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Access to Justice Bill [H.L.]

3.38 p.m.

The Lord Chancellor (Lord Irvine of Lairg): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.--(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 31 [Rights of audience: employed advocates]:

Lord Archer of Sandwell moved Amendment No. 237:

Page 19, line 7, at end insert ("as regards his acting as an advocate on behalf of--
(a) his employer, or
(b) where his employer's only or main activity is providing legal services to the public, a client of his employer").

The noble and learned Lord said: In moving this amendment I shall, for the convenience of the Committee, speak also to Amendments Nos. 237A and 239A. Clause 31 deals with rights of employment for employed advocates. Subsection (1) exempts employed advocates from certain professional rules of conduct. For this purpose a person is an employed advocate if he

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is employed by the Crown in any capacity which involves his appearing before courts or,

    "he is otherwise employed in such a capacity",
that is, otherwise than by the Crown.

That wording is very wide. In terms it would mean that if he is in employment in that capacity he may represent anyone, however unconnected with his employers. Presumably that is not the intention. My noble and learned friend may be pleased to hear that this amendment is intended purely to be helpful. The purpose of the amendment is simply to limit the exemption to what everyone believes was always intended. What is proposed is that the measure should be limited to situations in which the advocate represents his employer or, if his employer is in business to assist or represent clients, represents one of his employer's clients. It is a short point. I beg to move.

Lord Goodhart: New section 31A(1) of the Courts and Legal Services Act seems to give rights of audience to any qualified person employed as an advocate without any restriction on whom he can provide those services for. If that is the intention, we believe that it goes too far. Leaving aside the vexed question of employees of the Crown Prosecution Service, we accept that employees should have a right to appear as advocates on behalf of their employers. A qualified advocate employed by a bank should be entitled to act as an advocate on behalf of the bank in litigation to which the bank is a party. However, we do not believe that the bank should be able to offer the advocacy services of its employees to its customers for their litigation. Legal services are not services such as insurance to be marketed by a conglomerate. Efficient, honest and incorruptible legal services are of central importance in democratic societies, as indeed is recognised by Clause 36 of this Bill. Solicitors may, of course, employ someone with advocacy qualifications to provide advocacy for their clients. However, we believe that advocacy services should not be provided as a by-product of some completely different kind of service.

Lord Borrie: This amendment in effect forbids an employed lawyer from acting as an advocate for a client of his employer unless the employer's sole or main activity is providing legal services. In coming to a view on this matter I have been aided by the information given to me by the Bar Association for Commerce, Finance and Industry--a body of which I am not a member, but I, and no doubt other Members of the Committee, have received information from it--which has a membership of about 1,200 barristers who work in industry. It is a respectable body, as is indicated by the fact that its president is the noble and learned Lord, Lord Slynn of Hadley, and one of its vice-presidents is the noble Lord, Lord Alexander of Weedon.

Earlier this month the association sent me a letter in which it points out that the barristers who belong to the association--I shall call them in-house barristers for short--have long suffered from the restrictive rules of the Bar Council which prevent them from exercising rights of audience in the higher courts at all. The Bar Association is represented on the General Council of the

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Bar, but it feels that it is not really represented by that body in, for example, such discussions and debates as we are having today. The in-house lawyers were considerably gratified to note Clauses 31 to 37 of this Bill. In their view the value to industry of those measures will be significant as companies will be able to use their own in-house lawyers for litigation in so far as they choose to do so. They may choose to use an in-house barrister for interlocutory proceedings but not for main proceedings. Or, they made choose to have an in-house lawyer, acting as a junior independent barrister, as Queen's Counsel in the proceedings. But they would have the choice.

Naturally, many firms which employ barristers in-house are concerned to keep down the costs of litigation. They wish to provide legal services to their clients, as well as any services they need for themselves, in a way which suits them best. They want to have that freedom of choice. The Bar Association has provided a number of case studies to illustrate the situation. That is most useful in my view. I have selected just one of them to mention this afternoon. It concerns a company which provides consultancy services in the construction industry. As one would expect, it engages quantity surveyors, engineers, architects and lawyers. Many of its lawyers have dual professional qualifications which firms find of great value. For example, someone may be qualified both in law and one of the engineering professions.

