§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Peter Lloyd.]2.30 pm
§ Mr. Ivan Lawrence (Burton)
I am grateful for this opportunity to do something that barrister Members of Parliament seldom do in this place, and that is to speak up in defence of an honourable professional system that is often attacked, unfairly, as an outdated and inefficient way of delivering legal services to those who need them. I can do that because the House today is not full of the usual jeering jesters who derive from Jack Cade's rebellion in the middle ages the belief that all lawyers should be hanged — and certainly that none of them should be elected to Parliament. When those very colleagues need our help, it is remarkable how quickly their tune changes.
Coolly and calmly and, I hope, intelligently and briefly, I shall state the case for maintaining the separation of the barrister and solicitor branches of the legal profession. I trust that I shall secure in reply the clear commitment of the Government to the maintenance of that separated system.
The demand by solicitors for their right of audience to be extended from magistrates courts, county courts, tribunals and matrimonial hearings in chambers in the High Court, to the Crown court, the open High Court, the Chancery court and the Courts of Appeal has nothing necessarily to do with the call for a fused legal profession and is too often confused with that call. Whatever the rights and wrongs of the case for extending the right of audience, it is difficult to think of any serious defect in the operation of our legal system which would be cured by the fusion of the barrister's profession with that of the solicitor's.
First, let us consider the accusation of high legal costs. A barrister is like a taxi driver. Like the taxi driver on the cab rank, the barrister who stays in his chambers waiting to be booked for a case by a solicitor, can be booked for service by whichever solicitor wants him whenever he is available. The analogy illustrates why the Bar usually provides a cheaper service than do solicitors. Unless one is a commercial traveller, it is usually cheaper to take a taxi than to run a car full-time. As with a taxi, one pays for a barrister only when one needs him, and one pays for a service which usually has much lower overheads. For, like the taxi driver, the experienced barrister knows the quickest, most efficient and, therefore cheapest route to his destination.
If one went into any Bar law library, one would see young men with first-class honours degrees preparing legal arguments for a fraction of the price that they would charge if they were junior partners in a firm of solicitors. So even where solicitors do have the right of audience, they usually brief a barrister to do the work. Perhaps the most startling achnowledgment of the comparative cheapness of the Bar can be seen in the fees being offered for court work by the new Crown Prosecution Service in London Solicitors were to receive £250 a day for magistrates' court. work. The Bar asked for £150 and, I believe, received £95 for exactly the same work. I would be grateful if my right hon. and learned friend the Attorney-General could give me any update on those figures. One has to conclude that the allegation that fusion would be cheaper is ill-founded.
§ Mr. Graham Allen (Nottingham, North)
I was interested in the analogy that the hon. and learned Gentleman made between a barrister and a taxi driver. What will happen to those who can only afford public transport, notably the vast majority of people who find barristers' and solicitors' fees expensive and who depend upon legal aid and advice centres?
§ Mr. Lawrence
If such people depend upon legal aid, they can go to solicitors or barristers on legal aid. They can also go to advice centres, and the Government have been most active in helping to establish advice centres in those areas of the country where they are needed. I shall come back to this matter if the hon. Gentleman is worried about it.
The second accusation that is often made concerning the existing system is that of legal delay. There are always barristers waiting on the taxi cab rank. Let us suppose that they left that cab rank to become part of a firm of solicitors. Would solicitors, whose trial lawyers were up to their necks in work, seek the advice of an advocacy specialist in a rival firm? Of course not. Given those circumstances, a case would not be dealt with any quicker. What would happen is that the solicitor would apply to postpone the court hearings and if it was granted, there would be more delay. Although delays occur at the moment with busy barristers, it happens rarely because applications to the court for a postponement to suit the barrister are frequently refused. If such an application by a solicitor was refused, it would mean that the solicitor who began the case would no more be able to follow that case through to the end than the barrister can now. The accusation that the present system does not always ensure that someone gets the advocate that he wants or started with would not be cured by the fusion of the professions.
As regards the trial, it is usually quicker and therefore cheaper to use the specialists waiting on the cab rank. The barrister working daily in the criminal courts is trained and experienced by constant practice in the law of evidence and the presentation of cases. The barrister, compared with the solicitor who may be an occasional advocate, inevitably becomes more efficient and wastes less time. The civil barrister becomes a faster and more efficient drafter of pleadings and negotiator of settlements. As the law becomes more complex and specialist, the value of the experienced barrister will grow.
