwyn, L.
Cross, V.
Dean of Harptree, L.
Dixon-Smith, L.
Donaldson of Lymington, L.
Dundee, E.
Fookes, B.
Gisborough, L.
Glenarthur, L.
Goodhart, L.
Gray, L.
Gray of Contin, L.
Greenway, L.
Grey, E.
Hampton, L.
Hamwee, B.
Hanningfield, L.
Hayhoe, L.
Henley, L. [Teller.]
HolmPatrick, L.
Howe, E.
Inglewood, L.
Jopling, L.
Kingsland, L.
Lloyd of Berwick, L.
Lucas of Chilworth, L.
Ludford, B.
Luke, L.
Lyell, L.
Mackay of Ardbrecknish, L.
Mackie of Benshie, L.
Mancroft, L.
Masham of Ilton, B.
Monson, L.
Montgomery of Alamein, V.
Napier and Ettrick, L.
Newall, L.
Newby, L.
Newton of Braintree, L.
Northesk, E.
Norton of Louth, L.
Nunburnholme, L.
Oxfuird, V.
Park of Monmouth, B.
Perry of Walton, L.
Phillips of Sudbury, L.
Platt of Writtle, B.
Poole, L.
Renton, L.
Rodgers of Quarry Bank, L.
Rowallan, L.
Russell, E.
Seccombe, B.
Selkirk of Douglas, L.
Shrewsbury, E.
Simon of Glaisdale, L.
Skelmersdale, L.
Stair, E.
Stewartby, L.
Stockton, E.
Stodart of Leaston, L.
Strathclyde, L.
Taylor of Warwick, L.
Teviot, L.
Thomas of Gresford, L.
Thurso, V.
Tope, L.
Tordoff, L.
Vivian, L.
Wallace of Saltaire, L.
Weatherill, L.
Wigoder, L.
Wynford, L.
Young, B.


Acton, L.
Ahmed, L.
Amos, B.
Archer of Sandwell, L.
Bach, L.
Barnett, L.
Berkeley, L.
Blackstone, B.
Blease, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Chandos, V.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Crawley, B.
David, B.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Evans of Parkside, L.
Ewing of Kirkford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gladwin of Clee, L.
Glenamara, L.
Gordon of Strathblane, L.
Goudie, B.
Graham of Edmonton, L.
Grantchester, L.
Grenfell, L.
Hacking, L.
Hanworth, V.
Hardie, L.
Hardy of Wath, L.
Harris of Haringey, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. [Lord Chancellor.]
Islwyn, L.
Janner of Braunstone, L.
Jay of Paddington, B. [Lord Privy Seal.]
Jenkins of Putney, L.
Judd, L.
Kennedy of The Shaws, B.
Kennet, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Lovell-Davis, L.
McIntosh of Haringey, L. [Teller.]
Mackenzie of Framwellgate, L.
Mallalieu, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Monkswell, L.
Montague of Oxford, L.
Morris of Castle Morris, L.
Morris of Manchester, L.
Nicol, B.
Orme, L.
Peston, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Renwick of Clifton, L.
Richard, L.
Sainsbury of Turville, L.
Sawyer, L.
Sefton of Garston, L.
Shepherd, L.
Shore of Stepney, L.
Simon, V.
Simon of Highbury, L.
Smith of Gilmorehill, B.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Strabolgi, L.
Taylor of Blackburn, L.
Taylor of Gryfe, L.
Thornton, B.
Tomlinson, L.
Turner of Camden, B.
Varley, L.
Warner, L.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
Whitty, L.
Williams of Elvel, L.
Winston, L.

Resolved in the negative, and amendment disagreed to accordingly.

16 Mar 1999 : Column 678

7.23 p.m.

[Amendments Nos. 33 to 44 not moved.]

Schedule 7 [Commission areas and petty sessions areas: amendments]:

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