Law: Lord Irvine says the Bar's open
The Lord Chancellor's reforms promise upheaval but equality for the profession
Friday 26 June 1998
First it was the furore over the level of QCs' fees which led to an inquiry before five law lords in the House of Lords last week. Then the questions asked in the House of Commons by MP and solicitor Andrew Dismore on the propriety of Lord Neill QC being offered (and declining) the brief of Dame Shirley Porter in the appeal in the Westminster Council gerrymandering case. Barristers have never been so much on the defensive - and for their own cause.
But there is a greater threat to the Bar and its future. At present, barristers have a near monopoly to appear in cases heard in the higher courts in England and Wales. But all this will change if the reforms proposed by the Lord Chancellor, Lord Irvine of Lairg QC, in his consultation paper on the reform of rights of audience, are given the go-ahead.
In short, under the consultation paper published yesterday entitled Rights of Audience and Rights to Conduct Litigation in England & Wales: The Way Ahead, the Government's aims are to ensure that all qualified barristers and solicitors, including lawyers, can appear in the higher courts, provided that they have satisfied the appropriate criteria, and also to simplify the approval process for those extended rights of audience.
At present, 90 per cent of 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 (CPS), local authorities or in business. Only barristers in private practice and a few solicitor-advocates are allowed in.
As an indication of the possible impact of the proposed changes, there are over 71,000 practising solicitors in England and Wales, and 624 solicitor- advocates (about 90 of whom are in the CPS), and about 9,000 barristers in private practice.
The fear for the Bar is that competition in the courts will be overwhelming, and the possible result will be an exodus from law firms and the CPS.
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."
These radical proposals are not entirely unexpected. Behind the shake- up is the underlying message that both the Bar and solicitors face an unprecedented period of upheaval, not only in how the profession is paid from the public purse, but also in how legal services are delivered generally.
Geoff Hoon, parliamentary secretary at the Lord Chancellor's Department has already reinforced the Government line when he said that the Government's approach to legal reform is not `Will this harm the Bar?' but `Will it help more people?'.
But as with most things legal, the devil is in the detail. Following the consultation period, legislation will be needed to amend current statutes and establish new bodies to deal with the changes, including a Legal Services Consultative Panel, which will replace the current Advisory Committee on Legal Education and Conduct.
Perhaps the most interesting proposal in the paper is that 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 Lord Chief Justice, the Master of the Rules, the President of the Family Division and the Vice-Chancellor". This proposal seems to be in line with the view that if Lord Irvine is to get his reforms through, he will need to win the support of the judges.
In case the profession feels that their interests are not being taken account of, the Lord Chancellor has stressed that although it is important that opening up rights of audience has the support of the profession and the judiciary, "liberalisation is in the public interest".
But he has confirmed that he wishes to proceed by agreement with the professions. For any in the profession (and other interested parties) who feel that the LCD has not been sufficiently "open" about consultation on the proposals, they can access the consultation paper and contact the Lord Chancellor at the appropriately titled address on the Internet: http://www.open.gov.uk/lcd/index.htm.
The consultation period will end on 14 September 1998.
But What Do the Professionals Think?
Mark Humphries, solicitor advocate and partner at City law firm Linklaters & Paines
"This is an extremely positive step. At Linklaters and similar firms, this is what we anticipated about a decade ago and have been planning for. The major law firms have vast resources of solicitors who until now have been thwarted in their attempts to provide a full service to their clients. The consultation paper suggests that within a short time, it will be possible to offer a fully integrated litigation and advocacy service to clients, that is both beneficial to clients and to lawyers."
Barbara Mills, Director of Public Prosecutions
"I am extremely pleased with this announcement not only for the CPS but for all employed lawyers. We have been fighting for rights of audience for a very long time now. I am delighted to see that finally we will see CPS solicitors and barristers in the Crown Court. It is a great opportunity for the CPS, creating greater choice and competition in Crown Court advocacy."
Vicki Chapman, head of policy at the Legal Action Group
"This is excellent - if long overdue - news for consumers for two reasons: firstly, in many cases, it will be more appropriate for a solicitor who knows the case in detail to present it rather than handing it over to someone who may only see it the night before it goes to court. And the consumer will not be paying for two people. But this should not be seen as a backdoor way of cutting funds - where a specialist advocate is needed, legal aid should still be available.
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