Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Falconer of Thoroton moved Amendment No. 234A:

Page 17, line 31, at end insert--
("( ) The Consultative Panel may, in performance of the duty in subsection (2)(a), seek information from or give advice to any body or person.").

The noble and learned Lord said: The Lord Chancellor intends that the new legal services consultative panel shall be a strong body of undoubted independence. This amendment underpins that intention by emphasising that the panel should have powers to act on its own initiative. New Section 18A(2)(a) of the 1990 Act inserted by Clause 29(2) of the Bill gives the consultative panel the duty of,

This replicates an existing duty of the Lord Chancellor's Advisory Committee on Legal Education and Conduct. This amendment gives the panel the right to,

    "seek information from or give advice to any body or person".

26 Jan 1999 : Column 992

The intention is to ensure that in carrying out its work under new Section 18A(2)(a) the panel should be able to make reasonable requests of others in formulating its recommendations to the Lord Chancellor.

I recognise that particularly with regard to work on legal education, which may continue over time, the panel may wish to give its views to those closely involved, such as the professional bodies and the academic institutions, as work progresses without the need on each occasion to put its views to the Lord Chancellor first. The purpose of the amendment is not to give the panel any power which it would otherwise be denied by the Bill but to emphasise that the panel may,

    "seek information from or give advice to"
others in the course of its agreed work.

I should emphasise from the outset the importance which the Government attach to education. The success of our legal system depends on having lawyers who are properly trained in law and its practice. Legal education must evolve to reflect the developing law and to ensure that the lawyer is fully prepared for practice. And of course legal education and training do not end once the lawyer starts working; continuing professional development is rightly becoming more important for lawyers as well as for other professionals.

The Lord Chancellor will continue to have a role in approving alterations to qualification regulations for barristers, solicitors and other authorised advocates and litigators. But he will have a wider interest in ensuring that lawyers remain of an appropriate standard. In both those areas he will look to the advice of the panel.

I pay tribute to the work on legal education and training carried out by ACLEC. It has produced reports, largely directed to the professional bodies, which have given rise to much debate. There is a creative tension between the academic institutions, the providers of vocational training, the professional bodies and the legal practices. They each have their own view, sometimes a variety of views, of what a legal education should provide. If nothing else, ACLEC has done much in bringing the various players together and encouraging a dialogue between them. ACLEC has organised the Standing Conference on Legal Education, a twice-yearly meeting of the key players when topical issues can be canvassed. I believe that the standing conference has been useful and the Lord Chancellor proposes that the consultative panel and his department should continue to organise something along the current lines of the standing conference. At present consultation is taking place between interested parties on how this might best be done.

As I have said, the consultative panel will have a statutory duty,

    "of assisting in the maintenance and development in the education, training and conduct of persons offering legal services".
This is the same general duty as ACLEC's. The Lord Chancellor intends that the panel should be strong and independent, to use words which were used by the Lord Chief Justice and now have a particular resonance. The Lord Chancellor will agree with the panel its programme of work. This is not with the aim of constraining the advice the panel gives but rather to

26 Jan 1999 : Column 993

ensure that the panel gives its consideration to issues which are important to the Government as well as to those which the panel considers important. A close and co-operative relationship between the Lord Chancellor and the panel will pay dividends. It will give the panel greater focus and, I believe, greater standing.

It would be premature to set out now what issues the panel should at first consider. Indeed, the panel is yet to be appointed. There will be an open competition in due course. But I emphasise that the Lord Chancellor expects the members of the panel to be appointed for their individual expertise and experience rather than because they represent a particular viewpoint or interest.

Finally, let me add that the Lord Chancellor will be under a statutory duty to make available to the panel "appropriate administrative support". This means that the secretarial support which will be provided by the department will be sufficient to meet the panel's need. The panel will also be able through the Lord Chancellor's department to commission research in line with the agreed programme of work. The Lord Chancellor is confident that the panel will be of sufficient strength to let him know if it ever felt that its work is being under-resourced. I beg to move.

11.15 p.m.

