§ Mr. Edward Leigh (Gainsborough and Horncastle)I am delighted to have this opportunity to be the Member of Parliament who initiates our first debate on the Lord Chancellor's Green Paper on reform of the legal profession.
As, sadly, this debate has been personalised in some quarters, let me state my credentials. I am a barrister, although I make no claim to being a distinguished or senior one; I have devoted too much time to politics since the age of 20 to aspire to that. But I have a good working knowledge of criminal courts. I venture to suggest that MPs are rather more in touch with public opinion than most barristers. That is not the fault of barristers: it is simply that it is our job and not theirs.
The Green Papers have been widely reported and, it must be said, criticised by interested parties—or perhaps I should call them vested interests. There is nothing pejorative about that phrase. In a democracy, vested interests have as much right to comment as independent observers who, while they may be more objective, may be less knowledgeable.
I thought that it was time for an hon. Member to congratulate the Lord Chancellor on bringing forward the Green Papers. They are an excellent working brief for our debate. Above all, they deserve sober comment rather than hysterical outbursts in newspaper advertisements.
In my conversations with fellow barristers, it has been put to me that the Green Papers begin with dogma. My colleagues say that there is no sustained proof of the shortcomings of the Bar or of how reforms could benefit the public. The "dogma"—the alpha and omega of the papers—is a belief that restricting rights of audience and the promotion of solicitors is a restrictive practice that should be swept away. I do not view that as dogma. It is a sensible assumption.
My barrister colleagues, however, would say that such a restraint on the rights of solicitors is an historic and well-tested tradition and also protects the rights of small country solicitors, enabling them to brief the best in the land. It provides an independent cadre that is dedicated to the pursuit of justice, rather than profit or success in courts.
It has been put to me by my colleagues that, were the reforms to proceed, there would be no incentive for able young men and women to join the Bar, which would wither away as an independent force. I hope that I have been fair to the comments of my colleagues.
In my conversations with the public, I am afraid, I have found not a shred of sympathy for the barristers' case. That does not deter me from my opinions. Lawyers were unpopular long before politicans. The public seem to take the discomfiture of barristers with a large pinch of salt. I attach considerably more respect to the informed lay arguments, that barristers must take their turn to be reformed, like everybody else.
I now come to my views. I hope that they represent a reasonably informed and objective view of these matters. I hold the Bar and its traditions in deep affection. I respect its senior men and women for their learning and their commitment to justice. As a nation, we should be proud of 1283 our incorruptible and dedicated judiciary. It would be a tragedy if the independent Bar was swept away or even withered away.
The traditions of integrity, the skills and the low overheads of an independent Bar compose what is probably the most efficient economic mechanism known to man. The independent contractor freely offering his services in the open market will—this is the crux of my argument—survive and prosper if the reforms are brought in.
The experience of the Commonwealth shows that an independent Bar survives such reforms. The Australian experience in New South Wales proves that an independent Bar can survive and be prosperous, vigorous and independent despite giving rights of audience to solicitors in all courts; nor have large in-house firms of advocates in New South Wales taken work from the independent Bar.
However, we need not look to Australia to confirm that analysis. Our own experience as practising barristers is cogent enough. When solicitors were granted rights of audience in county courts, many of the same arguments were used, such as: "They cannot be trusted as instruments of justice." Not only have those arguments been proved groundless, but the independent Bar flourishes in the county courts. When one walks into any magistrates court in London—I fear that I have walked into too many in my life—one sees that the benches are filled with young barristers, notwithstanding open competition from the solicitors. Why? The barristers are cheaper. They are not paid for those interminable hours of waiting around for their case to be called.
In my experience, few solicitors running busy criminal practices with large overheads and enormous out-of-court work pressures, such as meeting clients, organising bail late at night and much else, would dream of taking on lengthy, relatively poorly paid Crown court trials. Why should they, when most solicitors have known to them a group of experienced advocates who devote their whole life exclusively to court work and to the paperwork that is directly connected with it?
Again, experience in New South Wales shows that little High Court work—only about 10 per cent.—has been taken from the independent Bar by solicitors. However, equally, I have come across solicitors who can present an excellent case in long old-style committals—men with a lifetime of experience in the law and in the lower courts. Is it seriously contended that those men of mature years, of sound legal training and practical experience, are not capable of representing a client just as ably as a 22-year-old barrister with six months' desultory pupillage under his belt? Of course not.
