COMMENTARY

The Legal Services Consultative Panel

132. The Lord Chancellor's Advisory Committee (ACLEC) was created by section 19 of the Courts and Legal Services Act 1990. ACLEC's replacement, the Legal Services Consultative Panel will differ from ACLEC in a number of ways but will continue to fulfil much of ACLEC's role. The Act makes no provision for the nature or number of the Panel's membership, which will be appointed by the Lord Chancellor.

133. The Panel's general duty will be to provide the Lord Chancellor with any advice he requires about legal services, legal education and related matters. It will have an active role in assisting in the maintenance and development of standards in the education, training and conduct of persons offering legal services. The Panel will be required to draw up its own programme of work on these topics, to be agreed with the Lord Chancellor, and will be able to make recommendations on particular issues when appropriate. The Panel will also carry out a significant role in the system of statutory approvals set out in Schedule 5 (see below), which replaces Schedule 4 in the 1990 Act.

134. This clause also provides that the Panel cannot be sued for defamation in respect of any advice it publishes. This is to ensure that the Panel is able to give frank advice to the Lord Chancellor, and that it need not hesitate to point out, for example, if a body applying for authorised status under the 1990 Act is corrupt or incompetently run, and therefore unsuitable to be designated an authorised body.

Rights of audience and rights to conduct litigation

136. Clause 31: Rights of audience: employed advocates. This clause provides that employed advocates, including both solicitors and barristers, should enjoy the same rights of audience as if they were in private practice. The clause also makes it clear that this applies to the Crown Prosecution Service and other Crown employment as well as to employed advocates in general.

137. Clause 32: Employees of Legal Services Commission. This clause provides that advocates and litigators employed by the Legal Services Commission can provide services to members of the public. Without this clause, they might be prevented from doing so by professional rules.

138. Clause 33: Rights of audience: change of authorised body. This clause provides that an advocate who has been granted and was entitled to exercise a right of audience by one authorised body, such as the Bar Council, should retain that right if he becomes a member of a different authorised body, such as the Law Society. This clause, together with clause 31, establishes the principle that rights of audience should be portable between private practice and employment.

139. Clause 34: Rights to conduct litigation: barristers and legal executives. This clause gives the General Council of the Bar and the Institute of Legal Executives the power to grant their members rights to conduct litigation. There will be no requirement to grant such rights and it would be a matter for the authorised bodies to chose whether and in what form such rights might be granted.

Clause 35/Schedule 5: Authorised bodies: designation and regulations and rules

• authorise bodies to grant rights of audience and rights to conduct litigation;

• approve applications by such authorised bodies to alter their qualification regulations or conduct rules;

• revoke any authorisation of a body to grant rights of audience or rights to conduct litigation.

142. The existing procedures for approving applications by bodies for authority to grant rights of audience and rights to conduct litigation, and for approving applications by such authorised bodies to alter their qualification regulations or conduct rules, are complex. They require an applicant body first to submit its application to the Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC) for preliminary advice. Thereafter it must be submitted to the Lord Chancellor, who must consult the 'designated judges' (the Lord Chief Justice, Master of the Rolls, President of the Family Division and Vice-Chancellor), ACLEC (for formal advice) and the Director-General of Fair Trading, before it can be approved. The Lord Chancellor and each of the designated judges must approve the application before it can succeed.

143. The new procedures will be simpler. They contain no requirement for each of the designated judges to approve an application before it can succeed, although the Lord Chancellor must seek, and have regard to, their advice. An applicant body will first submit its application to the Lord Chancellor. In the case of an application to become an authorised body, the Lord Chancellor must consult the Legal Services Consultative Panel (ACLEC's replacement body, established by Clause 29), the Director-General of Fair Trading (DGFT), and the designated judges. In the case of an application to amend an authorised body's regulations or rules, the Lord Chancellor will decide whether he needs to consult the Panel and/or the DGFT, but he will be required to consult the designated judges.

144. The Lord Chancellor's currently has power to revoke a body's authorisation, but this has not been used since its introduction. At present, if the Lord Chancellor believes there are grounds for revoking authorisation, he must seek ACLEC's advice. ACLEC also have power to advise the Lord Chancellor to revoke authorisation of their own initiative. The Lord Chancellor must then consult the designated judges, each of whom must approve any proposed revocation.

145. The Bill amends the revocation procedure to remove the requirement for each of the designated judges to approve any proposed revocation before an Order can be made, and to refer to the Panel rather than ACLEC. The Lord Chancellor will also be required to obtain the advice of the DGFT. An Order revoking a body's authorisation will continue to be subject to Parliamentary approval.

146. The Schedule will confer on the Lord Chancellor a new power to amend the qualification regulations or rules of conduct of an authorised body by order, if he considers it desirable to do so. He will be required to consult the Panel, the DGFT and the designated judges before doing so; and his order will be subject to Parliamentary approval. This power will enable the Lord Chancellor to change on his own initiative unreasonable or restrictive rules on the part of a professional body.

147. Clause 36: Overriding duties of advocates and litigators. This clause gives statutory force to the existing professional rules which make it clear that the first duty of advocates and litigators is their duty to the Court to act in the interests of justice and to comply with their professional bodies' rules of conduct. Those duties override any other obligation which a person may be under, either to a client or to an employer or to someone else. This reinforces the fact that a barrister, solicitor or other authorised advocate or litigator must refuse to do anything required, either by a client or by an employer, that is not in the interests of justice (eg. suppress evidence). This applies notwithstanding any contractual or other relationship with that client or employer. The purpose of this clause is to protect the independence of all advocates and litigators.

148. Clause 37 and Schedule 6 make minor and consequential amendments. Paragraphs 1 to 3 of the Schedule provide that where an alteration to the Law Society's rules has been approved by the Lord Chancellor under the new procedure which will be inserted into the Courts and Legal Services Act 1990, the alteration concerned needs no further approval under the Solicitors Act 1974. Paragraph 5 gives the Lord Chancellor a new power to impose reasonable time limits on the giving of advice under the 1990 Act; this is in order to avoid the delays which have affected some applications for the approval of rule alterations under the current procedure. The Schedule makes several amendments which are intended to improve and clarify the drafting of the 1990 Act, in particular it redefines 'right of audience' and 'right to conduct litigation' in order to reflect the fact that it is possible to have a right which cannot be exercised.

149. Part III of Schedule 10 makes transitional provisions. It enables the Lord Chancellor by order to make provisions in connection with the abolition of ACLEC. It provides that the existing rules and regulations of the Bar Council and the Law Society are deemed to have been approved, and that all existing barristers and solicitors are deemed to have been granted full rights of audience before all courts on their call or admission to the profession. It preserves for the time being the effect of section 83 of the Supreme Court Act 1983, which enables solicitors who have not obtained the Law Society's higher courts qualifications to exercise certain rights of audience before the Crown Court when it sits in certain areas specified in directions by the Lord Chancellor. It provides that Orders in Council designating other authorised bodies (for example, the Institute of Legal Executives), and any alterations made in the rules of such bodies which have been approved under the current provisions of the Courts and Legal Services Act 1990 will continue to have effect once those provisions have been replaced.