What happened to the revolution?
2 June 1996
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11 December 1996
Lord Mackay's Courts and Legal Services Act threw down the gauntlet of higher court competition. Six years, 375 recruits later, John Malpas finds solicitor advocates still out on a limb
IT is now seven years since Lord Mackay first parked his tanks on the judiciary's lawn and threatened a legal services revolution.
A key aim of what became the Courts and Legal Services Act 1990 was the opening up of the higher courts to more competition, and therefore more consumer choice. But the number of solicitor advocates with extended higher court rights presently stands at a paltry 375. That is the equivalent of one solicitor entering the higher courts for each week since Lord Mackay's law reform Green Paper was first published.
It is hardly a revolution.
"The Courts and Legal Services Act is a study of how well-intentioned public policy can be subverted by entrenched vested interests," Labour's legal affairs spokesman Paul Boateng was due tell a conference of Labour Lawyers over the weekend. He promised not to let the same happen to Labour's plans.
Different explanations are offered for the trickle of solicitor advocate applicants, depending on who is asked the question.
"The present situation is a complete disgrace," is the private reaction of one senior City lawyer who has followed developments closely.
"The way in which the Lord Chancellor was pounced upon in the House of Lords will go down as a shameful episode in the history of the profession. The result has been the introduction of immensely complicated machinery for granting rights of audience which has neutered large City firms."
Understandably, the reaction of former Bar Council chair Peter Goldsmith QC, a key figure in the Bar's campaign against many of Mackay's reform plans, is more relaxed.
He says: "Many people did say that few solicitors would want to take up extended rights and perhaps that has been proved. There is a difference in function between most of what the barrister does and most of what the solicitor does. The system grew up as it did because it made sense."
On the face of it the Bar has won its battle with the Law Society over rights of audience hands down. After following the advice of lobbyists and public relations specialists that its initial hysterical reaction to the reforms would not wash with the public, it used public interest arguments to mount a highly effective rearguard against Mackay's plans to end its monopoly. At the very least it bought itself time to prepare for the changes.
But there are two key factors which could yet turn the trickle of solicitor advocates into something more like a flood: the lobbying power of the City and the chance that in-house lawyers may finally be granted extended rights of audience.
From the outset the larger City firms were seen as a major threat to the Bar, which claimed advocacy departments would squeeze the Bar and restrict public choice. Now these firms are beginning to flex their muscles by offering Law Society president Martin Mears the chance to win some influential friends by taking up their cause. They say they are quite capable of training their lawyers to the requisite standards, and claim clients are crying out for a seamless litigation service.
The problem for these firms is the amount of "flying hours" of advocacy experience their solicitors are required to clock up in the courts before they are allowed to take up the society's advocacy course and qualifying exam. For civil advocacy rights, the county courts are the most practical place for solicitors to clock up flying hours.
But county court work does not often come the way of the City firms. They complain they are being unfairly treated and point out that barristers do not have to demonstrate equivalent flying hours before they are let loose on the courts.
Herbert Smith litigation partner Julian Wilson says his firm is committed to giving all 100 members of its litigation department the chance to achieve extended rights. So far eight solicitors have qualified and the firm is taking "every available" opportunity to give younger lawyers flying hours. It has also subscribed to an independent advocacy training course and wants that taken into account for applications. Wilson has met Mears and urged him to take up the City's cause. "We want the Law Society to make an application this year to change the qualifications.
"We want a level playing field. If our young lawyers can demonstrate they have the same degree of qualifications as pupil barristers they should be granted higher court rights of audience. That was the intention of the Act and the present arrangements defeat rather than further its statutory objectives."
To change the qualification, the society will first have to convince the Lord Chancellor's Advisory Committee on Legal Education and Conduct (Aclec) that change is justified. The committee has been the subject of much controversy. In June, when Aclec publicly split over the society's application for extended rights of audience for employed solicitors, the then society president Charles Elly said its "mishandling" of the application, filed more than four years ago, was "little short of a public scandal".
Back in 1990, Mackay was praised for getting his reform proposals through Parliament, given the strength of the judiciary's opposition. But in reality the Act merely put off the rights of audience debate by passing the buck to Aclec.