The firm to which I refer, James R Knowles Plc, has 18 barristers on its staff. According to the Bar Council rules, they are technically non-practising barristers because they provide legal services to their employer's clients. At present they are not allowed to act as advocates in court for any of their employer's clients. In other words, at the present time they cannot provide a comprehensive, one-stop service to their clients. They can assist with arbitration and with mediation. However, the land which is marked "keep off" is the land of litigation.

The Committee will appreciate that clients of this consultancy firm may have had a long and established relationship with the firm. As and when a matter may unfortunately give rise to litigation, they do not wish to go outside, as it were, to seek a barrister to represent them in court. After all, this is a specialist area of law. If a barrister is employed by this consultancy firm who has perhaps dual qualifications, he may be--I say only may be--the best choice for the client in terms of advocating his cause in the courts.

Many Members of the Committee, and those who propose this amendment, may be concerned--as was the case when we discussed criminal cases earlier in the Committee stage--about the integrity and the independence of barristers. It is argued that unless they are part of the independent barristers' profession, they may be less independent and show less integrity in some way. Of course the Committee is aware, although we have not yet discussed it in any detail, that Clause 36, which we shall reach shortly, stipulates that any advocate has an overriding obligation to the courts rather than to anyone else.

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In my submission this amendment would damage the growing legitimate business of consultancy firms-- of the kind I have mentioned--of firms of accountants and of well-known and respected insurance companies. The amendment would prevent them providing a service to the client which includes legal services and which includes occasionally, unfortunately, the need to go to litigation. To deprive those companies of being able to provide one of their in-house lawyers as an advocate in court would be to restrict them at such time as one or more, or in the case of insurance companies many, of their clients might need legal assistance in the courts. The rights of subrogation would be involved in such a case. Yet the in-house lawyer, who these days is often very skilled and has possibly been an independent practitioner in the past, would be prevented from assisting in a client's pursuit of his case through the courts. The Bill, unamended, would provide for the development of that service without in any way impairing or impeding the position of the independent Bar, whose members will, as always, be available if that is a client's choice.

Lord Archer of Sandwell: I am grateful to my noble friend for giving way. Does he agree that, as presently drafted, the Bill would permit the employed lawyer to represent anyone who simply came to him or her with any kind of case, totally unrelated to the business of the employer?

Lord Borrie: It may be that the wording of the clause is broader than is desirable. What I am concerned to establish is that it is ultimately very desirable that in-house lawyers should be enabled to provide services for clients--I gave the example of established clients--of the kind of firms I have mentioned. I imagine that it would be very difficult to create some rigid distinction as to, for example, whether a person had been a client for a month, a year or whatever before that was allowed to happen.

The Lord Chancellor: My noble and learned friend Lord Archer seeks to clarify the scope of Clause 31. He describes his point as a short one; however, it is important and has wide ramifications, as the noble Lord, Lord Borrie, demonstrated.

Amendments Nos. 237A and 239A standing in my name are intended to achieve the same purpose of clarifying the scope of Clause 31. Therefore, perhaps the Committee will forgive me if, at the outset of our deliberations, I take what I regard as a useful opportunity to set out the whole of the Government's thinking on these issues. Perhaps I may deal first with the specific amendments.

Clause 31 is designed to abolish, once and for all, the disgraceful restrictive practices which have prevented Crown Prosecutors and other employed lawyers from appearing in the higher courts, regardless of their qualifications.

Clause 30 grants all barristers and solicitors rights of audience, which may, however, only be exercised in accordance with the qualification regulations and rules of conduct of the authorised body concerned. It will

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remain for the Bar Council and the Law Society to regulate the rights of audience of their members. But the Government do not intend that, in regulating their members, they should be able to discriminate against employed barristers and solicitors as they currently do.

Amendment No. 237A replaces the word "circumstances" in subsection (2)(a) with the word "capacity". That subsection provides that employed advocates are not bound by professional rules which limit the courts before which, or proceedings or circumstances in which, a right of audience may be exercised by an employed advocate; this is subject to the proviso in subsection (2)(b) that such rules do not apply, only if the same limitation is not imposed on other members of the body.

