Back again to the drawing board
18 July 1995
Rights of audience for employed solicitors is looking rather shaky after the Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC) rejected the extension of such rights.
The "No" comes despite the rebuilding of ACLEC and the replacement of many of those who are opposed to the Law Society/CPS/Government Legal Service proposals on rights of audience for employed solicitors. The Lord Chancellor and the Designated Judges will almost certainly end up making a "No" decision too.
I doubt that the threat by the Law Society that it will seek to judicially review the Designated Judges will cause them any sleepless nights.
No one who reads the parliamentary debates on the Courts and Legal Services Act can doubt that what has happened was very much within the contemplation of Parliament and, indeed, was the outcome that was most hoped for. Unfortunately for the Law Society the courts no longer ignore parliamentary debates.
The reality, of course, was that the Government hoped that it had, in the careful wording of the Courts and Legal Services Act 1990, created a back door route to achieving objectives that it could not get Parliament to sanction directly.
The effort was doomed from the start. The back door created was too small to squeeze the CPS et al through. The Act did not provide the tools required to supervise and manage experimentation with changes which would undoubtedly have fundamental consequences for the delivery of justice.
In a desperate effort to save the day, the Law Society then tried to create the required
machinery using its ability to generate delegated legislation. But the result was thoroughly unconvincing.
The Lord Chancellor, with the agreement of the Designated Judges, rejected an earlier attempt by the advisory committee to point to modest amending legislation which might have met the need.
An all or nothing attitude bedevilled the whole approach of the Law Society to this important issue. The obvious need to limit and regulate the involvement of central and local government employees in sensitive public law cases, evident to all those who have looked at the question, including those who have dissented from the majority ACLEC advice, was resisted by the society almost to the last.
When taken with the Law Society's 'all or nothing' approach, the tragedy of the attempt to squeeze through fundamental changes in the way we operate our criminal and public law systems under a cloak of rights of audience for solicitors is probably that very many useful and desirable changes have, at least for now, been lost. Not least among the casualties are the solicitors employed in Law Centres alongside barristers who are already exempted from the usual constraints for obvious reasons.
Indeed, had it not been for some creative but 'iffy' legal footwork by the Lord Chancellor and Designated Judges, this 'all or nothing' approach would have resulted in a total rejection of its application last time around. These manoeuvres gave the Lord Chancellor and Designated Judges the power to amend the Law Society application at decision time.
The dogged insistence of the society that, subject to a few technical procedures which it had to go through, Parliament, in passing the Courts and Legal Services Act, effectively granted all solicitors rights of audience everywhere is not only untenable, it has resulted in what are largely unusable rights being granted.
The outcome is, regrettably, a vindication of the position of the backwoodspersons in the mould of the new president and vice-president of the Law Society, who complained bitterly that the society "sold" the conveyancing monopoly et al too cheaply in exchange for a crack at the Bar's higher courts monopoly on rights of audience.
Surely it is now time to take stock of the situation and go back to the drawing board.
Patrick Lefevre is Brent Community Law Centre Co-ordinator and one of those who was retired from ACLEC by the Lord Chancellor at the last reconstitution.
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