Lord Mackay of Clashfern: I wish to take the opportunity warmly to support what the noble and learned Lord said about the work of ACLEC in the field of legal education. It has done a tremendous job. As the noble and learned Lord said, there is a lot of interest with different perspectives in that general area. It has done a great deal to advance the cause of legal education in England and Wales, and I think that it deserves the gratitude of all Members of the Committee.

On Question, amendment agreed to.

[Amendment No. 235 not moved.]

Clause 29, as amended, agreed to.

On Question, Whether Clause 30 shall stand part of the Bill?

Lord Ackner: Clause 30 deals with barristers and solicitors, their rights of audience and their rights to conduct litigation. The clause has been based largely on a consultative paper issued last summer entitled Rights of Audience and Rights to Conduct Litigation in England and Wales: The Way Ahead. That consultation paper was in many respects seriously flawed.

Perhaps I may deal first with the position of solicitors in private practice. Immediately after the Courts and Legal Services Act was passed, the Law Society applied to amend its rules to enable solicitors to apply for full rights of audience in civil or criminal proceedings, or both, in the High Court. The Law Society recognised, as indeed does the Lord Chancellor in his foreword to the paper to which I referred, that its members have to be properly trained to exercise these rights. The Law Society therefore produced various recommendations to ensure that there was proper training.

Its application in respect of solicitors in private practice was approved on 8th December 1993. Accordingly, for nearly the past five years solicitors in

26 Jan 1999 : Column 994

private practice have had rights of audience in the higher courts on the terms proposed by the Law Society. Nowhere in the noble and learned Lord's paper is it suggested that the Law Society's tests or requirements were other than reasonable. However, your Lordships may not know that there was a high failure rate among candidates who took the test. It is understood that in 1995 the pass rate for the civil test was 28 per cent.

The test is not unduly onerous. This is borne out by reports to the Law Society by the advocacy training adviser and chief examiner. Commenting on the low pass rate in the civil test, the chief examiner stated in his 1995 report:

    "The result in the first civil test in June 1994 was promising. Since then there has been an alarming decline in the pass rate, which has fallen from 65 per cent., to 42 per cent., to 28 per cent. It is difficult to diagnose the cause. The reason for the poor results in the civil test is a matter of conjecture. By and large, the candidates are competent in procedural matters but not in other aspects of the test. The expectation may be that they are accustomed to appearing before masters and district judges, but leave it to counsel to decide on other matters; for example, the admissibility of evidence".

Professor Scott, the Law Society's then advocacy training adviser, stated in his 1996 report:

    "In my view, the papers that the test board has produced have provided a fair test on matters that advocates going into the higher courts really ought to know about. The number of candidates failing the test has been a matter for comment. I do not think that any criticism can be directed at the test board in this respect. The candidates taking the test are meant to be experienced in lower court advocacy. Those who failed have in my view deserved to fail. Indeed, often I have been astonished at the ignorance of some candidates, especially those doing poorly in the criminal test".
In his 1996 report, the chief examiner suggested that poor results in the early years of the criminal test may have been the result of candidates not preparing properly but assuming that their practical experience would suffice. He noted that the civil test results continued to be "disappointing"--37.5 per cent. and 50 per cent. passes. He stated that the quality of answers on professional conduct and ethics was very disappointing.

In his consultation paper the noble and learned Lord the Lord Chancellor drew attention to the fact that only 624 solicitors out of more than 70,000 have so far obtained the Law Society's higher court qualification. That is not the fault of the system. Solicitors in private practice are not being "debarred" from appearing in the higher courts.

What is the reason for the slow take-up of the opportunity available to solicitors in private practice to appear in the higher courts? There is some very interesting material on that subject to be found in an article published by the International Journal of the Legal Profession, Volume 4, No. 3, 1997 entitled, "Rights of audience in the higher courts in England and Wales since the 1990 Act--What happened?". That is an article by Professor Zander.

It is apparent from that article, although, strangely enough, it does not figure in the paper of the noble and learned Lord the Lord Chancellor, that in 1994, ACLEC--that is the Lord Chancellor's own committee--commissioned research to try to determine:

    "The extent to which the granting of wider rights of audience is contributing to the development of new or better ways of providing legal services".

