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Lord Chancellor's Department
Press Notice
25 June 1998
LORD CHANCELLOR PUBLISHES CONSULTATION PAPER ON THE REFORM OF RIGHTS OF AUDIENCE
Antiquated restrictions on which lawyers can appear in higher courts have had no place in a modern and fair system of justice, the Lord Chancellor, Lord Irvine, announced today. All qualified barristers and solicitors should have the right to present cases in the higher courts, not just barristers in private practice. This would promote quality, choice and value for money for people who use the courts, he said.
At present, 90% of trained barristers and solicitors are excluded from appearing in the higher courts. This includes nearly all solicitors, as well as lawyers directly employed by Government departments, the Crown Prosecution Service, local authorities or in business. Only barristers in private practice and a few solicitor-advocates are allowed to present cases in the higher courts.
In a consultation paper, Rights of Audience and Rights to Conduct Litigation in England and Wales, published today, the Lord Chancellor says that all qualified barristers and solicitors should be able to act as advocates in the Crown Court, High Court, Court of Appeal or the House of Lords provided they meet any relevant training requirements and that they obey the rules of conduct imposed by their own professional bodies.
Lord Irvine said: "Change is long overdue. The perception has grown that the legal system is dominated by the interests of lawyers, rather than by the need to provide justice for the people. I have one clear aim: the establishment of a modern and fair system which will promote quality and choice for those who need the help of an advocate while, at the same time, providing value for money.
"Antiquated restrictions on which lawyers can appear in the higher courts, which force people to pay for two lawyers in cases where one would do, can have no place in this new system."
The consultation period on the proposals - Rights of Audience and Rights to Conduct Litigation in England and Wales: The Way Ahead - is until 14 September 1998.
Legislation would be required to amend the Courts and Legal Services Act, 1990, which sets out the present rules on providing legal services in England and Wales. The Act has had not proved successful in extending competition or opening up rights of audience, Lord Irvine said. He hoped reform could be introduced with the co-operation of the lawyers' professional bodies. But although it was important that opening up 'rights of audience' had the support of the professions and the judiciary, liberalisation was in the public interest.
The Lord Chancellor could be given the power to abolish any lawyers' professional rule which was held to be anti- competitive or restrictive of rights of audience and if necessary to replace it with a rule drafted by the Lord Chancellor in consultation with the 'designated judges' (the Lord Chief Justice, Master of the Rolls, President of the Family Division and Vice-Chancellor).
There may also be a streamlining of arrangements for approving changes in the rules of the Bar Council and the Law Society and other 'authorised bodies' as set out in the 1990 Act: the Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC) which advises on lawyers' rules would both be abolished and replaced with a smaller Legal Services Consultative Panel.
The Lord Chancellor said: "The reforms on which I am consulting would enable Crown Prosecutors to prosecute in the Crown Court when appropriate. It will probably strike most people as bizarre that they cannot do this already. The Government does not accept the arguments that it is improper, dangerous or unconstitutional for Crown Prosecutors to have such rights. If, as has been claimed, it is wrong in principle for someone to be prosecuted by an employed lawyer, how is it that we tolerate this practice in the magistrates, courts, where over 95% of criminal cases are tried?
"I believe in a strong, independent Bar. I remain confident of the future of the Bar. The best advocates will continue to specialise as barristers, and demand for their services will remain high. The Crown Prosecution Service will continue to be one of the Bar's biggest customers, since the Government does not propose that all prosecutions should be conducted in court by Crown Prosecutors. We would simply be providing an element of flexibility, so that CPS staff could be deployed in the best and most cost-effective way.
"I am also very glad to be proposing the reform of the arrangements put in place by the Courts and Legal Services Act 1990. The Act was well-intentioned, but it has failed in the objective it set of developing new or better ways of providing legal services and a wider choice of those supplying them. The Act has been frustrated by the very mechanisms which it put in place. These have provided too much scope for deadlock, for delay and for constant replays of the same arguments about who should have rights of audience. The Government is now minded to settle these arguments once and for all, and provide a smooth and efficient system for the approval of developments in the provision of legal services in the future."
Note for Editors
SUMMARY
The Government's objectives are: to ensure that barristers and solicitors, including employed lawyers, may, subject to satisfying appropriate criteria, exercise full rights of audience in the higher courts; and to simplify the approval process to ensure expedition and some saving of public funds, while safeguarding the public interest.