My barrister colleagues have said that if somebody wants to become an advocate, "Why not become a barrister?" They say, "Why should we labour for years in the vineyard for little reward as a barrister, while the prodigal son—a solicitor—walks in at the last moment and helps himself to the plums?" What sort of argument is that? The enemies of the Bar would claim that it merely shows an attitude based on exclusivity—even snobbery—that has no basis in logic.
We all know how difficult it is to start at the Bar, especially for women and for minority groups, but in reality it is difficult for all of us. We have all had that experience. If a young man or woman has been forced by economic necessity to become a solicitor and if increasing 1284 family commitments make it impossible to transfer, should that young man or woman, assuming that he or she develops into an outstanding lawyer, be denied the ability to practise his or her trade at the highest level? Of course not.
At one end of the scale there is an unanswerable case in justice for the solicitors; at the other, we have well-attested evidence that the Bar will survive and prosper, even in the face of open competition. Put like that, the case for the Lord Chancellor's reforms is unanswerable.
However, all that is beside the political point: how can we, members of the Conservative party, justify dealing with restrictive practices, closed shops and vested interests for working-class people—for dockers and print workers —but not for our own people? What would the country think of us, especially as there is widespread belief that legal costs are too high?
The public remains to be convinced that more competition will not lower costs. Indeed, members of the public consider that, if they are not fortunate enough to be wealthy or able to obtain legal aid, the legal system—certainly as regards civil proceedings—is closed to them, and that is a disgrace.
Time does not permit me in this short debate to deal with conveyancing, except to address the central issue of advocacy rights. My advice to the Lord Chancellor is to listen and ponder, and perhaps to compromise on some issues, but to proceed on the main issues of the rights of audience.
I have a few suggestions, for what they are worth. Worries about multidisciplinary practices and their effect on an independent Bar should be taken seriously, and if a compromise must be made, perhaps this is an area for so doing. However, it can be asked, if barristers are to lose their right of exclusive audience in the higher courts., why should they not be compensated by free access to partnerships and direct relationships with clients?
We are giving our opponents a handle by setting up a structure of legal advisory committees and advocacy certificates. The constitutional arguments from certain judges are, frankly, bogus. The Lord Chancellor already appoints judges, and the committees will only set clown standards of practice. Perhaps we should consider simplifying matters by extending rights of audience and leave the rest to self-regulation.
In any event, I call on the judges to lower the temperature. The remark by the Lord Chief Justice was, frankly, way over the top. The judges must take the lead in suggesting consensus and refrain from using inflammatory language that does their case with the public no good.
The Bar will have to do a deal with the Law Society. The Law Society pressed the Lord Chancellor to act. and his proposals are the result. The Bar cannot will them away with a Saatchi and Saatchi advertising campaign. Indeed, it will have to do a lot better than the "Wrong, wrong, wrong" advertisment. What nonsense to suggest in that advertisement that, if the reforms were to proceed, high street solicitors would wither away. This week the Law Society published a temperate and sensible response. Its views cannot be ignored by the Bar, any more than by the Lord Chancellor.
As a Government, we believe in self-regulation. Clearly, the Bar Council and the Law Society must sort out standards of advocacy, and it is better that they, rather than we, do it. The Lord Chancellor must also do some 1285 more work on the effect on the consumer. Will this reform lower costs? As I have said, for too many people it is just not an option to go to court. Can we have more information on foreign experience?
The Crown prosecution service question must be examined in more detail. That service has not been a success. Nor, in my view, will it ever be able to attract sufficient first-class entrants, if employed barristers cannot practise in Crown courts. It would clearly be absurd if employed barristers could prosecute but employed solicitors, often working in the same office, could not. The "Wrong, wrong, wrong" advertisement from the Bar Council was also deeply insulting to the integrity of Crown prosecution service personnel.
We need more information on the nature of the Bar. I doubt that it is the small elite known to judges that it was. To what extent, however, does the esprit de corps feeling facilitate justice, and how much has that esprit de corps broken down in recent years?
Those are a few suggestions and questions. I congratulate the Lord Chancellor on having the courage and determination to take these issues on in a positive and understanding way. He has conducted himself in an exemplary fashion in this debate. He deserves the thanks and the praise of the whole House.
§ 12.8 pm
§ Mr. Tim Devlin (Stockton, South)We live in stirring times. After 700 years, a determined Government of outsiders has dared to question the automatic rights and the closed shop of the Bar. The Bar's response has been surprising. Here is a profession which is supposedly good at thinking on its feet and which can always see the tactical advantage and the way forward, yet from this profession I see an outraged and hysterical response—hardly the cool and dispassionate dissection of an argument that I was taught as a young pupil.
