Standing Committee E
Tuesday 11 May 1999
(Afternoon)
[Part I]
[Mr. William O'Brien in the Chair]
Motion made, and Question proposed,
That the remainder of the Bill be considered in the following order: Clauses 33 to 36; Schedule 5; Clauses 37 and 38; Schedule 6; Clauses 39 to 54; Clause 56; Clauses 59 and 60; Schedule 9; Clause 61; Clauses 66 to 69; Schedule 10; Clauses 70 to 82; Clause 85; Clauses 87 and 88; new Clauses; new Schedules; Clause 55; Clause 57; Schedule 7; Clause 58; Schedule 8; Clauses 62 to 65; Clause 83; Schedule 11; Clause 84; Schedule 12; Clause 86.[Mr. Hoon.]
4.30 pm
Mr. Edward Garnier (Harborough): Will the Minister explain whether there is any magic in that order, or is it simply numerical?
The Minister of State, Lord Chancellor's Department (Mr. Geoffrey Hoon): It is not simply numerical it will facilitate the tabling of a large number of amendments. I hope that that will assist Opposition Members, otherwise amendments would have to be tabled on Report. Taking the clauses in a slightly different order will allow Opposition Members maximum time for their consideration.
Question put and agreed to.
Clause 33
Employees of Legal Services Commission
Mr. Hoon: I beg to move amendment No. 187, in page 22, line 36, leave out `31 (as substituted by section 32' and insert `31A (inserted by section (Rights of audience: employed advocates)'.
The Chairman: With this it will be convenient to take Government amendments Nos. 188 to 190.
Government new clause 34 Rights of audience: employed advocates.
Government new clause 36 Barristers employed by solicitors etc.
Mr. Hoon: This important group of amendments concerns rights of audience for employed lawyers. New clause 34 inserts a new section 31A into the Courts and Legal Services Act 1990. The amendments to clauses 33 and 34 are consequential to the insertion of this new clause. New clause 36 concerns the rights of barristers employed in solicitors' firms.
As I explained in relation to clause 32, the Bill will leave intact the principle that lawyers' rights of audience are governed by the rules and regulations imposed by the authorised bodies which grant those rights. However, there are some rules and regulations which are simply undisguised restrictive practices, such as those which prevent employed barristers and solicitors from appearing in the higher courts, simply because of their status as employees.
New clause 34 was originally introduced in another place as clause 31 of the Bill. It was I am disappointed to say defeated by those who clearly believe that discrimination against employed layers can be justified. The Government do not believe that the professional bodies should be free to apply such discriminatory rules, and re-inserting this clause will prevent them from doing so. It provides that rules which limit the rights of audience of employed advocates are not binding on them, if those rules do not also apply to their colleagues in private practice.
The clause will enable Crown prosecutors to prosecute in the Crown court, and all other employed lawyers to appear as advocates in the higher courts even on the most occasional basis provided that they have met the qualification criteria which apply to them. They will remain subject to the rules of conduct and the disciplinary procedures of their professional bodies. Like all other advocates, they will be subject to the duties in clause 37, which are put on a statutory basis for the first time. These are the duty to the court to act with independence in the interests of justice, and the duty to obey rules of conduct. These duties override any other obligation that the employed lawyer may have, including to his employer.
Although we have discussed these issues in debating clause 32, I shall briefly repeat some of the arguments now. The Government's view is that the current situation in which rules prevent qualified advocates from exercising rights of audience simply because they are employed is entirely unacceptable. At present, we are in the absurd position where an employed barrister, however senior, is unable to exercise rights of audience in the higher courts. Even the Director of Public Prosecutions, a barrister of 30 years' standing, lost his rights of audience on the day that he was appointed.
Employed solicitors are scarcely in a better position. The rules of the Law Society impose restrictions on those employed solicitors who have obtained the higher courts advocacy qualifications. That does not apply to solicitors in private practice. An employed solicitor advocate can appear only in the higher courts led by a barrister or, theoretically, by a solicitor advocate, in private practice. These restrictions on employed barristers and solicitors are outrageous and cannot be justified. They are the worst kind of restrictive practice they protect the work and incomes of privately practising barristers and offer no shred of benefit to the public. The Government do not believe that the professional bodies should be in a position to impose rules that discriminate against their employed members.
