UK Law Articles
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The Times
June 26 1998
BY FRANCES GIBB LEGAL CORRESPONDENT
THE Lord Chancellor is to scrap the Bar's near-monopoly of work in the higher courts as part of a fresh onslaught on the remaining restrictive practices of the legal profession.
Lord Irvine of Lairg yesterday announced proposals to abolish "antiquated restrictions" that can force people to pay for two lawyers, a solicitor and a barrister, where one would do.
In a second swipe at lawyers' monopolies, he invited comment on whether to remove the monopoly solicitors enjoy in conducting litigation, that is, in preparing cases for trial so that the work could be done by barristers and legal executives.
He made clear that his plans to allow a wider range of lawyers into the higher courts, including Crown prosecutors, heralded a bigger shake-up of legal services this autumn.
The Lord Chancellor said he "expected" there would be a Modernisation of Justice Bill to widen consumer choice and improve the justice system for the people who use the courts. "Change is long overdue," he said. "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."
The shake-up of legal services will include scrapping legal aid for personal injury claims and extending "no-win, no-fee" work (which may now be in the autumn); reforms to cap legal costs; for civil claims; a fast-track for disputes up to £15,000; and opening up courts to all qualified lawyers.
"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," the Lord Chancellor said.
Lord Irvine's plans were last night described as a "fusion" of the two-branch legal profession by the backdoor. They were welcomed by the Law Society but the Bar issued warnings of the dangers of giving the State too great a control over prosecutions.
Lord Irvine's fresh attack on lawyers' restrictive practices comes when they are under siege over legal aid reforms and the inquiry into high legal aid fees.
At his first press conference for a year, Lord Irvine said that all qualified lawyers should be able to act as advocates in all courts, subject to training requirements and rules of conduct imposed by the profession. This will include Crown Prosecution Service lawyers, and those employed by central or local government, or business, who are now excluded from the higher courts.
"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 system," he said. It was bizarre, Lord Irvine added, that Crown prosecutors who prepared criminal cases could not prosecute them in court.
Nor did the Government accept the Bar's claim that prosecutions should not be in the hands of CPS lawyers and that only self-employed lawyers could provide the necessary independence to protect the system. "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 per cent of criminal cases are tried?"
Lord Irvine's remarks and the tone of his consultation paper left no doubt that he intends to finish the job started by his predecessor, Lord Mackay of Clashfern. He plans to take powers enabling him to abolish any lawyers' rule that is anti-competitive or restrictive, saying that "any restrictions which inhibit access to justice have no place in modern Britain".
His consultation paper says that he wishes to secure the profession's co-operation. But if he cannot, he proposes a "backstop" power enabling him, after consulting senior judges, to call in any of the profession's rules and fashion a substitute.
Lord Irvine is also proposing to abolish the complex machinery set up under the Courts and Legal Services Act 1990 to regulate lawyers' rules and instead set up a panel that will not have membership drawn from legal interest groups.
Lord Irvine said that it was right that the "buck should stop" with him as head of judiciary. "I see nothing wrong with myself, as the head of the judiciary, in consultation with the judges, determining - if there's been a failure to agree with the professions - what the outcome must be."
Heather Hallett, QC, Bar Chairman, said barristers were not frightened of competition but would fight to maintain advocacy standards.
Nigel Savage, chief executive of the College of Law, said: "These proposals will remove the barrier to progress raised by the need to accommodate the posturings of both professional bodies, the Bar and the Law Society."
- Lord Irvine was last night declared The Lawyer magazine's Legal Personality of the Year.