I have yet to attend a meeting as a barrister where the word "consumers" is used—certainly not with approval. Now the Bar has moved to lower forms of attack. We have already heard arguments ranging from exaggeration to obvious misrepresentation and they have done no good.
The Bar has accused the Government of a sinister attack on its independence. What of news given to me last night by a colleague at the Bar, that the Bar Council has a file on me and other hon. Members which it intends to use for future attacks? It has already criticised my right hon. Friend the Prime Minister and the Lord Chancellor. It said that the Lord Chancellor is a Scot and does not understand the English system, that he had not thought out his proposal carefully, that he prepared it on a Sunday afternoon when he did not have a great deal of time, and that he had been pushed into it by the Prime Minister, another barrister. It says that the Prime Minister had only a short time at the Bar and does not understand how it works, and that she is simply seeking revenge for some petty pique that she acquired during her brief period at the Bar.
That is a total disgrace and does nothing to enhance the standing of an ancient profession worthy of the highest respect. The Bar argues tha the client is entitled to Rolls-Royce treatment and therefore has to pay Rolls-Royce prices, but that rests on a number of 1286 assumptions held by senior members of the profession who seem not to know or care about the junior end of the profession.
There are great variations in the ability of individual barristers and it is not necessarily the best who get into chambers or who take silk. When this year's new Queen's counsel are announced, it might be interesting to see exactly who they are. I have not had time to scan their qualifications, but I did go through last year's list.
In 1988, the proportion of QCs who had been to state schools was 28 per cent., while 72 per cent. had been to fee-paying public schools. Oxbridge provided 63 per cent., other universities provided 24 per cent. and those who had been to no university—horror of horrors—accounted for only 8 per cent. Women accounted for a mere 5 per cent. and a number of articles published two days after the silks were announced pointed out that three out of four of the 57 silks appointed that year had had the greatest difficulty in getting into chambers in the first place.
Let us examine the fate of those who do not get into chambers. They go to the City or they retrain as solicitors, but why should they not be able to become solicitors automatically? Those people are not necessarily less able: more often than not they do not come from a legal family or their faces do not fit. I suspect that part of the Bar's anxiety about rights of audience is that many of those people, who may be more talented, will be able to remain in the profession and compete as solicitor-advocates. That shows a monumental lack of self-confidence. If the Bar is the cream, the cream will rise to the top.
I know from my experience as a barrister that some of the most successful barristers have already been solicitors. The Bar must exist by its excellence alone and not be buttressed by legal restrictions.
I believe that there will continue to be a demand for the services of the Bar. Many solicitors' firms regard junior counsel as cheap overflow labour. Most clients do not care a fig for the independence of the Bar and are sick of seeing barristers fumble through cases as they learn them on their feet. The whole business of independence is a myth, certainly at the junior end of the Bar. Many firms of solicitors have a semi-permanent or permanent relation-ship with particular chambers and often send along junior counsel who deal with clients direct.
The system is charging for two tiers but only providing one. There are no complaints. Those of us who have had to go to Worksop on the Wednesday and have been given a file with a piece of pink string around it containing a piece of paper with a chap's name on it and a note saying, "Please do the necessary," do not complain, because that is our bread and butter, our £50 in the bank to make the bank manager a bit happier. [Interruption.] Yes I will speed up and get on.
It is worth pointing out that there is already competition between solicitors and barristers in the county court. We have had all these arguments before. We are now watching London firms and provincial firms of solicitors merging, but that is not cutting down work for the junior Bar. We should go in for purse-sharing. That is a sensible new reform.
At the top end of the spectrum the solicitor-advocate will be able to free himself of overheads and take work from several firms, not just his own. The crucial question is not the future of the Bar or of solicitors, but how consumers get a cheaper, quicker service with a more predictable outcome. The law has become a lottery in 1287 which only the rich and very determined will take part. The Government must step in once again to crush a vested interest in the interests of the overall good of the nation. Competition is a wind which generally blows the consumer much good. Solicitors have shown that they can withstand it, when they lost their conveyancing monopoly. If barristers are the cream of the profession, as many of them seem to believe, they, too, can adapt to a changing world.
§ Mr. John Fraser (Norwood)This is a short debate and no substitute for fuller consultation with Members of Parliament. It is not possible to give any comprehensive critique of the three Green Papers.
