The
Committee consisted of the following
Members:
Chair:
Mr
Graham Brady
†
Brake,
Tom (Carshalton and Wallington)
(LD)
Burden,
Richard (Birmingham, Northfield)
(Lab)
Cairns,
David (Inverclyde)
(Lab)
Corbyn,
Jeremy (Islington North)
(Lab)
†
Djanogly,
Mr Jonathan (Parliamentary Under-Secretary of State for
Justic
e
)
Donaldson,
Mr Jeffrey M. (Lagan Valley)
(DUP)
†
Halfon,
Robert (Harlow)
(Con)
†
Harris,
Mr Tom (Glasgow South)
(Lab)
†
Hemming,
John (Birmingham, Yardley)
(LD)
Henderson,
Gordon (Sittingbourne and Sheppey)
(Con)
†
Laing,
Mrs Eleanor (Epping Forest)
(Con)
†
Reynolds,
Jonathan (Stalybridge and Hyde)
(Lab/Co-op)
†
Rotheram,
Steve (Liverpool, Walton)
(Lab)
†
Slaughter,
Mr Andy (Hammersmith)
(Lab)
†
Stewart,
Rory (Penrith and The Border)
(Con)
Tredinnick,
David (Bosworth)
(Con)
†
Wallace,
Mr Ben (Wyre and Preston North)
(Con)
†
Wright,
Jeremy (Lord Commissioner of Her Majesty's
Treasury)
Mark Oxborough,
Committee Clerk
† attended
the Committee
Seventh
Delegated Legislation
Committee
Thursday
31 March
2011
[Mr
Graham Brady
in the
Chair]
Draft
Legal Services Act 2007 (Approved Regulators) Order
2011
8.55
am
The
Parliamentary Under-Secretary of State for Justice (Mr Jonathan
Djanogly):
I beg to
move,
That
the Committee has considered the draft Legal Services Act 2007
(Approved Regulators) Order
2011.
Good
morning, Mr Brady. It is a pleasure to serve under your chairmanship
this morning. The power to make this order is paragraph 17(1) of
schedule 4 to the Legal Services Act 2007. The order seeks to designate
the Institute of Legal Executives so that it can allow its members to
conduct litigation, and regulate them in doing so.
In practice,
the extent to which ILEX can deploy this right will be limited by its
own regulatory framework, which will mean that the only ILEX members
who can conduct litigation if the order is made will be associate
prosecutors employed by the Crown Prosecution
Service.
The
Legal Services Act classifies the conduct of litigation as a reserved
legal activity which can be carried out only by a person who is either
“authorised” or “exempted” by the Act. At
present, associate prosecutors are exempted to carry out specific
litigation work under statutory designation by the Director of Public
Prosecutions. However, this designation ends on 1 May this year. If
replacement provisions are not made under this order, associate
prosecutors will not be able to carry out unsupervised litigation work
after that date. This represents a large proportion of the CPS workload
in the magistrates courts, and direct supervision by Crown prosecutors
would have a significant knock-on effect for CPS’s higher court
work. The consequences for the CPS and the wider criminal justice
system would be considerable.
The
forthcoming termination of the DPP’s designation of associate
prosecutors was brought about by concerns expressed during the passage
of the Criminal Justice and Immigration Act 2008 that associate
prosecutors are not independently regulated or subject to a
professional code of conduct. It was intended that arrangements should
be made to bring them within ILEX’s regulatory and professional
framework, since ILEX is already an approved regulator for other
reserved legal
services.
Therefore,
a voluntary arrangement was made between the CPS and ILEX in 2008,
which requires associate prosecutors to become members of ILEX in order
to be designated by the DPP. In practice, therefore, all associate
prosecutors have been subject to regulation by ILEX since that time. In
essence, the order simply places that arrangement on a statutory
footing.
ILEX has
drafted specific rules that will set out the processes by which the
work of associate prosecutors will be integrated into ILEX’s
regulatory regime. Under these rules, associate prosecutors will be
required to
abide by ILEX’s code of conduct and undertake a specified amount
of continuing professional development. In addition, ILEX will review
and assess associate prosecutor training programmes. A memorandum of
understanding has been agreed with the CPS that sets out the working
arrangements for the regulation of associate prosecutors, including the
handling of complaints, ILEX’s information requirements and a
facility for ILEX to carry out its own inspections and
reviews.
