Third Standing Committee on Delegated Legislation
Monday 22 January 2001
[Mr. John Butterfill in the Chair]
Draft Access to Justice Act 1999
(Bar Practising Certificates) Order 2001
The Parliamentary Secretary of State, Lord Chancellor's Department (Mr. David Lock): I beg to move,
That the Committee has considered the draft Access to Justice Act 1999 (Bar Practising Certificates) Order 2001.
I welcome you, Mr. Butterfill, to the chairmanship of what I hope will be reasonably brief proceedings on a draft order that was laid before the House on 15 January.
The order amends section 46(2)(b) of the Access to Justice Act 1999, which currently restricts the purposes for which the General Council of the Bar may raise fees from the issuing of practising certificates to the purposes of
regulation, education and training of barristers and those wishing to become barristers.
The basis for the proposed amendment can be found in section 46(3)(a) of the Act, which provides that the Lord Chancellor may, by order,
amend subsection (2)(b) by adding to the purposes referred to in it such other purposes as the Lord Chancellor considers appropriate.
Section 46 of the 1999 Act was intended by the Government to resolve the unfairness of the current system, whereby some barristers do not contribute to the costs of regulation by the General Council of the Barregulation that benefits all barristers. Section 46(1) enables the General Council to make rules requiring all barristers to hold a practising certificate in order to practise, and requiring them to pay fees for those certificates. The order will extend the purposes for which those fees may be raised.
In contrast to the position of the General Council of the Bar, the Law Society has long had the power, by virtue of section 11 of the Solicitors Act 1974, to require solicitors to hold a practising certificate in order to practise, and to require solicitors to pay fees for those certificates. However, the Law Society has not been restricted as to the nature of the purposes for which it sets those fees. As the Lord Chancellor said during the passage of the Access to Justice Bill,
our belief is that it is right in principle that a professional body should be able to spend money generated from compulsory subscriptions only on certain activities.[Official Report, House of Lords, 14 July 1999; Vol. 604, c. 458.]
Section 47(1) of the Access to Justice Act provides for the Lord Chancellor, by order, to limit the purposes for which fees may be raised by the Law Society to
(a) the purposes of the regulation, education and training of solicitors and those wishing to become solicitors, or
(b) both those purposes and such other purposes as the Lord Chancellor considers appropriate.
Such an order has yet to be made, but the Lord Chancellor is considering an application from the Law Society that seeks to extend the purposes, set out in section 44(1) of the Access to Justice Act, for which it may raise fees in the event of the Lord Chancellor exercising his power to amend section 11(3) of the Solicitors Act, thereby ending the Law Society's ability to raise fees for any purpose whatever. The purposes proposed by the Law Society are similar to those proposed by the General Council of the Bar, but should the Lord Chancellor decide to approve the Law Society's application, he will lay a separate order before the House.
In the context of the order before the Committee and the additional purposes sought by the General Council of the Bar, I draw the Committee's attention to statements made by the Lord Chancellor when debating the implementation of sections 46 and 47 of the Access to Justice Act. He said:
I make it clear to the House that ``practice support'' or practice management and the ``raising and maintenance of standards'' will be covered by compulsory fees for both the Bar and the Law Society. These activities are entirely compatible with the role of a regulatory body and should be included in any order made under any of these amendments.
He also said that
those functions of the Law Society and the Bar Council that we can agree are in the public interest will qualify for funding from compulsory subscriptions.
He then made the important point that the Government
have no wish whatsoever to stifle the many useful functions in the public interest that both bodies currently perform and from which both the public and the Government benefit.
Although the Access to Justice Act 1999 restricts the raising of fees from practising certificates to the amount necessary for the
regulation, education and training of barristers and those wishing to become barristers,
it also includes an important provision, in section 46(3)(a), to extend those purposes to add
such other purposes as the Lord Chancellor considers appropriate.
The Lord Chancellor made it clear during the debates on the implementation of section 46 in the House of Lords on 14 July 1999 that the wording of the Act was so constructed to avoid creating a vague and unalterable category of purposes for which fees might be raised. He also made it clear that he would be prepared to consider extending the purposes listed at section 46(2)(b), saying:
I much prefer agreeing activities that justify compulsory fees on a case-by-case basis to creating a rather vague and problematic category.[Official Report, House of Lords, 14 July 1999; Vol. 604, c. 458-9.]
The General Council of the Bar has recognised the need for a clear statement of purpose in raising compulsory fees from barristers. Following discussions between my officials, the council and the Legal Services Consultative Panel, the council submitted an application to the Lord Chancellor for the approval of rules, made under section 46(1) of the Access to Justice Act, to prohibit barristers from practising unless authorised by a certificate issued by the council. After taking advice from the Legal Services Consultative Panel and the designated judgesthe Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellorthe Lord Chancellor signalled his approval for the new rules to be made.