Full rights for barristers and solicitors
The Government will legislate to provide that:
on call to the Bar, or on admission to the Roll, barristers and solicitors acquire full rights of audience before all courts, which they may exercise subject to their meeting any additional training requirements imposed by their respective professional bodies and to their compliance with the relevant rules of conduct;
the professional bodies (the Bar Council and the Law Society) may require their members to satisfy additional training criteria before exercising those rights and may prescribe rules of conduct governing the exercise of those rights. They may make different rules for lawyers in private practice and employed lawyers;
any new rules proposed by the professional bodies will be subject to the approval of the Lord Chancellor in consultation with the senior judiciary;
once a barrister or solicitor has gained effective rights of audience before a particular court or courts by satisfying any additional training requirements that apply to her/him, s/he will retain those effective rights even if s/he moves from one branch of the profession to the other, or from employment to private practice or vice versa; and
the Lord Chancellor will have the power to scrutinise the existing rules of the professional bodies, in consultation the senior judiciary, and in the last resort to strike down and replace any rule which unduly limits rights of audience or is anti-competitive.
The Lord Chancellor wishes to proceed by agreement with the professions. He hopes to discuss with the professional bodies and other interested parties what would be appropriate additional training requirements for barristers and solicitors to meet before being allowed to exercise their full rights of audience. /more
The approval process
Alterations to rules of conduct/qualification regulations Those alterations to rules of 'authorised bodies' which now require statutory approval will continue to do so. (These are alterations which are related to the exercise of a right of audience or a right to conduct litigation). However, the complex approval machinery set out in Schedule 4 to the 1990 Act will be simplified, and ACLEC will be abolished and replaced with a more focused and smaller --Legal Services Consultative Panel-'.
applications will be made to the Lord Chancellor;
he will decide whether he and the designated judges require expert independent advice;
if not, he will consult the designated judges (the Lord Chief Justice, Master of the Rolls, President of the Family Division and Vice-Chancellor) and then take his decision;
if expert advice is required, the Lord Chancellor will send the application to the Director General of Fair Trading and the new Legal Services Consultative Panel;
he will have the power to impose a timetable; and once the advice is received, the Lord Chancellor will consult the designated judges and take his decision.
New bodies
There will continue to be provisions for new bodies to be authorised to grant their members the right to appear in prescribed proceedings. These would involve a simplified version of the current procedures:
application to the Lord Chancellor; statutory reference to the new Legal Services Consultative Panel and the DGFT;
consideration by the Lord Chancellor after consultation with the designated judges;
approval by Parliament; and authorisation by Order in Council.
Independent Advice: the Legal Services Consultative Panel
ACLEC will be abolished, and replaced by a Legal Services Consultative Panel. The new Panel will not simply reproduce ACLEC, but will provide a more focused service:
it will have fewer members than ACLEC;
it members will not be appointed as representatives of legal interest groups;
its work and scope will be set by the Lord Chancellor;
it will consider all applications to become an authorised body;
it will consider only those applications for rule changes etc. which are referred to it by the Lord Chancellor; the Lord Chancellor will have the power to impose a strict timetable;
it will consider those legal education issues on which the Lord Chancellor seeks advice.
Rights to conduct litigation
The paper invites comments on whether the Government should legislate to give the Bar Council and the Institute of Legal Executives the power to grant their members rights to conduct litigation. At present the Law Society is the only body authorised under the Courts and Legal Services Act for these purposes.
Transitional provisions
On implementation of the changes to the approval process, any applications (for rule changes or the approval new bodies) then receiving statutory advice would continue as if they had been referred to the new Consultative Panel by the Lord Chancellor. The Lord Chancellor will have the power to make any transitional arrangements that may be necessary by Order, and to make any arrangements that may be necessary for ACLEC's staff, and to dispose of its property.
Territorial scope of the Government's proposals
The proposals in this paper relate to England and Wales only. Scotland and Northern Ireland have separate legal systems and separate legal professions, and are not subject to the relevant provisions of the Courts and Legal Services Act 1990.
Copies of the Government,s paper can be obtained from: Jonathan Creer Room 3.08 Lord Chancellor's Department Selborne House 54-60 Victoria Street London SW1E 6QW Fax:0171-210 0613 Responses should be submitted sent by 14 Sepopen.govtember 1998. The paper is being made available will also be placed on the LCD Internet website at www..uk/lcd (Update: this web site is no longer functioning.)
