HL Deb 28 January 1999 vol 596 cc1226-9

(" . In the Courts and Legal Services Act 1990, after section 31C (inserted by section 33 above) insert—

"Duty to advisers to suitable advocate.

31D.—(1) A person exercising a right to conduct litigation must, in relation to any advocacy to be conducted in proceedings before a superior court of record, advise his client in writing as to whether or not that advocacy ought to be conducted by a person offering specialist advocacy on a referral basis.

(2) In considering that question, the person concerned must have regard, in particular, to—

  1. (a) the relative cost to his client of obtaining advocacy services on a referral basis and of relevant alternative means of providing them; and
  2. (b) the degree of skill and experience which the circumstances require of the advocate.

(3) Where, before the advocacy in question is conducted, a person fails to comply with the duty imposed by subsection (1) but he or his firm nevertheless conducts that advocacy, neither he nor his firm shall be entitled to charge the client for that advocacy.'"').

The noble Lord said: This amendment seeks to require solicitors and other litigators, when advising clients who need an advocate to represent them in court, to consider whether it would be appropriate to instruct an independent advocate to represent them and to advise the client accordingly. If all solicitors are to gain full rights of audience, then they must be required to exercise those rights in a situation of full and fair competition. The Bar is a referral profession of advocates, depending for its involvement in criminal and civil cases on instructions from solicitors.

What is essential, if the Bar is to survive as a strong and independent profession—which the noble and learned Lord indicated he wishes to see—is that competition from other advocates in the solicitors' profession is fair. How will that be guaranteed? When the 1990 Act was enacted, the Bar cautioned that solicitors in the first contact with lay clients would be likely to tie in lay clients to advocacy by solicitors within solicitors' firms, denying the lay clients the specialist advocacy which the lay clients needed and imposing on the lay clients the high cost of solicitor advocates. By "tying in" we do not mean simply a formal condition imposed by the solicitor that the client must use the firm's advocacy services.

We are also concerned about the risk of a more insidious approach by firms of solicitors who may establish a policy that, unless it suits the firm, the client will not be given an informed choice of advocate. Clients may not be advised that they ought to consider the alternative of instructing a barrister, that it may be cheaper to do so and that there are specialist barristers in the field who are skilled and experienced advocates.

I am aware that the Law Society's practice rules require solicitors to advise clients of the respective advantages and disadvantages of advocacy by in-house solicitors and by banisters, with particular reference to costs, specialist skills and expertise. In theory, therefore, there are rules designed to deal with those concerns.

I remain anxious, however, that in practice those rules are often ignored. Solicitors combining advocacy and the conduct of litigation have a strong incentive to persuade clients to use an in-house solicitor advocate, even when a banister advocate would be more economical or more suitable or both.

For that reason I believe it essential that the law should provide that litigators should give clients proper advice in writing about whether or not they should use an independent advocate. I believe that failure to provide such advice should result in the litigator not being paid for the advice. That would bite particularly in contentious matters where the existence of the advice could be verified on taxation of costs by the court. I beg to move.

The Lord Chancellor

This is an extraordinarily bold amendment. Unless I am very wrong, I see the footprints of my friends in the Bar Council all over this amendment.

The amendment has something in common with those proposed to Part I of the Bill, which would have required the legal services commission to keep under review whether the interests of justice required particular kinds of service to be provided by banisters. This amendment would go considerably further. Its effect, essentially, is to require solicitor advocates to advertise to their clients the availability of barristers in private practice. That really is an intriguing proposition.

Attempts have been made to justify such a proposition by reference to the existing "tying-in" provisions of Sections 104 to 106 of the Courts and Legal Services Act 1990. These would prevent mortgage lenders from offering residential property loans as part of a package with other specified services—banking and financial services, estate agency services and conveyancing—without making it clear that the loan is separate from the provision of the services, and is available separately, and stating the price of the services offered. I say "these provisions would prevent", but they have not been brought into force. I understand that they are viewed as unworkable.

In any event, these existing tying-in provisions were designed to protect the public from paying inflated prices for mortgage loans, unaware that they were really paying for a package of ancillary services. Lenders are required to separate out any services they offer into their component parts and to price them separately. They are not required to advertise the services of their rivals.

By contrast, this amendment is designed to protect the Bar, not the public. It does not require solicitors to specify in advance how much they would charge for any advocacy services. It could hardly do so without imposing the same burden on the Bar. Rather it imposes the requirement to advertise the availability of barristers in private practice.

The amendment relates only to the higher courts, where, I suppose, the interests of the Bar in retaining the work exclusively is greater. I think that by and large the sort of clients who would go to the big City firms to fight litigation in the higher courts through in-house lawyers would be able to look after themselves.

Another startling aspect of this amendment is the lack of reciprocity it provides for. I see no obligation on barristers to advertise the availability, expertise and relative costs of solicitor advocates, even in the increasing number of cases which are sent directly to a member of the Bar and not referred by a solicitor.

This amendment must be seen for what it is. It is one of several which, in various ways, have either attempted to guarantee work for the Bar or protect the position of the Bar. I do not think that it is appropriate for its work to be guaranteed, either by the Government or by statute. Barristers must stand on their own feet and meet the challenge presented by such new competition as this Bill will open up. I have every confidence in the Bar's ability to thrive in a more competitive environment. But it must thrive because of the excellence of the service that it provides and the competitive prices that it charges—not because areas of work have been reserved for barristers in private practice and obstacles put in the way of their competitors; and not because they have to oblige their solicitors to advertise the services of the Bar. I hope that the noble Lord will agree to withdraw this amendment.

Lord Kingsland

The reply of the noble and learned Lord was uncharacteristically unsporting. The object of the amendment is not to give the Bar an unfair advantage but to ensure that there is fair competition for advocacy services. All it seeks to do—there may be other ways of doing it more effectively and less offensively—is to ensure that when a client decides that he requires an advocate on the balance of quality and price he receives the best service that is available.

There will be circumstances in which solicitors' firms will be inclined to bias matters unfairly in favour of in-house advocates. As I understand it, the noble and learned Lord the Lord Chancellor has a central objective in making these new rules; namely, to ensure that there is fair competition to provide the general public with a quality service at a reasonable price. Whatever the noble and learned Lord thinks about the wording of the amendment I hope that he will reflect upon its background. I look forward to seeing his own drafting efforts at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10 p.m.

Lord Goodhart moved Amendment No. 290:

After Clause 36, insert the following new clause—