We in the Opposition readily agree that the aims and objects of the Green Papers are beyond dispute. Legal services should be cheaper, without loss of quality. They should be readily accessible, and the services of those with expertise should be more readily known and affordable. I want to deal with the principles which should govern the approach to the Green Papers.
I shall not become involved in any inter-professional row. There is no case for restrictions which exist for the benefit of the professions, not for consumers. That goes for all the professions: judges, solicitors and the Bar. They must make themselves more readily accessible and user-friendly, and they should have the ability to advertise and inform about their specialities. I hope that the idea of advertising and making specialities known can be developed.
The hon. Member for Gainsborough and Horncastle (Mr. Leigh) touched on the principle of what is described as the independence of the professions. One must be careful. The independence of the professions is an important element. By "independence" I do not mean detachment from responsibility or accountability to the general public. I do not mean that the professions should be immune from change, because that would be an arrogation of privilege. The independence of the professions means that collectively they should not be subservient to the state or amenable to any detailed political control.
I take the hon. Gentleman's point that the Lord Chancellor may wish to loosen the arrangements of access to higher courts for solicitors and to have a system of advocacy certificates. He is absolutely right that, having had that broad-brush approach from the Lord Chancellor, the detailed control of such matters should be left to the professions. That is not a vested interest argument. It is simply a point which has been made powerfully by the National Consumer Council. It stated:
We welcome greater lay participation in the regulation of the legal profession. We are concerned, however, that the Lord Chancellor proposes to make final decisions on whether a particular area of expertise should be recognised and the standards of education and training appropriate in each case. In our view, such decisions should be made by a statutory Legal Council … employing its own secretariat.The NCC then recommends that the detailed control of these matters should be for the professions, not the Lord Chancellor. That is absolutely right. We have had far too detailed a degree of political control exercised by the Lord Chancellor.The next principle concerns the individual independence of lawyers. Lawyers are officers of the court and have an ethical duty to act properly, but their main and central duty must be the client they represent. They should 1288 be able to do that without fear or favour, or any conflict. When the Lord Chancellor is studying the conveyancing proposals, he should consider the way in which the property market has become concentrated in the hands of a few people. For example, the influential Prudential Assurance Company may well now be selling property as an agent, providing the mortgage to the vendor, providing an insurance policy for the vendor, providing—subject to the current proposals—legal service to the vendor, providing a mortgage to the purchaser, an insurance policy to the purchaser and so on. As the Lord Chancellor pointed out in the Green Paper, in those circumstances, the legal adviser will owe a duty to two people.
The Lord Chancellor must study carefully what is already becoming a complex monopoly of property services in the market. It would be strange if, at the time that the Monopolies and Mergers Commission is loosening up the tied arrangements of brewers, a new kind of monopoly and ties were created in relation to other services.
It is important to ensure access to all legal services and freedom of choice for the consumer. There is no difference of opinion between my party and the Lord Chancellor about the need to provide safeguards for consumers. The Lord Chancellor must consider carefully, however, the independence of employed lawyers in relation to property transactions.
Any discussion of adequate provision of legal aid is absent from the Green Paper. We do not want the contingency fee arrangement to be some kind of smokescreen for not extending legal aid and accessibility to legal services.
This is not the time to have a detailed and thoughtful discussion of the Green Paper, but I ask the Solicitor-General to make a request to the Lord Chancellor to extend the period of consultation. There is a lot of interest in the proposals.
The Royal Commission on Legal Services took a long time to consider many representations. In view of the comments that have been made, the Lord Chancellor should extend the time for consultation beyond the May deadline, particularly since his proposals did not come from any kind of multidisciplinary inquiry, but from within his Department.
§ Mr. Deputy Speaker (Mr. Harold Walker)Before I call the hon. Member for Lancashire, West (Mr. Hind), I must remind the House that this debate must conclude at 12.30 pm.
§ Mr. Kenneth Hind (Lancashire, West)I shall be brief, Mr. Deputy Speaker.
The Bar, as part of the legal profession, must accept that the Conservative party, which is dedicated to free and open competition, will naturally push forward its reforming ideas into the professions having dealt with many other aspects of our society.
I am concerned that the quality of the profession, its expertise in advocacy, its high standards of discipline and honesty are maintained. The independence of the Bar is not under threat from the Green Papers. Many of my colleagues at the Bar have gone over the top in their criticisms of them.
