Legal Affairs Editor
A long-awaited move to dismantle the most significant remaining restrictive practice enjoyed by barristers is being strongly opposed by Lord Taylor of Gosforth, the Lord Chief Justice.
The Bar is strenuously fighting any inroad into its monopoly over Crown Court work. In the meantime, the Crown Prosecution Service is spending millions of pounds of taxpayers' money each year on hiring outside barristers, regardless of the complexity of cases.
The agreement of Lord Taylor, who presides over the criminal court system, and the three heads of divisions of the civil courts is necessary for the long-standing proposals to allow CPS solicitors to conduct criminal trials without instructing outside counsel, and for other solicitors employed by companies, councils and government departments to present or defend cases in the higher courts.
Solicitors employed in private practice can already qualify to prosecute or defend cases in the Crown Courts and the High Court. But barristers succeeded in campaigning for this to be made so difficult that there are as yet very few solicitor/ advocates - just 381 out of a profession numbering 66,123.
Informed sources say that the Lord Chief Justice is opposed. That would be enough to scupper the change, which Lord Mackay of Clashfern, the Lord Chancellor, is keen to implement. Lord Bingham, the Master of the Rolls who heads the civil courts, is understood to be broadly supportive. It is not yet clear what the final view of the other two division heads will be - but it only needs one of the four senior judges to veto the change.
Lord Taylor's office said yesterday that he could not comment on the proposal at this stage.
The affair is the latest instance of the legal establishment closing ranks against fundamental change to barristers' practices. The Lord Chancellor's Advisory Committee on Legal Education and Conduct (Aclec), charged with making an initial recommendation, decided last June that the extended rights should not be granted - on the casting vote of the chairman and Law Lord, Lord Steyn.
A parallel application by the Director of Public Prosecutions and the Treasury Solicitors' Department for the rights to be granted to CPS-employed barristers has been adjourned pending the decision on solicitors.
Over the last few weeks Lord Ackner, the former Law Lord and a strenuous critic of any move to allow solicitors more rights to argue cases, has sought to pressurise Lord Mackay to rule out the change with two strongly worded questions in the House of Lords, the second complaining about the "delays" in reaching a decision.
Barristers argue that the change should be opposed because lawyers employed by the CPS would not be sufficiently "independent", while some have painted the nightmare scenario of the Bar collapsing because Crown Court work would dry up for junior barristers.
Judging by the take-up of advocacy rights by private practice solicitors, however, the process of CPS lawyers exercising their new rights would be likely to be gradual.
Only 88 private practice solicitors are qualified to handle all proceedings, 218 are qualified for Crown Court work alone and 75 for civil proceedings alone.
Walter Merricks, the Law Society's director of professional and legal policy, said: "The delay must now be becoming an embarrassment. The continuing exclusion of employed solicitors from work which their private practice colleagues are able to do they see as offensive."Reuse content