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Lord Mackay of Clashfern: At Second Reading I raised a question about this particular clause. The noble and learned Lord the Lord Chancellor very kindly wrote to me on 12th January, dealing, among other things, with this question. In the time available to him, the noble and learned Lord, Lord Falconer, did not have time to reply to all the questions raised, which is a perfectly normal situation.

However, the point I wanted to be clear about was that the regulations for the qualification of the exercise of the rights of audience by solicitors would not be less stringent than the present regulations which have been adopted in order to secure competence in the exercise of those rights of audience in the higher courts.

In the letter to which I have referred, the noble and learned Lord the Lord Chancellor explained that the clause would grant theoretical rights of audience on admission to the solicitors' Roll, which would be the same as barristers on Call, but that the right to exercise those rights of audience would be dependent on securing the necessary qualification. So far, that seems to reproduce the present position in practice although not quite in theory.

In writing to me, the noble and learned Lord said that, if the Bill was passed--I should say that he said, "once the Bill is passed",--which may be subtly different--


In other words, that is a change in the general system. That would cost something and it is a question of whether that cost is necessarily something that should be undertaken. That is a matter for the Law Society. The letter continues--


    "so that they are ready to take up rights of audience in the higher courts once they start practising, if they wish to do so".
To train to do something that you may or may not wish to do may be wise or it may not. The point I am really anxious about is the next sentence, which states,


    "I also expect that the Law Society will wish to propose changes to the requirements of its higher courts qualifications, in order to encourage more solicitors to take up rights of audience in the higher courts".

What does that mean? How is one going to encourage more solicitors to take up rights of audience in the higher courts, having regard to the history which my noble and learned friend Lord Ackner has described? One way of doing it is to reduce the standard marginally or more than marginally. The noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Falconer, say that they want to have competent

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people. I am not quite clear how changes in the qualification regulations will encourage more solicitors to take up rights of audience unless these changes reduce the threshold or the standard. I should say in fairness to the noble and learned Lord that his letter continues,


    "Having said that, neither the Law Society nor I have any desire to see badly trained or incompetent advocates let loose in the higher courts, and I will ensure that this does not happen".

I entirely accept that last sentiment. "Letting loose" in the higher courts such people obviously would not be a very desirable thing to happen. But I am not very clear in that respect about the relationship between that last sentence and the penultimate sentence that I have read out.

I certainly believe that the research that Professor Flood and his colleagues from Bristol undertook is valuable and I believe that they prophesied that as time went on the number of solicitors who would qualify would increase in any event. I should like a little more clarification on that particular aspect of the matter, because it is quite important.

11.45 p.m.

Lord Hacking: Having taken part in long debates in 1990 during the proceedings on the Courts and Legal Services Bill regarding rights of audience with the noble and learned Lord, Lord Mackay of Clashfern, with my noble and learned friend and, indeed, with the noble and learned Lord, Lord Ackner, I desire to make a brief intervention.

I should like, first, to concentrate on what the noble and learned Lord, Lord Mackay, said. He questioned how, other than dropping standards, more solicitors could be encouraged to take up higher court advocacy. It does not have to involve the dropping of standards. The noble and learned Lord referred to difficulties that, apparently, some solicitor candidates had in getting higher court advocacy certificates on matters of evidence. The experience of my side of the profession--and I believe that it is so for the other side of the profession--is that the training can be greatly improved to deal with the situation. There are now many more training sessions available, not only to those who aspire to be either a barrister or a solicitor, but also to those who have now qualified. There is a continuing training requirement on my side of the profession and I believe that to be so on the side of the Bar. Therefore, the means of further encouraging members of my profession to take the higher court advocacy is to assist them in the training so that they are better prepared. When they pass that test they will become better and more proficient advocates.

However, the central point--and this concerns all of those who need to resort to the courts--is to have able and sufficient advocates. The fact that we have a bifurcated profession is a historical accident that goes back to the end of the 18th century and the beginning of the 19th century: how the Inns of Chancery collapsed and the Inns of Court managed to keep going. It was the Inns of Court which had the rights of audience in the King's Court and the Inns of Chancery had the rights of

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audience in the courts of equity. No one would have designed a profession bifurcated in the way that now applies to our profession. Anything that gives an equal opportunity to lawyers of either side of the profession to practise their skills to the top of that profession should be endorsed by anyone who uses those courts. I say that for the one very simple reason that we want the best of advocates to appear for us in the courts.

What I find pleasing in the now re-written Sections 31 to 33 of the Courts and Legal Services Act is the fact that there is an even playing field. Members of the Bar have to satisfy the qualification regulations imposed upon them by the General Council of the Bar before they can practise in the higher courts of the land and the same requirements are imposed upon solicitors. By that means, I hope that we will have advocates coming up from either side of the profession who are properly trained and tested and that they will provide the advocacy services that the user of the courts both wants and needs and to which he is indeed entitled.

The Courts and Legal Services Act was structured in such a way--and no better person than the noble and learned Lord, Lord Mackay of Clashfern, knows this--as to open up the system, but to do so in circumstances where one side of the profession had a total monopoly on the rights of audience in the higher courts. When I started at the Bar as a solicitor one only had rights of audience to appear in a magistrates' court or in the county court; and that was it. If one had a client who needed a plea of mitigation to be made in the Crown Court or, as it was then, in the courts of assizes or quarter sessions, you had to go to members of the Bar. There was a total monopoly by one side of the profession. Anything that makes that position more equitable is for the better. What was achieved in the Courts and Legal Services Act was an opening out of the system. However, it was not an opening out on the basis that each side of the profession had the same training regulations or the same requirements that they had to meet in order to become a higher court advocate.

The reason I wholly support Clause 30 of this Bill, which seeks to replace Sections 31 to 33 of the Courts and Legal Services Act with the provisions that are set out in the Bill, is that it creates an even playing field, and it also creates the opportunity for the users of courts to have good advocates whether they come from the stable of a solicitor or the stable of the Bar.

Lord Ackner: I rise for two reasons, one is to discover whether my noble and learned friend the Lord Chancellor will reply to the questions raised by my noble and learned friend Lord Mackay, because he raised matters which I should have thought call for a reply. Then I propose in a matter of three or four sentences to deal with what was said against my application.

Lord Falconer of Thoroton: I intended to reply but my attention wandered briefly at the vital moment and that is why I did not get to my feet quickly enough, for which I apologise. First of all, in relation to the points made by the noble and learned Lord, Lord Mackay of Clashfern, what the Law Society does is obviously a

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matter for that body in the first instance. Secondly, it is perfectly conceivable that it can produce rules that would encourage greater numbers of applications by members of the solicitors' profession to become higher court advocates, for example by imposing training requirements at an earlier stage, by making the qualifications that are required to become a higher court advocate more relevant to the particular experience that solicitors have had up to that time, and also by changing the requirements for training.

As I say, that is a matter for the Law Society. However, I should emphasise that it is the intention of the Lord Chancellor to use the powers which the Bill contains to maintain the standards of advocacy and to allow no lowering of those standards. Such standards are necessary to make the courts function effectively and to meet the needs of those represented. He would not approve proposals from either the Bar Council or the Law Society which had the effect of imposing inappropriate standards. He considers it important that high standards are maintained in both professions, although, of course, he will be ready to consider proposals for change which may seek to do things better or in a different way. He will also look to the legal services consultative panel, the Director General of Fair Trading and the designated judges for considered advice. I hope that provides some answer to the noble and learned Lord's question.


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