The barrister also builds up a reputation with judges before whom he often appears. They trust him without the need to waste judicial time finding out whether he knows what he is doing. We can therefore afford to operate a system where our judges, starting in ignorance of the details of the case, are led through its intricacies by counsel in oral hearings. Such hearings continue without interruption until the judge's prompt and extemporary judgments are delivered.
Such trust springs not only from reputation, but from the detatchment and objectivity of counsel. That virtue of the system might well be lost where a solicitor becomes personally involved with the client. That would naturally tend to happen if a solicitor was concerned with the client's wills, divorces, conveyances or contracts over many years.
The United States has a fused system and judges there tell me that they cannot rely so often upon the skill of their advocates. As a result, evidence in those courts is more often documentary. Hearings are more protracted and interrupted for days at time while judges go over the 1458 arguments again. Judgments are more often reserved. One of the features of our system that is greatly admired by American lawyers is its speed, which is one direct result of the separation of the legal professions. No less an authority than Chief Justice Warren Berger highlighted the faults of the fused United States system and unashamedly preferred the British way.
Let us next consider the availability and quality of legal services, which will, perhaps, have some bearing on the point made by the hon. Member for Nottingham, North (Mr. Allen). Almost two thirds of solicitors' firms have only one or two principals. On the cab rank analogy, any solicitor's firm, however small or far out in the country it may be, can brief the best advocate in the land. If Marshall Hall had been a partner in a firm of solicitors, how many other solicitors would have had access to him? The answer is none. Worse still, would not solicitors who were inexperienced in a particular branch of the law try to handle matters entirely themselves, rather than run the risk of losing a client? With a fused profession, how long would it be before the best firms of solicitors would be attracting the best counsel to join them? Large firms would inevitably grow larger and smaller firms would disappear because they could not compete. Those larger firms would tend to concentrate in the more prosperous parts of towns and cities and the run-down, inner-city areas, the small towns and villages—the places where advice centres are also so necessary—would lose their small, local solicitors. Solicitors are already growing considerably fewer in number in those parts, with the loss of the conveyancing work that resulted from a decision that the House inadvisedly took a short time ago. Therefore, legal advice would become far less personal and friendly; and it would become more expensive, as it would involve travelling to towns and cities to get anywhere near a solicitor. Fewer people would feel like seeking it. The inevitable result would be less access to the legal services than there is now.
Of course, mergers occur now and firms grow larger, but with fusion that would happen more often. The larger the firms, the less competition there would be, the higher the legal costs would be and the less well would the public be served by their lawyers. It is precisely because fusion would not bring about a service that would be cheaper, speedier, more available or of better quality—whatever the myth may be—that the public interest is better served by the separation of the two legal professions.
The Royal Commission on the provision of legal services and the recent decision of the Court of Appeal in the case of Abse v. Smith confirmed that conclusion. It is an open secret that some members of the Royal Commission started their work less sympathetic to the idea of the existing separated system than they were when they finished.
Of course, fusion works in some countries. It might work well enough in the United States, the remarks of Chief Justice Berger notwithstanding, or in Germany, France or Italy, but the whole systems of those countries are different. What suits the fabric of one country's legal system will not necessarily suit that of others. Even so, the elements of our system that are most admired by lawyers from those countries who visit Britain and observe how we proceed are the cheapness, speed, availability and the quality of the services that we provide.
I hope that no one will think that this conclusion is complacent. There is, as I have said, much that is wrong with our legal system. It is often too slow; legal advice is 1459 too seldom sought; too many guilty people are acquitted; and our court buildings are often a disgrace. Of course, steps must be taken by the Government and the legal profession to deal with those problems.
My case has been, I hope, shortly deployed. It has been that whatever steps ought effectively to be taken to improve the system, fusion of the solicitors' and barristers' branches is simply not one of them. I hope that I have convincingly made out that case and that the Government remain convinced of the case. I hope that my right hon. and learned Friend who graces the post of Attorney-General will confirm that the Government have no intention of interfering with the balance of a system that has served, and will continue to serve, the nation well.