That does not mean that employed lawyers should not be subject to regulation, but that regulation should be in the public interest. It should not be designed to promote the interest of one small section of the legal profession over those of all other lawyers.
The Government do not intend that the professional bodies should have to apply the same regulations in every respect to employed advocates as those which they apply to advocates in private practice. Clearly, they should be able to allow for the differences between them. It would not be appropriate, for example, for employed barristers to have to work from chambers, as barristers in private practice have to. Employed advocates should not be prevented by their employed status from exercising their rights of audience. This new clause is designed to stop such abuse.
The failure to reinsert this clause from the Bill would strike at the heart of the Government's proposals on rights of audience. It would leave in place the restrictions that have been placed, quite unjustifiably, on employed lawyers. The time for such restrictive practices has long gone. They are redolent of an era when solicitors, let alone employed lawyers, were thought to be not quite gentlemen not quite the sort of people who could be trusted to know how things are done, or which knife to use.
Mr. Garnier: Where did the Minister get those arguments from? They are the most extraordinary arguments; I have never heard them advanced before.
Mr. Hoon: I am reluctant to quote various colleagues who are solicitors, but a number of them made these points to me after our discussions this morning. There has long been hostility towards employed lawyers and, going back still further, hostility from the Bar towards solicitors. I accept that many of those practices have changed in more modern times. The Bill will move us into the 21st century, rather than depending on attitudes and practices that reflect the prejudices of the 19th century.
Mr. Garnier: I do not want to make a meal of it, but if those attitudes do not exist, how can the Government advance arguments based on a false premise?
Mr. Hoon: Some of the attitudes do still exist. They are reflected in the present professional rules that, for example, discriminate against employed lawyers. Those attitudes not only exist, but are embodied in Bar Council rules. They not only have some life, but some effect. That is why we are introducing our proposals.
New clause 36 will allow a barrister who is employed in a firm of solicitors to provide legal services, including full rights of audience, direct to his employer's clients. My noble and learned Friend the Lord Chancellor said in another place that the Government would table an amendment to that effect. At present, solicitors employed by firms of solicitors are treated by the Law Society's rules as being in private practice. They may therefore offer their services to the public and, if they have the necessary qualifications, exercise full rights of audience.
In contrast, barristers employed by firms of solicitors are deemed to be non-practising barristers. This means that they may offer limited legal services to members of the public, but they have no rights of audience in any court 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 believe that such restrictions should no longer 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 he should be able to offer his services as an advocate direct to the public in the same way as a solicitor advocate employed in the same firm.
We could leave it to barristers who wish to work for solicitors to become solicitors, but I do not see that that would be in the interest of those involved or of the Bar itself. I am aware that some younger members of the Bar already see their future in developing closer working relationships as advocates with particular solicitors' firms and they may welcome the possibility of direct employment. These barristers do not necessarily wish to lose their identity as barristers or to sever their relationships with that branch of the profession.
Subsection (1) disapplies certain Bar Council rules that impose a prohibition or limitation on the provision of legal services on barristers employed by solicitors. In future, other bodies, such as patent agents or legal executives, may become authorised litigators. In that event, the clause would also apply to barristers employed by other authorised litigators.
Subsection (2) provides that barristers employed by solicitors can provide legal services directly to the public without the need to receive instructions through a solicitor. That is a limited exception. Other rules that impose the same limitation on the provision of legal services by barristers in private practice will continue to apply, which answers the question that the hon. and learned Member for Harborough (Mr. Garnier) asked this morning.
Barristers employed by solicitors will continue to be regulated by the Bar Council. It will be the responsibility of the Bar Council and the Law Society to ensure that the rules relating to such barristers, such as the disciplinary jurisdiction, do not conflict. I do not believe that that will cause significant difficulties. Legal executives employed by solicitors may be granted rights of audience by the Institute of Legal Executives, but at the same time their principals will be held responsible for their actions under Law Society rules.
Clause 33 makes provision for barristers employed by the Legal Services Commission to exercise legal services on behalf of the public. It is right that that principle should be extended to barristers employed by solicitors' firms.
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