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Lord Wigoder: My Lords, I had not intended to intervene in this debate. I have been persuaded to do so

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by an observation of the noble Lord, Lord Borrie. If I may paraphrase his remarks, he said that there was no reason why a prosecuting lawyer who was employed by the CPS would not exercise precisely the same high standards as a prosecutor who was member of the independent Bar. I entirely agree with what he said.

My problem is that there may occasionally be those who fall short of those high standards, whether they be members of the independent legal profession or those employed by the CPS. If they are members of the Bar, the noble and learned Lord the Lord Chancellor will know the many informal pieces of machinery that exist by which those standards can be enforced. His colleagues at the independent Bar will recognise what has happened. The matter will inevitably come to the head of his Chambers. If it goes any further, it will come to the leader of his circuit. If it goes further than that, it may well come to the presiding judge, to his Inn, or to the Bar Council. There are innumerable informal ways in which it can be made clear that an independent barrister who falls short of the proper standards is dealt with speedily and efficiently.

I should very much welcome some indication from the noble and learned Lord the Lord Chancellor that, where similar behaviour takes place--as it is bound to do occasionally--on the part of someone who is an employed barrister, there will be adequate machinery to ensure that it is recognised and is dealt with the same efficiency.

Lord Kingsland: My Lords, so far as concerns the Crown Prosecution Service, I wholly endorse everything that the noble and learned Lord, Lord Ackner, has said about the appropriateness of its employees taking cases in the Crown Court.

However, I recognise that at this stage of the passage of the Bill through Parliament I am faced with a situation where the Liberal Front Bench is opposed to the Motion. I have to confess that some members of the Opposition are also opposed to it. I refer, for example, to the noble and learned Lord, Lord Mayhew of Twysden, who is a supporter of the Government's line on the Crown Prosecution Service. Although I hope that I do not do him any injustice, I think that would also be true, were he present, of the noble and learned Lord, Lord Mackay of Clashfern. In those circumstances, it is therefore the Opposition's position that they will not support this Motion if the noble and learned Lord, Lord Ackner, presses it to a vote.

The Lord Chancellor: My Lords, with the leave of the House, I shall speak to Amendments Nos. 70 to 78 at the same time as responding to the noble and learned Lord's Motion numbered 70A.

Clause 32 of the Bill will leave intact the principle that lawyers' rights of audience are governed by the rules and regulations imposed by the authorised bodies which grant those rights. But there are some rules and regulations which simply have to be recognised for what they are--restrictive practices, such as those which

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prevent employed barristers and solicitors from appearing in the higher courts simply because of their status as employees.

Amendment No. 70 reinstates the principle enshrined in what was originally introduced as Clause 31 of the Bill. I am disappointed to say that that clause was rejected by those who clearly believe that discrimination against employed lawyers can be justified.

This is an increasingly anachronistic and isolated attitude. In the other place, the Opposition Front Bench spokesman, the honourable Member for Surrey Heath, welcomed the long-awaited removal of the bar on employed lawyers appearing in court on behalf of their employers. So, in the light of the remarks of the noble Lord, Lord Kingsland, I must congratulate him on a consistency of approach in this House.

Lord Kingsland: My Lords, just to make it absolutely clear to the noble and learned Lord, my remarks referred solely to the Crown Prosecution Service. So far as other employed lawyers are concerned, the Opposition accepts the Government's position.

The Lord Chancellor: My Lords, the Law Society actively supports Amendment No. 70 and, significantly, the Bar Council does not oppose it. The Bar Council's view is that any extension of employees' rights of audience should be in the context of a competitive market in advocacy services, subject to safeguards in the public interest.

That raises an important point. It is in the public interest to have a competitive market for advocacy services only if we are able to maintain standards. I have no desire to see badly trained or incompetent advocates let loose in the higher courts, and I will work with professional bodies to ensure that that does not happen. Any changes in the qualification requirements will be subject to my approval. I will not tolerate anything that jeopardises the current high standards of advocacy.

Concerns have been expressed about the Law Society's new higher court qualifications. The relevant rules of the Law Society were amended in November last year with the unanimous approval of the designated judges and myself acting on the advice of ACLEC and the Director-General of Fair Trading. The amended rules, which came into effect in April this year, are simpler and establish a new route to qualification, but they are no less exacting.

If an employed lawyer, whether barrister or solicitor, has met the high qualification standards required by his professional body, then I do not see how it can be regarded as against the public interest for him to be able to exercise full rights of audience. At present we have the absurd position where an employed barrister, however senior, can exercise absolutely no rights of audience whatever in the higher courts. Even the Director of Public Prosecutions, Mr David Calvert-Smith QC, a barrister of 30 years standing, lost his rights of audience on the day he was appointed as the Director of Public Prosecutions, as did his predecessor, Dame Barbara Mills.

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Employed solicitors are scarcely in a better position. An employed solicitor advocate can only appear in substantive proceedings in the higher courts led by a barrister or, theoretically, by a solicitor-advocate, in private practice.