Both
ILEX and the Legal Services Board have consulted on ILEX’s
application for designation. The responses were broadly supportive,
including those from other legal services regulators. In making its
recommendation to the Lord Chancellor about this order, the Legal
Services Board has satisfied itself that any issues arising from
consultation have been
addressed.
In
anticipation of the order, ILEX has applied to extend the scope of its
regulatory framework so that it can grant a wider range of litigation
rights to a wider range of its membership. It falls to the Legal
Services Board to determine that application. Clearly, any extension to
the range of ILEX practitioners who can conduct litigation
independently could have a significant impact on the legal services
market. The Legal Services Board has a statutory duty to promote
competition within that market, and I would therefore expect it to
evaluate this potential impact carefully in considering ILEX’s
wider application. I commend this order to the
House.
8.59
am
Mr
Andy Slaughter (Hammersmith) (Lab):
It is a pleasure to be
here under your chairmanship this morning, Mr Brady. You and no doubt
other members of the Committee will be pleased to hear that I do not
intend to detain the Committee long. We are not opposing the order. As
the Minister says, it largely replicates the current position under the
Criminal Justice and Immigration Act 2008 relating to the rights of
audience of associate prosecutors and the restrictions that continue to
be placed on them in respect of the type of work that they can
undertake in the magistrates court. Secondly, ILEX is already an
approved regulator. Its powers of regulation extend into the conduct of
litigation, and that flows from the Legal Services Act 2007, the aim of
which was to liberalise and modernise the regulation of the legal
profession. Those two Acts were excellent pieces of Labour legislation
so it would be churlish of me to criticise them or, indeed, to
criticise the ability of legal executives, who the Minister and I know
undertake a great deal of extremely important work to high standards.
The Minister will probably not agree with me on this, but sometimes one
finds the level of expertise among legal executives as a result of the
work that they do to be higher in practice than that even among
solicitors.
At a time
when we see daily restrictions on access to justice and the
availability of legal services, we want to encourage the intention and
practice of the Legal Services Act in broadening access where possible.
As the order restricts the powers and activities essentially to what is
in place through the voluntary agreements and the powers that elapse
under the 2008 Act, there is little more to be said.
As the
Minister said towards the end of his remarks, there is a proposal to go
far wider and what we are enacting today in the order will allow that
to happen,
although the restriction that will continue among the profession for the
time being will be that which is already in practice.
Concern has
been expressed that in widening the number of
people who have rights of audience and the extent of those rights, the
quality of representation and of justice received, whether in a
magistrates court or elsewhere, should not be interfered with. The
Minister will see in the explanatory memorandum that in response to the
consultation the Lord Chief
Justice
“raised
a concern that any potential future extension of APs’ rights
must be subject to full consultation with the judiciary and other
interested
parties.”
I
would welcome an indication today that if there is any further
determination of applications from ILEX or anyone else, there will be
full consultation to ensure that where rights of audience are likely to
be extended, it is done in the public interest and results in no
diminution in the quality of
representation.
The
Law Society has in the past—not about this case—expressed
strong concerns in relation to that as a general principle. The
president of the Law Society
said:
“We
believe that ILEX members should only be granted the rights to carry
out the proposed activities if they were able to demonstrate that they
meet the same high standards as
solicitors.”
A
member of its criminal law committee has been reported as saying,
rather more trenchantly,
that
“the
eligibility criteria for associate prosecutors, who require no academic
or legal qualifications, gave rise to ‘serious concerns’
for the quality of justice and potential for miscarriages of
justice.”
He
said:
“On
public interest and interest of justice grounds there is no
justification for this—it’s merely a case of introducing
justice on the
cheap”.
While
I would not endorse those comments as they stand—ILEX does an
excellent job in regulating its part of the profession, and in its
other functions, and legal executives do an excellent job—if the
qualification and role of associate prosecutors is extended beyond what
is currently envisaged in the order, that may cause concern among other
members of the judiciary and other parts of the profession. I would
welcome an assurance from the Minister not only that there will be full
consultation but that the Government will give full consideration in
any further application that is made for an extension of rights to
testing stringently the quality of justice provided in the magistrates
courts, which is extremely high and consistent as a rule, and ensuring
that it will not be
affected.
There
are no other points that I wish to raise with the Minister this
morning. This is a sensible proposal that simply clarifies the position
and puts it on a more statutory basis. It may improve the regulatory
system.
