THE LAW Society has threatened to take legal action against the Lord Chancellor if he denies rights of audience to employed solicitors.
The threat follows the submission of conflicting advice to Lord Mackay by his advisory committee on legal education and conduct (Aclec). A minority of Aclec members approves extended rights of audience and accuses the majority of going against Parliament's will.
Law Society president Charles Elly says the committee's “mishandling” of the society's application, filed more than four years ago, is “little short of a public scandal”.
Director of communications Walter Merricks says: “If people take on advice that we regard to be flawed then they must expect that we would challenge that.”
The majority report, endorsed by nine of the 17-member committee, says the society's application should be rejected, claiming it “would be incompatible with the proper and efficient administration of justice”.
The crux of their argument, which is welcomed by the Bar Council, is that “the employed lawyer will be insufficiently protected against a range of pressures… which could undermine the employed advocate's ability to maintain sufficient independence from his clients”.
But the minority says the majority, led by committee chair Lord Steyn, is acting outside its legal powers and that to refuse the application would “raise issues of fundamental constitutional significance”.
It claims the primary objective of the 1990 Courts and Legal Services Act is to promote extended rights of audience, and it does not believe Aclec was set up to advise on the “wide question of policy”.
The Law Society is likely to submit an amendment to its original application, in line with the minority group's views, which would restrict rights of audience in the Crown Court to either way offences and bar employed solicitors in civil cases from acting in substantive judicial reviews.
Bar Council chair Peter Goldsmith denies the Bar is supporting the majority view through self-interest.
He says the debate is about “ensuring in the more serious criminal cases that there are independent prosecutors to act as an important check on the power of the State and to prevent abuse of that power”.
But a Crown Prosecution Service spokeswoman says the CPS rejects any suggestion that it is not sufficiently independent to carry out the duties of an advocate in the higher court.
It is now up to Lord Mackay and his panel of four designated judges to deliberate on the application. A decision is not expected until the autumn.
If the Law Society decides to take a refusal to judicial review it will be the third time in recent years it has attempted to overturn a decision made by the Lord Chancellor.