26 Jan 1999 : Column 995

The successful bidders for that research were a team from Westminster University, led by Professor John Flood, and from Bristol University, led by Professor Gwyn Davies. That research reveals that even solicitors who have the higher court qualifications may not be using them to any great extent.

Of the many reasons, three important ones were found to be: first, the uncertainties of listing of cases and the resultant loss of time spent hanging around court rooms; next, the insufficiency of the volume of advocacy work; and, thirdly, the fact that barristers were generally cheaper than solicitors for most routine work.

That material in Professor Zander's article completely destroys the suggestion that, although there are solicitor advocates,

    "the vast majority of defendants in the Crown Courts and litigants in the High Court above are forced to employ a barrister in private practice in addition to the solicitor who is already working on the case".
That is referred to in paragraph 2.1 of the Lord Chancellor's paper.

The suggestion that the choice is "limited by out-of-date restrictive practices" is quite inaccurate; and yet it is an essential part of the foundation upon which the noble and learned Lord the Lord Chancellor bases his justification for the abolition of the judges' statutory right to control the exercise of rights of audience in the higher courts.

One other quotation is important. It comes from the Bar Council memorandum and reads as follows:

    "The high failure rate proves the necessity for the maintenance of the standard, not the converse, at least if the public interest is the touchstone. In short, the answer to a high failure rate cannot be to lower the pass mark unless quality standards are to be relegated in importance".
That is precisely what the Lord Chancellor is proposing to do. He is making it clear that all solicitors can expect to have full rights of audience having passed a test which must be less than the current test because that only provided 650-odd advocates. Hence this reference to the quality of service is an illusion.

If we provide solicitors with a significant test, but a fair one, they do not take it--it means work; it means effort. And, even if they do take it, they do not use it, for the reasons I suggested. But if we lower the requirements, then they have no excuse for not taking the test, qualifying with advocacy rights and then being obliged to exercise those rights (which they are not at the moment) by the terms of the block contracts which they will be obliged to face up to.

Clause 30, therefore, is quite unnecessary. The present situation in which the solicitors in private practice have full right to enjoy higher court advocacy is there for the taking, but for the reasons provided to the Lord Chancellor from the research but which he did not see fit to include in his paper, it is the barrister in constant practice who is the obvious person to do the work in the higher courts.

11.30 pm

Lord Falconer of Thoroton: As the noble and learned Lord, Lord Ackner, points out, subsection (2)(a)

26 Jan 1999 : Column 996

of Clause 30 makes the same provision in respect of solicitors' rights of audience that subsection (1) makes in respect of barristers. All solicitors are deemed by that subsection to have full rights of audience in all the courts, but--and it is an important "but"--they may only exercise those rights if they comply with the qualification regulations and rules of conduct imposed by the Law Society. This provision differs from the current provision and, as I understand it, it is that difference to which the noble and learned Lord objects.

At present, all solicitors have rights of audience in the lower courts but unlike barristers they are not deemed to have rights of audience in the higher courts. Instead, solicitors are granted rights of audience in the higher courts only once they have obtained the Law Society's higher courts qualification. If they obtain such a qualification, they are retrospectively deemed to have been granted full rights of audience on admission to the roll of solicitors in accordance with paragraph 3 of Schedule 19 to the Courts and Legal Services Act 1990.

At the heart of the noble and learned Lord's argument was that, because independent persons have said that many of the people who apply to be qualified solicitor-advocates do not pass the exam and therefore cannot be up to it, this clause poses a danger of incompetent people becoming qualified advocates who are solicitors. Speaking for myself, I should have thought that precisely the reverse conclusion was to be drawn from the present situation. The Law Society, which has set its standards, has set an appropriate standard which has weeded out those who are no good. I do not know the basis on which the noble and learned Lord says that the Law Society will immediately lower its standards. Perhaps I may make it plain that neither the Lord Chancellor nor anybody on this side has any desire to see unqualified or incompetent advocates practising in the higher courts or anywhere else.