9.5
am
John
Hemming (Birmingham, Yardley) (LD):
I have a couple of
questions to put to the Minister about the interplay between regulatory
areas. If legal executives are participating in litigation, they are
similar to solicitors. A firm of solicitors, Davis and Company of
Amersham, who are currently refusing to talk to me, applied for an
injunction to stop Parliament being told about toxic substances in
drinking water on ships. That is contempt of Parliament. Should not the
regulators ensure that those regulated by them do not apply for court
orders that are in contempt of Parliament and have the objective
of keeping Parliament in the dark about serious problems in society?
That is a wider question. With the growing number
of super-injunctions and hyper-injunctions, there is an interesting
question whether the regulator should say, “Those people
regulated by ourselves should not apply for orders to keep Parliament
in the dark.”
There is a
similar question about the interplay between the criminal law and the
regulatory processes. The hon. Member for Harlow and I have concerns
about a case in his constituency which has been dealt with by the Legal
Complaints Service under reference CRO/110536-2009/PJL/PL. The case
relates to some properties that were transferred, potentially
fraudulently. A letter from the Legal Complaints Service to the
complainant
says:
“I
understand that it is your contention that your husband did not sign
these transfers…and that the signatures were forged. As I have
explained previously this is not an issue that we can investigate and
it is a matter which you would need to report to the
Police”.
There
is a complex interlinking issue here. Obviously, for the purposes of
prosecution criminal offences have to be investigated by the police.
There is no question about that. But where an allegation is made to a
regulatory body, be it ILEX, the Solicitors Regulation Authority or
whatever, that something has been fraudulent, should they say,
“We are just not going to look at it because it is an allegation
of fraud?” Those are the two relatively complex questions
applying to ILEX and the other
regulator.
9.7
am
Mr
Djanogly:
As the hon. Member for Hammersmith pointed out,
the order effectively replicates the current position. He was right to
take the opportunity to congratulate ILEX on the quality of its work
and the importance of its place in the wider legal market. On behalf of
the Government, I would like to say that we feel exactly the same. The
hon. Gentleman asked a specific question about widening the rights of
audience. In the broadest sense, let me say that the Government take
the view that maintaining quality and encouraging better quality is
absolutely the right way to go. The process of quality assurance is
being agreed now between members of the legal profession and the
judiciary, and we hope that it will drive up the quality of court
representation.
The
hon. Gentleman asked about the application of those concepts in the
context of the order. The Criminal Justice and Immigration Act 2008
allows associate prosecutors to conduct criminal proceedings in
magistrates courts subject to the limitation that they may not
deal with trials involving any offence punishable by imprisonment.
Those rights will not change as a result of regulation by ILEX. He
asked whether ILEX intended to amend its regulations to allow more
members to conduct litigation and if so, how this would be handled. Yes
it does. In anticipation of the order, ILEX has already submitted an
application to the Legal Services Board to enable it to allow suitably
qualified members to conduct litigation in civil and matrimonial
matters. This would require the amendment only of ILEX’s
regulatory framework, so only the LSB’s approval is required.
However, and appreciating that the hon. Gentleman made a specific point
about that, I will certainly draw the LSB’s attention to all of
the points made in this debate so that it can reflect on them in its
consideration of ILEX’s application.
I will also
write to the LSB to ask it to consider what the appropriate process
might be for consideration of such an application. Whereas the LSB
normally focuses on the effectiveness of the process and the impact on
the regulatory objectives in considering whether to approve a rule
change, I consider that the slightly unusual circumstances of this
application might merit wider consultation and engagement. I can also
confirm that there are no current plans to extend rights to APs. The
Government will consider any such extension carefully to ensure that
the interests of justice are met.
The hon.
Member for Birmingham, Yardley discussed the regulators in a much
broader context than this order, I have to say; but he made a valid
point, which was that regulators should not be able to apply for court
orders that are in contempt of Parliament.
John
Hemming:
The question was whether the regulators should
require that those regulated by them should not act in contempt of
Parliament.
Mr
Djanogly:
This goes to the heart of the Legal Services Act
2007. The regulators are independent of Parliament. The hon. Gentleman
asked a specific question, and if he does not mind I will come back to
him in
writing.
I
think that I have covered all the points, and I commend the order to
the
Committee.
Question
put and agreed
to.
9.11
am
Committee
rose.