My intention is that an employed lawyer should be able to exercise rights of audience in the higher courts if he is otherwise qualified to do so. His employed status should not in itself constitute a barrier. But I think the word "circumstances" may go too far. I do not intend to prevent the professional bodies from making rules governing the exercise of rights of audience which provide differently for the different circumstances of advocates in private practice and employed advocates.

In particular, and here I begin to touch on the issues raised by my noble and learned friend's amendment, I do not wish to prevent the professional bodies from requiring that the generality of employed advocates should not provide their services to the public at large, but should appear in court only on behalf of their employers.

There are, of course, arguments, some of which we have heard from the noble Lord, Lord Borrie, in favour of allowing commercial companies such as insurance companies or management consultants to provide advocacy services to their clients. However, I am not persuaded by those arguments. With the leave of the Committee, I shall explain the Government's position in greater detail in a moment.

So what I propose in Amendment No. 237A is to replace the word "circumstances" with the word "capacity". This is narrower, but will still ensure, for example, that professional rules cannot prevent employed advocates from appearing as the sole or leading advocate in a substantive case. I think that this narrowing achieves what my noble and learned friend Lord Archer intends by his amendment, which is to preserve those professional rules which prevent employed advocates, other than those who are employed in lawyers' offices, from offering their services to the public.

The amendment that I have proposed leaves one problem unresolved, which is the position of those advocates who are employed by lawyers of another category. Solicitors employed by firms of solicitors are treated by the Law Society's rules as solicitors in private practice. They may therefore offer their services to the public and, if they have the necessary qualifications, may exercise full rights of audience.

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In contrast, barristers employed in solicitors' offices, are deemed, by a fiction of the Bar Rules, to be non-practising barristers. They may offer limited legal services to members of the public but have no rights of audience of any kind under the Bar's rules, no matter how well qualified they are, and no matter how many years they may have spent as barristers in private practice.

The Government regard that as a restrictive practice which cannot be tolerated. A barrister who would have full rights of audience if he were in private practice should have full rights of audience if he works for a solicitor, and should be able to offer his services as an advocate to members of the public in the same way as solicitor advocate employed in the same firm.

My intention is, therefore, that lawyers who are employed by other lawyers, such as barristers working in solicitors' offices, should be able to offer advocacy services to members of the public. But I am not confident that Clause 31 achieves that end at present. I shall therefore bring forward an amendment at Report stage in order to make that explicit. On the basis of what I have said, I hope that my noble and learned friend will agree to withdraw his amendment.

The last amendment in this group, Amendment No. 239A, is designed simply to clarify the drafting of Clause 31 without affecting its substance. As I have already explained, the purpose of Clause 31 is to abolish, once and for all, the restrictive practices which have prevented Crown prosecutors and other employed lawyers from appearing in the higher courts, regardless of their qualifications. It does this by inserting into the Courts and Legal Services Act 1990 a new Section 31A, which provides that someone who has been granted a right of audience by an authorised body and is "employed as an advocate" is not bound by certain restrictions which might otherwise prevent him from exercising his rights of audience.

Subsection (3) of the new Section 31A defines when a lawyer with rights of audience is "employed as an advocate". It covers in subsection (3)(a) Crown prosecutors and others in Crown employment and in subsection (3)(b) advocates employed outside government. The existing wording of subsection (3)(b) refers to those who,

    "are otherwise employed in such a capacity",
which seems to me to be potentially confusing, as it is not immediately clear whether it refers to those who are employed by the Crown or those who are employed in a capacity which involves appearing before the courts. The latter is the correct interpretation, it is the invention and I hope that the amendment makes that clear.

The effect of the amendment will be that the two categories of employed advocate are: first, Crown prosecutors; and secondly, other lawyers with rights of audience who are employed in a capacity which involves appearing before the courts. The separate reference to other Crown employment will go, and other government lawyers will be covered by the second category. The definition of "Crown employment" in subsection (4) will be rendered unnecessary and will also disappear. The noble and learned Lord, Lord Simon

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of Glaisdale, is not in his place this afternoon, but I hope that this reduction in unnecessary verbiage would have appealed to him, had he been present.