§ The Attorney-General (Sir Patrick Mayhew)
I congratulate my hon. and learned Friend the Member for Burton (Mr. Lawrence) on securing an Adjournment debate on this extremely important subject. The structure of the legal profession must be such as to secure the efficient provision of high quality legal services for the public. The due administration of justice, and, therefore, in a democracy the preservation of freedom, depends upon a strong and independent legal profession.
Both branches of the profession are now working together on a committee which they have established jointly and which consists of six barristers, six solicitors and six lay persons, chaired by Lady Marre, to consider the future of the profession and to produce ideas for its development. The Government await with interest the report of the Marre committee. Meanwhile, I am glad to have this opportunity to outline on behalf of my noble and learned Friend the Lord Chancellor the Government's own perception of the professional framework that is necessary.
My hon. and learned Friend concentrated on the issue of freedom and referred to the recurring argument that the public interest would be better served if the two branches of the profession were to be amalgamated. There would then no longer be a division of function and of organisation between barristers and solicitors. He summarised the arguments that are principally advanced for fusion and subjected them to a stringently critical analysis. His conclusion that the public interest would be ill-served by fusion is in line, as he said, with the conclusion of the Royal Commission on legal services expressed in its report in 1979 which the Government accepted.
That commission, which was chaired by Sir Henry Benson, now Lord Benson, comprised a majority of lay members. That is important. It was established in 1977 to inquire into the provision of legal services in England, Wales and Northern Ireland. It also had to consider whether any changes were desirable in the public interest in the structure or organisation of the legal profession. The commission duly undertook the most comprehensive examination ever made of our legal services and of the arrangements for their provision. Arguably, its major recommendation was that the legal profession should continue to be organised in two branches, those of barristers and solicitors.
Representations to the commission had been made from a number of sources that fusion might avoid unnecessary duplication of work, might ensure that the client saw only one lawyer throughout the proceedings in which he was concerned and that that would be a general 1460 advantage. At the end of the day the commission attached greater weight to the factor that fusion would be more likely to lead to an unacceptable reduction in the number and distribution of smaller firms of solicitors—a point that my hon. and learned Friend forcibly made—and to the dispersal of the specialist service that is now provided by the Bar.
While it accepted that some saving of costs might accrue in smaller cases, the commission anticipated that the expense of litigation might turn out to be greater in the more substantial cases. Accordingly, the unanimous conclusion of its members was that it was in the public interest for the profession to remain organised in its two branches.
As to the issue of costs, my hon. and learned Friend the Member for Burton adverted to the Crown Prosecution Service. It is true that solicitors who are employed as agents by the Crown Prosecution Service to prosecute in magistrates' courts are paid more than barristers, but that is not by a margin that is judged to be greater than the increased overheads that they must pay. That matter has been carefully assessed by the Treasury.
§ Mr. David Ashby (Leicestershire, North-West)
Will my right hon. and learned Friend give an undertaking to review payments to the Bar for prosecution work if the resolution of the Inns of Court is passed that commercial rents should be paid on premises that are used by the Bar? In other words, barristers' costs will relate more closely to those of solicitors.
§ The Attorney-General
I take that point, which was well made by my hon. Friend. Remuneration for lawyers who do publicly funded work is kept under close review.
The conclusion of the Royal Commission was, as I have said, accepted by the Government in their response to the report. That opinion remains unchanged. The weight of evidence before the commission strongly suggested that a two-branch profession was more likely to secure the high standard of advocacy which is indispensable to the administration of justice, and the commission so concluded. The Government remain of the view that this consideration bears as much force today as it did in 1979. We have not seen evidence in the intervening eight years which persuades us that circumstances have now changed' so as to lead us to revise our acceptance of the commission's conclusion with regard to fusion.
There is an important additional argument upon which my hon. and learned Friend touched. It regards the width of choice that is available. In a rather graphic illustration. he said that Marshall Hall would not be available to those other than clients of the firm of which he would have been a partner. The width of choice that is available to a solicitor on behalf of his client is an immensely important advantage that the present system provides to the lay client.