There are three important considerations. First, commercial solicitors are not coming forward in droves to 1289 seek to recruit barristers—they cannot afford them. Some 80 per cent. of solicitors' practices in this country are four-man practices or smaller. They will need an independent Bar to provide expertise on the cab-rank basis and, accordingly, it will continue. The third important consideration is that the market will rule on costs because the Bar provides a much cheaper service than solicitors, who will be unable to compete in certain areas of litigation, such as crime. For the foreseeable future, therefore, the independent Bar will survive and it is essential that it does.
There are three things that the Lord Chancellor must consider carefully in his deliberations. The first is recruitment. Earlier certificates should be granted to young barristers who go to the Bar with the intention of becoming specialists in advocacy. That must be borne in mind when considering the generalist who becomes an articled clerk to a solicitor. Barristers should be allowed to form partnerships to help them recruit and to pay new young barristers. The Lord Chancellor must give great consideration to the salaries of Crown prosecutors who will appear in the Crown court. Those prosecutors must be paid a great deal more; otherwise, the necessary quality of advocate will not be attracted.
Those are important matters, and I hope that the House will seriously consider them.
§ The Solicitor-General (Sir Nicholas Lyell)This inevitably has been a short debate and it has rightly attracted a great deal of interest. I congratulate my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) first on initiating the debate, and I thank him on behalf of my noble and learned Friend the Lord Chancellor for his kind remarks, which will be much appreciated.
It will be understood that in just over five minutes I cannot cover the whole of the broad and profound issues that are dealt with by these Green Papers. Three main issues appear to have been concentrated upon in the public debates and in the debates by my hon. Friends and the hon. Member for Norwood (Mr. Fraser). They are, first, the future structure of the legal profession—I emphasise the word "structure"—in relation to the rights of audience; secondly, conveyancing by financial institutions, on which the hon. Member for Norwood has made some comments; and, thirdly, very briefly, although more widely in the public, the issue of contingency fees. My hon. Friends have concentrated principally on the first issue, which is the question of rights of audience and advocacy and the questions that flow from that concerning the structure of the legal profession.
The first point that I want to emphasise, is one that my noble and learned Friend the Lord Chancellor has been at pains to emphasise in two recent conferences—one more expensive than the other; costs may have had something to do with attendance—that these are Green Papers and that 1290 the Government are listening. They are consultation papers, on which the Government welcome comments from as broad a range of opinion as possible. I think, as lawyers, that we understand better than anybody else that it is difficult for any individual—that includes a lawyer —to put his own case. That is why the Lord Chancellor looks for comments beyond the range of lawyers and beyond barristers and solicitors arguing for themselves, and wishes to draw in the consumer and the wider public.
The second point that my noble and learned Friend the Lord Chancellor stressed is that the measures deserve to be studied with care. They start to examine from first principles a question that has been discussed for as long as I have been at the Bar. That has inevitably been disturbing, because those who begin an argument from first principles do not feel that they can control where that argument may end up.
In the context of this short debate, I would like to draw the House's attention to a few passages in the Green Paper that show that the Government are aware of different arguments and are especially aware of arguments that may bear upon the structure of the professions.
Chapters 5 and 8 of the Green Paper concentrate on those arguments. My hon. Friend the Member for Lancashire, West (Mr. Hind) asked what help we could draw from Commonwealth and other common law experience. The Green Paper—after reviewing some of the competitive arguments in paragraphs 8.7, 8.8 and 8.9—especially asks for comments on that at the end of chapter 8. I invite the public and the House to concentrate on the issues highlighted in those paragraphs.
The Green Paper starts with principles that I believe are very difficult to gainsay. Basically—I shorthand them—those objectives are set out in the first chapter. They are to ensure that the public has the best possible access to legal services and that those services are of the right quality for the particular need of the client.
Everybody who has spoken in this debate has said that they wish to see a continuance of a strong independent Bar. I hope that I have paraphrased correctly. They make the point that barristers should not be afraid that they cannot compete against solicitors and that barristers should have the courage to welcome competition from solicitors. I believe that that is right as far as it goes.
The legal profession has, over the years, divided itself into two portions, one specialising in advocacy and the other in general legal services, if that is not a contradiction in terms. We should concentrate our minds on how in future, on the basis of the principles proposed in the Green Papers, the profession will structure itself. There have been valuable contributions from within the House and from outside on that important question, together with important contributions from the Law Society on the question of financial services in the context of conveyancing and wider contributions on contigency fees. The Government will be paying close attention to those arguments during the further six weeks of the consultation period and before forming their conclusions on these highly important issues.