HL Deb 10 November 1999 vol 606 cc1393-6

5.26 p.m.

Lord Bach rose to move, That the draft order laid before the House on 25th October be approved [29th Report from the Joint Committee].

The noble Lord said: My Lords, this order concerns the right to conduct litigation and rights of audience in England and Wales.

Historically, the right to conduct litigation has been the preserve of solicitors and rights of audience in the courts have been the preserve of barristers and to a lesser extent solicitors. Last year the Institute of Legal Executives became the third body to be authorised to grant its members rights of audience before certain courts. This order, if approved, will further extend rights of audience and rights to conduct litigation to a further category: the Fellows of the Chartered Institute of Patent Agents who have completed an LLM (Master of Laws) course entitled "Litigation Skills for Patent Agents". Fellows of the institute who are solicitors or barristers may be granted an exemption from completing the course.

The draft instrument was laid before the House on 25th October. Registered patent agents already have the right to conduct litigation and rights of audience before the Patents County Court and in matters on appeal from the Comptroller of Patents under the Patents Acts 1949 and 1977 to the Patents Court. This order will not affect the rights currently held. By this order the Chartered Institute of Patent Agents will become the second new authorised body for the purposes of Section 27 of the Courts and Legal Services Act 1990, and the first for Section 28 of the Act. The order will enable the institute to grant the right to conduct litigation in the Chancery Division of the High Court, including the Patents Court, and in the County Court, and to conduct appeals from the Patents County Court, the County Court and the Chancery Division of the High Court in respect of any matter relating to the protection of any invention, design, technical information or trademark or as to any matter involving passing off and any ancillary matter thereto. The order will also enable the institute to grant rights of audience in hearings in chambers or interlocutory matters ancillary to intellectual property litigation.

The institute will be able to grant these rights to suitably qualified Fellows who have completed the Litigation Skills for Patent Agents course. This new course will develop a knowledge base to supplement that already the subject of the examinations, which are conducted by the institute. The institute expects about 20 or so individuals to qualify initially, with the numbers increasing as more Fellows take the qualifying course in the future.

The authorisation of the institute so that it may grant these rights has been welcomed by those who have considered the application. It will extend rights of audience and rights to conduct litigation as was allowed under the 1990 Act. But, as the House will know well, the procedures under that Act have proved to be too cumbersome and susceptible to delay. That is why the Government have taken powers in the Access to Justice Act to reform the system of how future applications will be dealt with.

This application is also a deregulation measure. It will lead to clients of patent agents who need to use the courts to instruct and deal with one person. The patent agent will not have to instruct a solicitor and/or a barrister in order to progress his client's case. This should lead to lower costs for businesses, in particular small and medium-sized companies, by cutting out an unnecessary tier of expense. The patent agent will be able to go straight to court. I hope that this will be welcomed by all Members of the House.

The Access to Justice Act, which received Royal Assent in July, is a blueprint for change in how legal services are provided. All barristers and solicitors will acquire full rights of audience on call to the Bar or admission to the Roll. For the first time, advocates and litigators will have a statutory duty to act with independence in the interests of justice. In addition, the Bar Council and Institute of Legal Executives will become authorised bodies for the granting of rights to conduct litigation. The House will be happy to hear that those provisions came into force on 27th September last.

Further provisions in the Act, which will come into force in January next year, will change the way in which the bodies may become authorised to grant rights of audience and rights to conduct litigation; and how their rules governing these activities may be amended. The Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC) will be replaced by a new Legal Services Consultative Panel. The panel will have a similar role to ACLEC but the process for approving changes to the authorised bodies' rules will be simplified and improved. The panel will be more streamlined and consist of a chairman and about eight members as opposed to the 17 members of ACLEC.

The panel's general duty will be to provide the Lord Chancellor with any advice he requires about legal services, legal education and any other related matters. The panel will also take an active role in the maintenance and development of standards in the education, training and conduct of those who offer legal services. The panel will also be able to make reasonable requests of others, in formulating its recommendations to the Lord Chancellor.

The Act also confers upon the Lord Chancellor, with Parliament's approval, a new power to amend the qualification regulations or rules of conduct of an authorised body by order, if he considers it desirable to do so. He will be required to consult the panel, the Director-General of Fair Trading and the designated judges before doing so, and his order will be subject to parliamentary approval. This power will enable the Lord Chancellor to change on his own initiative unreasonable or restrictive rules on the part of a professional body. If in the future the institute wants to change its rules they will be subject to the Lord Chancellor's approval. This will ensure that the public is protected.

I have a few final words to say about possible complaints. One consequence of the success of the application we are discussing today is that we propose that Fellows who become authorised advocates or litigators should come within the jurisdiction of the Legal Services Ombudsman. That person oversees the handling of complaints about members of the legal professions. The support and advice of the ombudsman will be important in seeking to ensure that the standards of service by Fellows of the institute are maintained. A separate order to that effect has been laid before both Houses. The institute has its own complaints system; complaints about patent agents are dealt with by the Litigator Conduct Committee. I have confidence in the way that complaints are handled and I am sure the patent agents will not increase the burden on the ombudsman.

As the House knows, the Government are fully committed to ensuring that all new legislation is fully compliant with the Human Rights Act 1998; and I am satisfied that the provisions of this instrument are compatible with the convention. I commend the order to the House.

Moved, That the draft order laid before the House on 25th October be approved [29th Report from the Joint Committee].—(Lord Bach.)

Lord Phillips of Sudbury

My Lords, perhaps I may ask the Minister, who has explained the purpose of this statutory instrument very clearly, whether the chartered institute has the same protections for its clients as are provided by the arrangements in force vis-à-vis the Law Society and solicitors?

Lord Kingsland

My Lords, to do this order justice would require me, on behalf of the Opposition, to re-open the whole debate on the principles that lay behind the Access to Justice Act. However, I shall resist the temptation to do so. Your Lordships have passed the Access to Justice Act and this order is entirely consistent with the principles behind the Act. In those circumstances, and in those only, I find the order unexceptionable.

Lord Bach

My Lords, I am particularly grateful, as I am sure the House is, to the noble Lord, Lord Kingsland. Indeed, we have dealt with those matters. Like the noble Lord, I well remember the many hours that were spent pleasantly debating them during the earlier part of this year.

I want to ensure that the answer that I give the noble Lord, Lord Phillips of Sudbury, is appropriate. I am advised that the protection is the same as would be the case with private solicitors or barristers. The Litigator Conduct Committee, to which I referred, has similar powers to those held by the various Law Society bodies which look after discipline. I hope that that answer gives the noble Lord some comfort.

Lord Phillips of Sudbury

It does, my Lords. However, perhaps I may mention the indemnity fund provisions that are available to the clients of solicitors. Can the noble Lord say whether there is an indemnity fund provision available in the case of the chartered institute? Perhaps the Minister would like to return to that issue.

Lord Bach

My Lords, I am grateful to the noble Lord. As I understand it, the answer to his question is, "Yes". However, as this is an important question, I would prefer to look into the matter and write to the noble Lord in due course.

On Question, Motion agreed to.