The position under subsection (2)(a) will still be that solicitors can appear only in the higher courts if they have met the requirements which the Law Society imposes, just as it is at present. Solicitors will be in the same position as barristers: they will have full rights of audience, but whether they can exercise them fully will depend on whether they have complied with the relevant rules. Of course, there will still be a marked distinction in practice. The Bar is essentially a specialist advocacy profession. Most solicitors are not specialist advocates, and those who do not want to appear in the higher courts, and do not obtain the necessary qualifications, will still not be able to appear in the higher courts.

The 1990 Act enabled solicitors to obtain full rights of audience in the higher courts, yet nine years on less than 1 per cent. of the profession--about 730 solicitors out of more than 78,000 in practice--have obtained those rights. In my book, that does not signal a huge appetite by solicitors to become specialist advocates. Nevertheless, the changes made by this Bill should encourage more solicitors to take up the rights of audience to which they are well entitled, if suitably qualified. The expansion of solicitors' rights of audience will not pose a threat to the continued existence of the Bar. I believe that that point underlies the noble and learned Lord's speech. Experience in Australia and

26 Jan 1999 : Column 997

New Zealand, where barristers and solicitors have either formed a merged profession, or where both branches of the legal profession have long had full rights of audience, is clear evidence that there is still plenty of room for specialist advocates to thrive. Of course, there is no reason why solicitors should be precluded from being specialist advocates if they wish, as the long tradition of Scotland proves. Procurators fiscal have acted as solicitor advocates for centuries. Scotland also has a long tradition of specialist solicitor advocates in the sheriff courts.

Subsection (2)(b) of the new Section 31 which will be inserted by Clause 30 simply maintains the status quo by providing that all solicitors are deemed to have been granted rights to conduct litigation under the Courts and Legal Services Act. I do not understand my noble and learned friend to object to that provision.

As I have explained, Clause 30 sets out the basic proposition that all barristers and solicitors have full rights of audience. In itself, that provision would leave in place current restrictions on the exercise of rights of audience which I believe are unwarranted and contrary to the public interest; for example, the current rules of the Bar Council prevent employed lawyers appearing in the higher courts in almost any circumstances. That leads to the extraordinary result that barristers of such distinction as Dame Barbara Mills or David Calvert-Smith, the former DPP and the present DPP, are not able to appear in the higher courts, which strikes one as a very odd result.

The rules of the Law Society similarly impose restrictions on those employed solicitors who have obtained the higher courts advocacy qualifications which do not apply to solicitors in private practice: they may not appear as sole or senior advocate in any substantive case in the higher courts. I may add that these restrictions were effectively forced on the Law Society in 1997, when the Law Society's application for employed solicitors to be granted rights of audience in the higher courts was finally resolved--that is, after six weary years. I believe that we have spoken about this previously.

Those restrictions on employed barristers and solicitors are unjustified. They are the worst kind of restrictive practice--designed simply to protect the work and incomes of privately practising barristers, with no shred of benefit to the public. I do not believe that the professional bodies should be in a position to impose such rules which discriminate against their employed members. Clause 31 therefore provides that employed advocates are not bound by restrictions imposed on their rights of audience which do not also apply to their colleagues in private practice.

I emphasise that that does not mean that employed lawyers should not be subject to regulation--of course, they should be, but that regulation should be in the public interest. It should not be designed to promote the interests of one small, although important, section of the legal profession over those of all other lawyers.

The Government do not intend that the professional bodies shall have to apply the same regulations in every respect to employed advocates as those that they apply

26 Jan 1999 : Column 998

to advocates in private practice. Clearly, they should be allowed to allow for differences between them. For example, it would not be appropriate for employed barristers to have to work from chambers as those in private practice have to. But employed advocates should not be prevented by their employed status from effectively exercising their rights of audience.

I believe that that deals with the kind of things which Clause 30 is designed to deal with. I emphasise that it is not intended to lower the quality of those solicitors who appear as advocates.

Next Section Back to Table of Contents Lords Hansard Home Page