I commend the amendments standing in my name, Amendments Nos. 237A and 239A. I have explained the amendments but it may be of assistance to the Committee at the outset of our deliberations to be in no doubt as to the state of affairs that the Government intend to bring about as a result of the changes in the law.

I summarise the matter as clearly as I can in relation to each category of lawyer. The intention of the Bill is that solicitors and barristers should, if they wish, be able to acquire and exercise full rights of audience in accordance with the rules of their profession, without any discrimination for or against either category.

The way this is to be achieved is that they will be granted full rights of audience in principle on call to the Bar or admission to the roll of solicitors. But whether they may exercise them, and the circumstances in which they may exercise them, will be governed by the training requirements and rules of conduct of each professional body, subject to the restrictions on those rules which are contained in the Bill.

A solicitor or barrister who has qualified to exercise full rights of audience will retain those rights if he moves from one branch of the profession to the other. He will also retain them if he joins the Crown Prosecution Service, or enters other Crown employment as a government lawyer, or is employed as a lawyer by local government or by the legal services commission. A barrister or solicitor who joins the public service without having previously acquired the ability to exercise full rights of audience--for example, a barrister who has not been able to find pupillage--should be capable of acquiring those rights as an employed lawyer. I look to the professional bodies to find sensible ways of achieving this, but the Bill does not deal with that point directly.

Now I turn to barristers or solicitors in other employment. Obviously a solicitor employed by a firm of solicitors is capable of acquiring full rights of audience already. A barrister employed by such a firm, however, is not able to exercise any rights of audience on behalf of its clients, even if upon joining the firm he is a barrister with many years' experience as an advocate in the higher courts with full rights of audience. He can only acquire rights of audience afresh as a solicitor. This is an obvious restrictive practice inhibiting flexibility and movement within the profession. I am not satisfied that the Bill currently deals with this problem effectively, and I shall therefore be seeking to bring forward a suitable amendment on Report.

I next turn to solicitors or barristers who are employed as lawyers in industry or commerce or with other employers. That was the focus of the attention of the noble Lord, Lord Borrie. If they have met the qualification requirements which apply to other members of their profession, then they too should be able to exercise full rights of audience in the courts on behalf of their employers. I believe that the rightness of

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that was accepted by the noble Lord, Lord Goodhart. This will be made possible as a consequence of the new Section 31A in the 1991 Act, inserted as a result of Clause 31 of the Bill. The new Section 31A outlaws discrimination on the grounds of employee status.

I next address the issue to which the speech of the noble Lord, Lord Borrie, was directed. I have considered the further and important question of whether fully qualified barristers and solicitors employed as advocates in commerce or industry or in other private sector employment should also be able to offer their advocacy services to the public or to the clients of their employers, as distinct from their employers themselves. Arguably the words "or circumstances" in the new Section 31A(2)(a) would outlaw the rules which currently prevent that, since they impose a limitation on those for whom employed advocates may act which does not apply to advocates in private practice.

There are arguments--and the noble Lord, Lord Borrie, canvassed them--for enabling an advocate employed by an insurance company, for example, to represent in court a party whose potential liability is covered by a policy with the company. Other private companies such as management consultants or banks might also like the opportunity to offer advocacy services to their customers when required.

While I do not rule out that option for the future-- I cannot do so since it is always open to the professional bodies to propose changes to their rules--I do not think it would be appropriate for the Bill to strike down the regulations which currently prevent those developments. Advocacy services need to be properly regulated by the professional bodies, especially when they are being offered to the public at large. I do not wish to open up a gap in regulation which might enable an insurance company, bank or supermarket for that matter--or, indeed, what might be called a Virgin law shop--to provide professional legal services to the public, without having to comply with the regulations which govern firms of solicitors or barristers in Chambers or with equivalent regulations to protect the public.

The Government, therefore, do not intend that the Bill should abolish the rules which prevent the provision of advocacy services to the public or to clients by commercial organisations other than firms of lawyers. That will remain a matter for regulation by the professional bodies.

I apologise to the Committee for taking so much time at the outset, but I thought that it would be of assistance if the whole position from the Government's standpoint were made clear at this early stage in our discussions this afternoon. I beg to move.

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