The Courts and Legal Services Act 1990 set out a statutory objective of making new or better ways of providing advocacy and litigation services and offering a wider choice of people to provide them.
To achieve this, an "authorised body" – the Law Society is the only authorised body for solicitors – has the power to determine if a person has shown sufficient education, training and qualifications to be granted rights of audience.
Proposed regulations have to be approved by the Lord Chancellor's Advisory Committee on Legal Education and Conduct (Aclec). Aclec has a statutory duty to exercise its functions so as to further the statutory objective.
Change has been slow. The Law Society submitted draft regulations to Aclec in April 1991 and Aclec published a report on the draft in April 1992. The Higher Courts Qualification Regulations 1992 were approved and the first solicitor-advocates appeared in the higher courts in early 1994.
But strip out the solicitor advocates who have rights of audience in the higher courts only in criminal cases, those who achieved the civil qual ification based on their experience as barristers and advocates qualified in other jurisdictions, and how many born and bred solicitors have qualified as advocates in civil cases in the first two-and-a-half years? The answer is about 20. This is because the regulations have constructed assault course so formidable that it might have been designed to prevent solicitors obtaining the Higher Courts Qualification.
In contrast, there are many barristers appearing as advocates in civil cases. They have no difficulty getting their qualification. So how do barristers find their way through the assault course? The answer is that they do not have to.
The route to rights of audience in the higher courts for barristers is straightforward. After obtaining his law degree, the aspiring barrister has to complete the year-long vocational course and pass the final examination.
He then spends the first six months of his pupillage in the chambers of his pupil master and gains unlimited rights of audience in the higher courts in all cases.
Compare this with the route that has to be taken by the aspiring solicitor-advocate. He gets his law degree, completes the one-year vocational course, passes his final examination and spends the first six months of his training contract with, say, a qualified solicitor-advocate. So far there is no difference other than in the content of the two vocational courses, which could easily be ironed out by introducing options for those wishing to qualify as solicitor-advocates.
But after the first six months, he has to spend another 18 months completing his training contract; practise as a qualified solicitor for three more years; demonstrate a record of substantial advocacy in the lower courts over a two-year period, together with substantial experience of advocacy by others in the higher courts; provide two references from witnesses on his ability as an advocate; obtain a certificate of eligibility; pass a further examination; and complete another compulsory course. Only then does he obtain his rights of audience – at least five years later than his barrister counterpart.
This is disgraceful discrimination against solicitors. Aclec has failed in its statutory duty.
The handful of solicitor-advocates who are leading the way to a new and better way of providing litigation services in civil cases are a tiny minority when, in the public interest, they ought to be the great majority.
The draft civil proceedings rules accompanying the Woolf Report clearly demonstrate the desirability of civil litigators taking responsibility for the entirety of their clients' cases rather than subcontracting advocacy services.
But how can access to justice be improved in this way if those litigators are not permitted to represent their clients in the higher courts?
The Law Society is discussing amendments to the regulations with Aclec. Aclec must end this discrimination immediately. Tinkering with the regulations is not enough. Radical changes are needed – not so much in the interests of future generations of solicitors, but in the interests of clients.