The General Council of the Bar has also invited the Lord Chancellor to make an order under section 46(3)(a) of the Access to Justice Act, adding further purposes for which fees may be raised to those specified in the Act. They are: the participation by the council in law reform and the legislative process; the provision by barristers, and those wishing to become barristers, of free legal services to the public; the promotion of the protection by law of human rights and fundamental freedoms; and the promotion of relations between the council and bodies representing the members of legal professions in jurisdictions other than England and Wales.
The Lord Chancellor is of the view that all those activities, which are currently undertaken by the General Council of the Bar on the basis of subscriptions from its members, are useful functions, clearly in the public interest, and that provision should be made in the council's new practising certificate rules for them to continue to be undertaken on that basis.
After taking advice from the Legal Services Consultative Panel and the designated judges on the suitability of the proposed additional purposes and, having consulted the General Council of the Bar and parliamentary counsel on the specific wording of the proposed amendment, the Lord Chancellor has signalled his approval to the further purposes sought by the council. The Lord Chancellor is aware that parliamentary approval of the draft order is required under section 46(4)(b) of the Access to Justice Act. In my view, the provisions of the order amending section 46(2)(b) are compatible with the rights set out in the European convention on human rights.
The amendment to add to the purposes for which fees might be raised by the issuing of practising certificates was anticipated during the implementation debates on section 46 in both Houses of Parliament and, as section 46(3) makes specific provision for the exercise of the amending powers, I hope that the Committee will feel able to approve the council's application, which in turn has been approved by the Legal Services Consultative Panel and the designated judges.
Mr. Nick Hawkins (Surrey Heath): I join the Minister's warm welcome to you, Mr. Butterfill, as the Chairman for our proceedings.
The official Opposition do not want to oppose the Government's proposals in the statutory instrument. I have been in touch with the General Council of the Bar, and I ought to declare my interests. I am not only a member of the Bar, but a former member of the general management committee of the Bar Council. I know that those who lead the Bar have, for a long time, felt the inequality of the fact that some members of the Bar choose not to pay their subscriptions but nevertheless have all the benefits of the profession.
It is fair to say that not every member of the Bar, even among those members of it in the House, is enamoured of the proposals. I discussed the matter informally with the hon. and learned Member for Medway (Mr. Marshall-Andrews), a Labour Member. He felt Bar practising certificates to be entirely inappropriate, but expressed his belief that it was unlikely that the Government's business managers would allow him to be appointed to the Committee. So it has proved. The Minister supports the proposals of the Bar Council, and I am happy for it to have the rules that it wants. That is not surprising given that, as I said, I served on the general management committee.
It is important to take this opportunity to pay tribute to the many members of the Bar who give up their time to administration. It is not always a popular task in any profession, but I know, from having served in a relatively junior capacity on Bar Council committees, how much work is done by members of the Bar and officials. I obtained a detailed response from the Bar Council on this matter within 24 hours, which shows the work done by Mr. Niall Morison and his colleagues in the secretariat of the Bar Council.
Roy Amlot QC, the chairman of the Bar, said in a letter to me that he is particularly concerned to ensure that the Bar's work in international relations continues. He says that he assesses that
some 90 per cent. of the work in this area, including by our representative in Brussels, contributes to international law, practice and codes of conduct;
a high international profile through membership of a range of international organisations promotes foreign currency earnings.
The letter mentions contributions
through the Brussels Office established expressly for that purpose; work on the European Union's
Establishment Directive (and previous Directives) and International Practice Rules
and on the
implications of the globalisation of legal services
under the World Trade Organisation and the General Agreement on Tariffs and Trade; and the
hosting of visiting delegations during the Opening of the Legal Year, and of FCO and British Council visitors throughout the year; exchange visits with China . . . and Chinese Young Lawyer Training.
Those are all worthwhile projects. I was involved in some of them when I served on the Bar Council's international practice committee and when I was the chairman of the international committee for the employed Barthe Bar Association for Commerce, Finance and Industry.
The Bar Council undoubtedly does worthwhile work. Having spoken not only to the Bar Council secretariat but to members of the Bar Council, I can see the importance of a practising certificate system. Has the Minister received any hint of when practising certificates will come into force? In his detailed presentation he mentioned the submission that had been made to the Lord Chancellor but did not give a date.
I hope that the Bar will continue its worthwhile work and that free legal workpro bono workby pupil barristers and other members of the Bar, will continue to flourish, as the Bar Council wishes. I have recently been involved in some pro bono work and it is important that members of the Bar, and particularly pupil barristers, should continue the work that has traditionally been done through the excellent free representation unit, as well as other kinds of pro bono work. I wish the order well, and await the Minister's response to the points that I have raised.