Aclec's statutory aim is to promote a wider choice of legal services providers "while maintaining the proper and efficient administration of justice".
The second limb of the committee's remit is open to wide interpretation and prompted Aclec to embark on its own inquiry into the justice system before doing anything else.
From the start, Aclec clearly felt its remit meant it had to seriously consider Bar Council claims that extended rights of audience would be bad because they would threaten the Bar. Indeed, it saw the preservation of the Bar as one of its key roles.
"The committee believes the the impact of extended rights of audience for solicitors must be carefully monitored to ensure changes do not happen so quickly as to reduce the Bar's numbers to an unacceptable level," it said in April 1992.
Presumably, any new Law Society application will spark off a similar debate. But Russell Wallman, head of professional policy at Chancery Lane, says a move to make qualification more flexible would be likely.
"We will want the most flexible, least burdensome method possible. One possibility would be for people who have less flying hours to undergo significantly longer training. That would be an alternative rather than an amendment," he says.
Meanwhile, the committee is divided over whether employed solicitors should be granted rights of audience. A decision in favour would have a major impact on the legal profession, and Aclec has been unable to make up its mind.
The Crown Prosecution Service wants to save money by using its lawyers in the Crown Court. It has promised to keep using the Bar, but there are fears its junior ranks will be undermined by such a move.
The split within Aclec could not be more fundamental. Eight of its 17 members accuse the majority, who argue against extended rights, of acting outside the committee's legal powers.
In the minority report issued in June, they said a blanket ban on extended rights for in-house solicitors "would represent an unconditional challenge to the will of Parliament".
Since then the Lord Chancellor and the four designated judges have been mulling over what to do next. The Law Society has threatened a judicial review if a decision goes against it. David Pannick QC, advising the society, wrote an article in The Times last June calling on the Lord Chancellor and the four designated judges to go ahead and grant extended rights to employed lawyers.
"If members of the CPS can prosecute in magistrates courts, and if employed lawyers can argue cases in county courts and industrial tribunals, there should be no insuperable bar to them being able to practise as advocates in a higher court, if they are competent to do so, on individual merit, after they have received adequate training."
war of the wigs
A SOLICITOR who is campaigning for equal court dress has claimed the support of Master of the Rolls Sir Thomas Bingham.
According to John Davis, a sole practitioner in Chalfont St Peter, Bingham was considerably sympathetic to the plight of wigless solicitors in a letter he received from him last year. Bingham reassured him a further decision on the issue would occur "sooner than one might think".
Solicitor advocates feel strongly about the wig issue. Members of the Solicitors Association of Higher Court Advocates recently called for the abolition of wigs, a view which the Lord Chief Justice Lord Taylor has long held.
The letter from Bingham has encouraged Davis, who is furious with the Law Society for not mounting a judicial review against the Lord Chancellor's decision to preserve different court dress for solicitors and barristers.
The criminal lawyer fears that while disparity in dress remains juries may think solicitor advocates are inferior. He asks judges to tell Crown Court juries that the fact he is wigless has no bearing on his abilities as an advocate.
the aclec voice
The lack of solicitor advocates comes as no surprise to former Aclec member Patrick Lefevre.
Lefevre, co-ordinator for Brent Community Law Centre, says he was not the only one on the committee who realised early on a formal extension of audience rights would have little effect if the court system itself was not reformed.
He calls for a Woolf-like inquiry into the criminal court system to ensure trials are better managed so there are less returned briefs and defendants are not passed from lawyer to lawyer depending on availability.
Such an inquiry goes far beyond Aclec's remit and Lefevre was even advised against making claims that an inquiry was needed.
Lefevre, a self-confessed radical, was taken off the committee after Lord Mackay and the four designated judges rejected its first attempt to deal with the Law Society's rights of audience application. The application called for legislative changes to limit the number of Crown Court cases in-house lawyers could prosecute.
He says the committee's first task had been to conduct a detailed inquiry into the court system. He says many agreed the way the Crown Courts were managed needed reform before any formal extension of rights of audience would be effective.
"There was a general view that the system was chaotic, and some felt the reality was that the present system was the main protection for the Bar's monopoly," he adds.
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