Draft Access to Justice Act 1999 (Bar Practising Certificates) Order 2001

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Mr. John Burnett (Torridge and West Devon): I join the Minister and the hon. Member for Surrey Heath (Mr. Hawkins) in welcoming you to the Chair, Mr. Butterfill. I have had the privilege of serving under your sage Chairmanship on many occasions.

I should declare an interest. I am a solicitor, but not a practising one. I have some insight through being close to, but not part of, the Bar. I might have another interest to disclose. My son-in-law is a young member of the Bar. If that is a declarable interest, I happily declare it. The Liberal Democrat party do not oppose the order.

Personally, I am a strong supporter of the independent Bar. It is important, adding to the checks and balances of the judicial system. Of course, to a large extent, the members of our judiciary, who are among the finest in the world, come largely from the ranks of the independent Bar. What I want to know from the Minister is not necessarily part of his brief.

The Lord Chancellor is presumably the ultimate authority for the barrister's profession. The Minister said that the money from practising certificates goes, among other things, to raising and maintaining the standards of the Bar. I am a strong supporter of the Bar, and I want that profession to be open to all individuals with the right qualifications, and not just to those whose relations can afford to subsidise them over the initial years, which are difficult for young barristers. I do not know what impact the cost of the practising certificates will have on junior members of the Bar, but that is an important consideration. Will steps be taken to lessen the burden on younger members of the Bar, in order to encourage people from all walks of life to enter that great profession?

My next point arose during discussions on the Access to Justice Bill. If I remember rightly, it arose especially when we were debating clauses 46 and 47. Nothing in the order, and nothing that the Lord Chancellor does in future, should inhibit the Bar from using its money and its considerable influence to oppose, where necessary, Government policy on legal affairs matters.

Having made those two points I look forward to hearing from the Minister. As I said earlier, we support the regulations.

4.46 pm

Mr. Denzil Davies (Llanelli): I, too, declare an interest, as a member of the Bar who pays a subscription. I also agree with what has been said. I would not wish to disagree with the hon. Member for Surrey Heath, who has been a member of that august body, the Bar Council. As I understand it, practising certificates are designed to get as much money as possible into the bureaucracy of the Bar Council. That may be a good bureaucracy, and it may do good things. However, I understand that the certificates' purpose is to ensure that barristers pay their subscriptions to their trade union.

I also urge the Minister to consider the plight of junior barristers, who do not make much money. They spend their time mainly in the magistrates courts, where the fees are not large. I am sure that the Minister understands that, and I hope that he will seek to establish a level of payment commensurate with the difficult position in which many junior barristers find themselves.

Paragraph 2 lists four items on which money can be spent. The second item intrigued me. Proposed sub-paragraph (iii) of section 46(2)(b) of the Access to Justice Act 1999 states that fees may be raised for the purpose of

    the provision by barristers and those wishing to become barristers of free legal services to the public.

Does that refer to the free representation unit, or does it go wider than that? It could go very wide and cost a lot of money. I am not saying that there is anything wrong with the provision, and I appreciate that it is a matter for the Bar Council, but will the Minister tell us about the thinking behind it?

Under proposed sub-paragraph (iv), money can be spent on

    the promotion of the protection by law of human rights.

Presumably, the sub-paragraph refers to those rights enshrined under the European convention on human rights. However, if money is spent, there must be certainty as to what it is spent on. As a pedantic member of the Bar, I ask whether there is any definition of ``fundamental freedoms.'' I do not want to engage in any philosophical or metaphysical debate about such freedoms—no doubt people's views differ—but money is being spent. We all understand what is meant by ``human rights'', but I am not sure that I understand what is meant by ``fundamental freedoms.'' They who spend the money raised should have some idea that they are spending it within the ambit of proposed sub-paragraph (v).

Having asked those few questions, I, too, welcome and endorse the order.

4.49 pm

Mr. Lock: I shall respond briefly to the points raised by members of the Committee.

I welcome the support of the hon. Member for Surrey Heath. Regarding his conversation with my hon. and learned Friend the Member for Medway, I am not prepared to convict my hon. and learned Friend of opposition on hearsay evidence.

