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Lord Clinton-Davis: When the noble Lord, Lord Kingsland, comes to make his observations on the response of my noble and learned friend the Lord Chancellor perhaps he will indicate what the Institute of Legal Executives does to ensure high standards among its members. I am sure that my ignorance in this matter is my fault. What disciplinary code if any does that body have? How vigilant and disciplined is it in exercising any such code that may exist? This is critical in terms of the criteria relating to membership that the noble Lord demands.
Viscount Bledisloe: Perhaps the noble Lord can also deal with the following point. I understand that this amendment would prevent a person from describing himself as a non-practising legal executive. A solicitor who does not have a practising certificate can say that he is a non-practising solicitor. Can one say that one is a non-practising legal executive?
Lord Thomas of Gresford: The Institute of Legal Executives is an excellent body that does a great deal of work in training and ensuring the highest standards of those who work in solicitors' firms. There should be no suggestion, even in a question, that there is anything less than proper in the way that that institute carries out its work. I support this amendment.
Lord Clinton-Davis: I am sorry that the noble Lord implies that I am being unduly critical. I raise the question because I simply do not know the answer. Similar situations arose in relation to insurance brokers as a consequence of which the then government introduced the Insurance Brokers Registration Act, for which I was responsible. I genuinely want to know the situation. If an individual had been practising as a legal executive for a long period of time would he be required to undertake a course of whatever it might be in order to become a member of that body when that had not been imposed on him before? I believe that these factors should be weighed in the balance in deciding whether or not this is a good proposition.
Lord Kingsland: As I understand it, the structure of the institute and the way in which it manages itself, conducts examinations and investigates breaches of conduct are similar to the other two legal professions. I am not sufficiently knowledgeable about the way in which the system has worked over the past 20 years to say whether it has worked as well as the solicitors' profession or the Bar Council or otherwise. I am certainly prepared to provide the noble Lord with further information, but I cannot do that at the Dispatch Box now.
Lord Woolf: Perhaps I can assist noble Lords marginally on this subject. I must disclose that I am a vice-president of the body. Rights of audience were required as a result of a recommendation of ACLEC. It was considered and approved by the designated judges and followed as a consequence of that. I ask the noble Lord, Lord Clinton-Davis, to bear in mind that it is unlikely that that procedure would have been followed unless those different bodies were satisfied on the kind of matter that he raises.
We have the authorised body and the functions of the authorised body of the Institute of Legal Executives. If, for example, the Institute of Legal Executives gives a right to its junior members--those who have not become fellows--to appear in front of a master of the High Court or the like, it seems that nobody would be misled and that that would be entirely in order. I wonder whether the noble Lord who has tabled the amendment would address that point.
Lord Kingsland: With great respect, I am not sure that I understand the noble Lord's question. If someone misrepresents himself as a legal executive, properly examined and accredited by the institute, he will be committing a criminal offence if the noble and learned Lord the Lord Chancellor accepts the amendment.
The Lord Chancellor: The purpose of Amendment No. 243 is to protect the title of "legal executive". The effect will be that it is an offence for anyone who is not a fellow of the Institute of Legal Executives (ILEX) to describe himself, whether expressly or by implication, as a legal executive.
My response is that the offence which the amendment would create is unnecessary. If anyone uses the title of legal executive to imply that they have a right of audience as a fellow of ILEX or, in the future--and as proposed by the Bill--a right to conduct litigation as a fellow of ILEX, then that person could be found guilty of an offence under Section 70 of the Courts and Legal Services Act 1990. Section 70(1) provides that:
Fellows of ILEX may also administer the oath, the institute having been prescribed for that purpose under Section 113 of the Courts and Legal Services Act 1990. It is an offence at common law to administer the oath without authority.
I agree with noble Lords to this extent. I, too, was very pleased when the Institute of Legal Executives finally became an authorised body for the purposes of granting rights of audience to its suitably qualified fellows, on 23rd April 1998. When the designated judges and I gave our approval to the application in October 1997, I wrote to the then president of the institute congratulating ILEX on being the first new body to be authorised under the 1990 Act to grant rights of audience. I said that:
This amendment would make it a criminal offence for anyone to describe himself as a legal executive who is not a fellow of ILEX with a current practising certificate. That, I think, is going too far. The Institute of Legal Executives was formed in 1963 as the successor body to the Institute of Solicitors' Managing Clerks' Association. It has various classes of membership, of which fellowship is the most experienced, but out of a total of 23,000 members, only about 6,000 are fellows. The other 17,000 or so are members of the institute, and may now style themselves, quite properly, and regard themselves as "legal executives". This amendment would force them to change their title, or to be liable to a criminal charge. It is generally understood that the term "legal executive" is of sufficiently broad usage, perfectly properly, to cover those, particularly in solicitor's offices, who work in a legal capacity, but who do not derive their authority or status from statute, like solicitors, or from the common law, like barristers. So long as no one is being misled, I do no not believe that there is a problem.
I consider that there is already sufficient protection for the restricted activities of fellows of the Institute of Legal Executives. I do not believe that an additional criminal offence of the kind proposed is necessary.
The purpose of the second amendment is to extend legal professional privilege to legal services provided by fellows of ILEX. However, it is questionable that it will have that effect. The Institute of Legal Executives is already an authorised body for the purposes of granting rights of audience to its suitably qualified fellows. Clause 34 provides that the institute should be authorised for the purposes of granting rights to conduct litigation to suitably qualified fellows, that is to say, once appropriate rules have been approved.
Legal professional privilege in respect of advocacy and litigation services provided by an authorised advocate or authorised litigator is already ensured by Section 63 of the 1990 Act. Section 63 applies to any communication to or by a person who is not a barrister or solicitor at any time when that person is for these purposes,
The noble Lord, Lord Kingsland, has sought to add this new provision to Schedule 6 to the Bill. But that schedule deals only with rights of audience and rights to conduct litigation. As I have just explained, these are already covered by Section 63 of the 1990 Act. In any event, therefore, it appears to me that the amendment would not fit into Schedule 6.
I remain unclear, as I think do other noble Lords, what the amendment would mean and what it is intended to cover. If it is intended to cover anything other than advocacy and litigation, it must be the giving of legal advice. But I am satisfied that a court would say that privilege applied exactly as it would with a solicitor, so the amendment is almost certainly unnecessary. Apart from anything else it would seem odd indeed to give statutory protection to the legal professional privilege of legal executives alone while that of barristers and solicitors, and I believe of legal executives too, is protected at common law.