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Mr. Garnier: I do not want to take too long I know that my hon. Friend the Member for Beaconsfield (Mr. Grieve) would like to catch your eye, Mr. O'Brien. It was interesting to listen to the Minister advancing his arguments, especially about Government new clauses 34 and 36. As I said in my intervention, he seemed to do so on the basis of an entirely different experience from that which I have enjoyed. Since being called to the Bar, I have always acted with solicitors as though we were part of a team rather than two opposing members of different armies. I do not understand why the Government feel it necessary to introduce the new clauses. I heard the Minister's explanation, and I think that the Government were slightly peeved that one of the new clauses was deleted in the other place. I understand that the Government must have their way and get their business through, and all the usual arguments that Governments and loyal Oppositions loyal to the constitution, that is employ on such occasions. However, the only logical point at which such arguments can end is that no distinction should be made between the Bar and the solicitors' profession; there should simply be qualified lawyers, entitled to act as courtroom lawyers or office lawyers, or as practitioners in non-contentious business or in contentious business or both. If the Government are trying to achieve that, I wish that they would have the guts to say so, rather than dancing around with rather specious arguments and bogus new clauses. I am an old-fashioned fool, and I daresay that the Minister Mr. Mark Todd (South Derbyshire): You said it. Mr. Garnier: Yes, I did say it, and I meant it. I am worried about what the Government are doing to the law. Perhaps the hon. Member for South Derbyshire (Mr. Todd), smiling away in a deep blue shirt, has touched on a raw nerve. I freely confess that I owe a lot to the Bar and to both sides of the legal profession in doing what I do today. I wish that the Government would be slightly clearer in outlining the end game. Do they see the Bill as the full stop, or as but one stop on the route to another terminus yet to be revealed? They have been extremely unclear in unrolling the legal reform programme and, especially, in presenting clause 33 and the new clauses. I should like the Minister to put his position firmly on the record, and I anticipate with interest his response. I fully accept that he has not been a practising member of the Bar for many years, and that he may have outdated ideas about what goes on at the bar nowadays. I understand his lack of immediate experience of modern law practice; he has had plenty of other interesting avenues to take, such as being a law lecturer, a Member of the European Parliament and a non-practising barrister who happens to be a Member of Parliament. The Minister may be receiving advice only from certain quarters. If he had spent more time discussing matters with practising barristers and solicitors, he might have reached different conclusions, but we shall see. He is entitled to the views that he holds, and I look forward to hearing more from him. In the meantime, I invite members of the Committee to agree with or oppose the Minister's arguments.
4.45 pmMr. Dominic Grieve (Beaconsfield): All we heard from the Minister was a stream of invective against one branch of the legal profession. That was neither constructive nor helpful. I accept that there is scope for considerable change in the general operation of the legal profession. In particular, the distinctions between a barrister and a solicitor, and rights of audience are matters that it is legitimate to review. The Minister argued that such distinctions are not only archaic but were designed merely I stress the word ``merely'' as a device for operating a closed shop, particularly in favour of the Bar. I disagree. If we consider how different practices have evolved, the Minister's comments were historical nonsense. I do not believe that the system was set up to feather the nests of those at the Bar for more than 500 years. Human nature being what it is, I accept that financial advantages were perceived by those who operated a closed shop which, in respect of advocacy in the higher courts, went in favour of the Bar and the two professions split. No one is entirely clear when that split occurred. The Victorians were considerable reformers in many respects and were the first to strike down practices that they considered archaic and were not serving a purpose. Although it went beyond the judiciary, the split has survived because of its perception that considerable advantages were to be gained from having a group of advocates who came from a common professional body to appear before the judiciary in the higher courts. I am talking about the time before county courts came into being. There was a belief and an assurance that, because of the professional standards that were applied, the standard of conduct in front of tribunals and courts would be high. Given the whole issue of access to justice and particularly how the Bar, the Law Society, solicitors and barristers are organised, it is sensible to consider how consistently high standards of probity and conduct in advocacy can be maintained, while removing the archaic elements that undoubtedly exist. The Minister said that the restrictions are unjustifiable, and that they must go. They may be undesirable restrictions, but they are capable of justification. Let us take the Bar as a separate entity. It is significant and, as my hon. and learned Friend the Member for Harborough rightly said, we must consider why there is a distinction between employed barristers and those who practise on their own. The answer is simple. The Bar has always consisted of sole practitioners. We are responsible to and for ourselves and in our duty to the court, the client and no one else. It is true that each set of chambers builds up its own ethos that it wants to maintain, so on the whole a successful set of chambers wants to make sure that its members have a high standard of professionalism and conduct. However, at the end of the day, the buck stops with us as individuals, and we deal as individuals with the judiciary and our clients. That has been a powerful force for maintaining professional standards. We shall leave solicitors out of the picture for the moment. The argument against allowing employed barristers rights of audience has always been that if we were to be employed as barristers, we would cease to be practising members of the Bar. Although we might have the qualifications of a barrister, we would no more do what the central thrust of being a barrister is all about than I conduct myself as a member of the Bar when I am here as a Member of Parliament; that simply happens to be in the background. If we changed that, we would do well to consider the impact that it will undoubtedly have on the way in which advocacy and the administration of justice operate. The Minister made the point that the ethos is rather different for solicitors, and the restrictions have even been historically different. There can be employed solicitor-advocates. I think that it was on Second Reading I was not in Committee this morning to discuss the subject that I said that I am profoundly tranquil about the issue of rights of audience being extended to solicitors in the higher courts. Solicitors can have their own ethos and way of operating, but the Bar is also entitled to its own, otherwise we are logically taken to the question of whether there is any justification at all for the two separate professions. I am willing to discuss that question as my hon. and learned Friend the Member for Harborough said, it must be discussed. On the basis of the proposals on which we may vote or allow through in a short time, it seems to me that the basic justification for the split in the professions will have disappeared. There remains an important distinction, which is between lawyers who are advocates and lawyers who are not. Unless we start to address that issue, I am concerned that the Bill will prove to be a total mish-mash. I think that it was on Second Reading I lose track of the Bill's passage, which may be because I have been too verbose and have intervened too often that I made the point that we need to focus on what advocacy is about and how we achieve good standards of advocacy, be they from employed or self-employed lawyers. If it is the Government's view that the distinction of self-employed and employed lawyer is of absolutely no account, as the Minister's approach to the matter implies, it is high time that we started to focus on a complete restructuring of the legal profession to reflect that. In my view, the only way in which we can sensibly go forward in the long run is to consider some form of fusion that has a distinctive element for advocates. They should come under a distinct professional body, be they solicitor or Bar advocates I think that they will simply be advocates at that stage and a separate code of conduct. We should be thinking of going in that direction. If we do not, in the course of getting rid of what are seen as restrictive practices, we are about to start perpetrating some extraordinary injustices. To pick up on what the Minister said, the rights of direct access do not exist for self-employed barristers except in certain limited cases, and we could not reasonably or realistically have them without completely restructuring of our profession. Without such a change, the support systems, the office accommodation required for secretarial services and the many other aspects of our work would be impossible if there were direct access to the lay client. Mr. Garnier: There would also be a consequential and vast increase in the cost of litigation and other legal services. Mr. Grieve: My hon. and learned Friend pre-empts by seconds what I was about to say. Such a change would result also in a massive increase in the cost of litigation, because the overheads, which are currently extremely low, would start to become a major part of the fee, as they are for solicitors.
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