The hon. Gentleman asked about the timetable. I am pleased to be able to tell him that the notices of subscription rates for the current year—the Bar Council works to a calendar year from 1 January to 31 December—have already been sent out. The rates include both practising certificate sums and voluntary sums and will take effect on 31 January, when sums that are classed as voluntary will become compulsory. Barristers will be advised to pay eleven twelfths of those sums. I understand that the Bar Council has said that it will not raise money through subscriptions for the current year for any purposes other than those set out in the Access to Justice Act, as amended by the order.

The hon. Member for Torridge and West Devon (Mr. Burnett) asked about the position of younger members of the Bar. Whereas a fee of £645 is sought from a Queen's Counsel, barristers in their first four years of practice can knock off the ``6'' and pay only £45—an appropriate level for those at the outset of their careers. From the fifth to the seventh years, a sum of £140 will apply, and it will continue to rise thereafter.

The second matter that the hon. Member for Torridge and West Devon raised concerned whether it is right for the Bar Council to be prevented from opposing Government policy on legal affairs when it considers it appropriate to do so. The order deals with fees that the Bar Council is entitled to raise compulsorily. Nothing prevents it from spending money from its other sources of income or from levying trade union-style voluntary subscriptions from its members for other purposes. Where a body is both a regulator and a trade union, it is in the public interest that its regulatory activity should be paid for by all its members. However, when it takes a trade union stance, it must be subject to the same rules as any trade union and must persuade its members that that stance is correct. For example, it would not be right for barristers who supported the Government to find themselves obliged to pay part of their practising certificate money to a body that was using their money to campaign directly against their beliefs. That is the purpose of the distinction.

The Government are confident that, in practice, the Bar Council will have ample alternative resources and/or the ability to raise voluntary subscriptions to undertake whatever lobbying work it proposes. Given the wide range of categories in the order—one of which is participation in the legislative process—the trade union element, as it might be described, is of limited compass.

Mr. Burnett: As usual, the Minister is giving thorough answers. Perhaps the answer to my question will become clearer when he adverts to the points made by the right hon. Member for Llanelli (Mr. Davies). If, in its wisdom, the General Council of the Bar decided that the Government were promoting something bordering on an attack on fundamental freedoms, the money could be used to address that.

Mr. Lock: All I can say to the hon. Gentleman is that the Bar Council, as a self-regulating organisation, is regulated by its members, not the Government, so its members determine on what it should spend money. The Government may set the limits of what is permissible, but its members, who are of course elected, regulate it within those limits.

In answer to my right hon. Friend the Member for Llanelli, the outer limits are set by the regulations, which has never been done before. However, we consider it in the public interest to permit the Bar Council to raise money to allow barristers, whether through the free representation unit, the Bar pro bono unit or otherwise, to facilitate free legal services. How that is done is a matter for members of the Bar to decide through their elected representatives, which is also true in respect of the protection of human rights and fundamental freedoms. We can examine the European convention on human rights and the United Nations charters to set proper limits, but how the Bar Council sets its scope within those limits is a matter for its members.

Mr. Denzil Davies: Since money can be spent only for specific purposes—I understand the self-regulatory approach within the limits of the legislation—would the Bar Council set out money spent under each heading annually?

Mr. Lock: The Bar Council has provided us with a budget, setting out its anticipated spending under various headings. When its accounts are audited, its accountants will examine the consistency of purpose between spending and regulations. However, primary maintenance of the regulations will be a matter for members of the Bar.

Question put and agreed to.


    That the Committee has considered the draft Access to Justice Act 1999 (Bar Practising Certificates) Order 2001.

        Committee rose at three minutes to Five o'clock.

The following Members attended the Committee:
Butterfill, Mr. John (Chairman)
Allen, Mr.
Burnett, Mr.
Chaytor, Mr.
Davies, Mr. Denzil
Edwards, Mr.
Hawkins, Mr.
Joyce, Mr.
Kemp, Mr.
Lock, Mr.
McDonnell, Mr.
Prentice, Ms

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