UK Law Articles
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The Times
November 25
Frances Gibb on a new scheme to improve access to lawyers and,
below, Hilary
Heilbron, QC, on the thinking behind it
Going straight to the Bar
People will no longer have to pay a solicitor before they brief a barrister under a ground-breaking scheme launched last week. The Bar Council pilot enables advice bureaux, law centres and Shelter, the housing charity, to instruct barristers directly, thus saving people the cost of paying first for a solicitor.
The initiative dismantles one of the last restrictive practices of the legal profession, which requires members of the public to use a solicitor to instruct a barrister.
Under the 12-month project, seven advice agencies - including Shelter and the Citizens Advice Bureaux - will join in partnership with 18 sets of chambers. If successful, the scheme is likely to be seen as a blueprint for the Government's proposed community legal service which envisages a key role for the advice sector in the delivery of legal services.
The Bar already allows other professions to brief barristers directly. Now it has amended its rules so that advice workers can refer cases, both legally aided and private, without the need to go to a solicitor first.
The Lord Chancellor, Lord Irvine of Lairg, has welcomed the project: "It is no longer good enough for the legal profession to carry on doing the same old things in the same old ways, regardless of the expense to the taxpayer or the privately paying client," he says. "People understandably wonder whether it is really always necessary to instruct a solicitor when they want advice from a barrister and whether this is not just another way of ensuring that, whatever else happens, the lawyers continue to make money."
Dave McNeil, spokesman for the Law Society, says the society was not opposed: "As long as cases are properly prepared, we cannot see any problem. After all, we are pressing to break down the Bar's monopoly of advocacy in the Crown Courts so we cannot really object to this."
Choice, flexibility and not a lot to pay
Legal advice agencies such as the Citizens Advice Bureaux play an invaluable role in the provision of legal services. They are the first port of call for millions of people affected by matters with legal implications. They provide easily accessible advice and sympathetic understanding to those unclear about their rights and responsibilities. Much of their work does not involve great legal knowledge, but this is changing.
The advice agencies' role in providing legal services is to be extended by this Government as part of its community legal service programme. Traditionally, such agencies have concentrated on areas such as welfare benefits, housing, employments and debt. But it is likely that their services will in future be used for a wider spread of legal problems.
Under a Legal Aid Board pilot scheme now under way, non-solicitor agencies - those without qualified legal staff - have been franchised by the board so that they receive funds from the board for specified areas of work. This is part of what the Lord Chancellor recently described as the "refocusing of the legal aid scheme". Fast-track hearings as proposed by Lord Woolf, Master of the Rolls, are likely to provide a further impetus to a wider range of services from advice agencies.
At present, where qualified legal advice or professional advocacy is needed, the arrangements are cumbersome both for agencies and clients. If the matter is beyond the legal competence or experience of the advice centre, options are currently limited. Lawyers - both barristers and solicitors - do give considerable help free of charge, but this cannot cope with the potential volume.
Essentially, once a matter needs professional legal help, it has to be sent to a solicitor, irrespective of whether it is complicated or not. The individual has to repeat his problem to someone else before, if appropriate, a barrister can be instructed. Often the agency is fully familiar with the facts but needs an expert legal opinion or a professional advocate to represent the individual in court or before a tribunal.
To tackle this problem, the Bar Council has agreed in principle that barristers may be instructed directly by advice agencies in appropriate cases. The client and agency will have a much wider choice of lawyer and greater flexibility in how to handle a case. Costs will also be reduced, not least because barristers' charges tend to be competitive. Many cases will still be referred to solicitors, but there is considerable scope for an increasing number of referrals directly to barristers in relatively simple cases.
The pilot scheme is a first step. It will be closely monitored, and extended if successful. Guidelines have been prepared for both the agencies and barristers. Advance information on the barrister's fees will be given so that clients can budget their costs. The service provided by the advice agencies will remain free.
To ensure appropriate standards, all the agencies involved are already franchised by the Legal Aid Board under the first wave of non-solicitor agency franchising. The second stage is to extend the scheme to representation in the lower courts and tribunals. This is farther-reaching, but just as compelling in its potential to fulfil an unmet need.
The initiative will enable legal aid resources allocated to advice agencies to be more effectively targeted, and in time, increased. It will also enable those above the legal-aid threshold, "middle-income Britain", to acquire the services of a lawyer at a price they can afford.
- The author is chairman of the Bar Council working party on direct referral to legal advice agencies.