That brings me to the question of rights of audience. Here I part company with my hon. and learned Friend because I think that it is an issue that is related to the debate about fusion. The present position is that, in criminal proceedings, solicitors acting for a defendant have limited rights of audience in the Crown court, whereas they have unlimited rights of audience in magistrates' courts. Section 83 of the Supreme Court Act 1981 gave the Lord Chancellor power, in order to ensure that the public is adequately served, to extend solicitors' 1461 rights of audience, having had regard to any shortage of counsel in a particular area, to any rights of audience that were previously exercised by solicitors and to any other circumstances affecting the public interest.
It is against the background of considerations such as those that solicitors have, for many years, enjoyed wide rights of audience in the Crown court in Bodmin, where it is recognised that counsel are not readily available all the time. Solicitors also enjoy full rights of audience before a judge of the Crown court when he is sitting in chambers and before a High Court judge similarly. Section 4 of the Prosecution of Offences Act 1985, which set up the Crown Prosecution Service, gives the Lord Chancellor similar powers in respect of prosecution work, but the Government made it clear during the passage of that Act that they were not considering the question of any general extension of rights of audience, and that the new power would be used only to the same limited extent as that in the 1981 Act.
In its report, the Royal Commission pointed out that few solicitors had the experience in advocacy that was necessary to enable them to practise with wider rights of audience, and that the practising Bar was more than adequately equipped to meet the needs of the public. It recognised that the suggested extension of solicitors' rights of audience in the superior courts would involve considerable changes in the profession. The Royal Commission held that these would distract the profession from meeting the needs of the public for other services which solicitors could and should provide. The commission concluded accordingly that there was little sense in making a change which would put additional burdens on the solicitors' branch, which was already overloaded, and at the same time would erode the position of the Bar, in particular its junior members. The Government, in their response to the commission's report, accepted that conclusion. Moreover, in the recent White Paper on legal aid we reiterated that we did not intend to extend rights of audience in the Crown court. We do not at present see any reason to revise that decision, nor to give further consideration to extending solicitors' rights of audience in other areas.
It is right, however, that over the past few years each branch of the profession should have been looking closely at its organisation, and at the whole range of its professional practices, to see where its service to the public could be improved. That has been done, and to good effect in that reforms within each branch have resulted which are aimed at producing a speedier, more cost effective and more proficient service to clients.
Both branches of the profession have improved their arrangements for the recruitment and training of new members. The Law Society has introduced a programme 1462 of continuing education under which all solicitors admitted after August 1985 are obliged to attend training courses during the three years immediately following their admission. Some of the courses, which are frequently attended by senior practitioners on a voluntary basis, are geared towards the acquisition of such basic skills as client communication and office management, but many are set up for the purpose of developing practitioners' specialist knowledge.
Only in the last fortnight, proposals have been published by the Law Society to improve access to the courts for those who are not eligible for legal aid, or who are not adequately covered by legal aid—a point raised by the hon. Member for Nottingham, North (Mr. Allen). The scheme proposed would be run on insurance lines under which litigants would pay a fixed and moderate fee for entry into the scheme and be protected against liability for costs in the event of the litigation being unsuccessful. In addition, the accident legal advice scheme has just been launched with a view to removing the difficulties that many potential plaintiffs in personal injury cases encounter in identifying a firm of solicitors willing to help them. The scheme provides for free initial advice on the possibility of a claim.
The Bar Council, for its part, is aiming to provide an increased number of scholarships to cover the period of study at the School of Law, where training is being substantially remodelled so as to place less emphasis on academic study and more on the acquisition of practical skills, in client communication long neglected, in my personal view as well as in advocacy. The Bar Council envisages that most of the 200 to 300 new barristers who start practice every year will receive significant financial help while at the School of Law and during their subsequent year's training in pupillage.
Those initiatives are warmly welcomed by the Government. The Government are also grateful for the way in which both branches of the profession have been examining, with officials of the Lord Chancellor's Department, further ways of saving cost to the public and of improving productivity.
There is only one criterion against which the structure of the legal profession may properly be judged, and that is the public interest. No tradition, practice, rule or privilege, however deeply entrenched, can be sustained unless it meets that test. I believe that the profession itself, in each of its branches, seeks no other test and acknowledges that none other would be justified. The initiatives to which I have referred illustrate the reality of that commitment; and that, too, is the standard which the Government will apply to the legal profession, no less stringently than in any other area of service to the public.
§ Question put and agreed to.
§ Adjourned accordingly at one minute to Three o'clock.