The Government simply do not believe that the professional bodies should be free to apply discriminatory rules of this kind, and reinserting this clause will prevent them from doing so. It provides that rules which limit the rights of audience of employed advocates are not binding on them if they do not also apply to their colleagues in private practice.

The clause will enable Crown prosecutors to prosecute in the Crown Court, and all other employed lawyers to appear as advocates in the higher courts provided that they have met the qualification criteria which apply to them.

Once qualified, employed lawyers will, of course, continue to be regulated by their professional bodies. But we need to ensure that this regulation is in the public interest. It should not be designed to promote the interests of the lawyers in private practice over those of all other lawyers.

The Government do not intend that the professional bodies should have to apply the same regulations in every respect to employed advocates as those which they apply to advocates in private practice. Clearly, they should be allowed to provide for the differences between them. It would not be appropriate, for example, for employed barristers to have to work from Chambers, as barristers in private practice have to do. But employed advocates should not be prevented by their employed status from exercising their rights of audience. Amendment No. 70 is designed to stop this abuse.

I appreciate that some noble Lords are concerned that the independence of employed lawyers cannot be guaranteed. But, like all other advocates, they will be subject to the duties in Clause 37 of this Bill, which are put on a statutory basis for the first time. These are the duty to the court to act with independence in the interests of justice and the duty to obey rules of conduct. These duties override any other obligations that the employed lawyer may have, including those to his employer.

I do not accept that an experienced advocate loses his independence of mind just because he receives a salary rather than a brief fee any more, I might add, than the noble and learned Lord, Lord Ackner, lost his independence of mind--we see that he has not--on relinquishing, I am sure, abundant brief fees for a judicial salary.

As your Lordships will have noticed, there are some drafting differences between Amendment No. 70 and the original Clause 31. They are designed to clarify the clause in two ways: first, to make clear that Amendment No. 70 applies to all employed lawyers and not solely to those employed principally as advocates; and, secondly, to ensure that the clause is not interpreted as enabling an employed advocate to offer his or her services direct to the public or to clients of his or her employers, as distinct from the employers themselves. It is not my intention to authorise that development by means of Amendment No. 70.

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Failure to re-insert this clause in the Bill would strike at the heart of the Government's proposals on rights of audience. It would leave in place the restrictions which have been put, quite unjustifiably, on employed lawyers. The time for restrictive practices of this kind has long gone. Amendments Nos. 71, 72, 76 and 77 are consequential upon the insertion of this new clause.

I turn to Amendments Nos. 73 to 75 which concern employees of the Legal Services Commission. Clause 33 invalidates any rule of conduct that would prevent advocates or litigators employed by the commission from providing their services to members of the public purely on account of their employed status. Amendment No. 73 extends Clause 33 to cover, in addition to employees of the commission, employees of,

    "any body established and maintained by the Legal Services Commission"

under its powers in Clauses 7(3)(d), 14(20) and 15(3)(d). Amendment No. 75 enables barristers employed by the commission, or bodies established and maintained by it, to provide services directly to the public without the need to receive instructions through a solicitor. Amendment No. 74 is a minor drafting change to clarify the clause.

The purpose of the final amendment in this group, Amendment No. 78, is to enable a barrister employed in a solicitor's firm to provide legal services, including advocacy, direct to his or her employer's clients in the same way as an employed solicitor may. I said at Committee stage in this House that the Government would table an amendment to this effect. At present, barristers employed by firms of solicitors are deemed to be "non-practising". This means that they may offer limited legal services to members of the public but they have no rights of audience in any court under the Bar's rules, no matter how well qualified they are or how many years they may have spent previously as barristers in private practice.

The Government regard that as a restriction that cannot be tolerated. A barrister who would have full rights of audience if he were in private practice should have full rights of audience if he works for a solicitor. He should be able to offer his services as an advocate in the same way as a solicitor advocate employed in the same firm. Barristers employed by solicitors will continue to be regulated by the Bar Council. It will be the responsibility of the Bar Council and the Law Society to ensure that the rules concerning these barristers, such as the disciplinary jurisdiction, do not conflict. I do not believe that this will cause any difficulties in practice.

This is an important group of amendments which is at the very core of the Government's policy on rights of audience. I hope that the noble and learned Lord, who has not gained support for his Amendment No. 70A around the Chamber, will agree to withdraw it.

10.30 p.m.

Lord Ackner: My Lords, it is no surprise to me that the Bar and Bar Council have not supported the amendment. To have done so would have given

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immediate hostage to fortune, because it would have been said, as did the noble and learned Lord, that these restrictions

    "are 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".--[Official Report, 26/1/99; col. 997.]

For that reason, I drew the attention of the House to the views of the noble and learned Lord of Appeal in Ordinary, Lord Steyn. I drew the House's attention to the view of Professor Zander and the views of the Benson Commission. None of those fall within the trade union attack and accordingly show the independent source of the report.

I do not propose to take up more time of the House. I am grateful for having been listened to with such tolerance. But I submit that the strength of the views I have quoted fully justify the amendment I have proposed, although taking a realistic view I see no purpose in moving the amendment to a Division of the House. Therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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