§ Mr. McNamaraasked the Secretary of State for Prices and Consumer Protection when she expects to publish the reports of the Monopolies and Mergers Commission on (a) the supply by Her Majesty's counsel alone of their services and (b) the supply by senior counsel alone of their services.
§ Mr. John FraserThe reports are being published today. The commission's investigations were confined to agreements and practices relating to restrictions on the supply by Her Majesty's Counsel (QCs) alone of their services in England and Wales and by Senior Counsel alone of their services in Scotland. These restrictions are generally known as the "two counsel" rule at the Bar. The differences between English and Scottish law necessitated two separate references. However, the commission found that the effect of the rules of both Bars was broadly similar and, therefore, its recommendation is virtually the same in each report.
The commission concluded that restrictions in England and Wales on the supply by QCs alone of their services—which were observed by the whole body of barristers—prevented QCs from competing with each other and with junior counsel by performing certain services on their own. For example, a QC is not allowed to appear in a court of law without a junior: or, with certain exceptions, to draft a document other than in conjunction with a junior; and where papers are delivered simultaneously to both a QC and a junior, the QC cannot advise except in consultation with the junior. The comission therefore concluded that a monopoly situation existed in England and Wales in that banisters' services are all supplied by persons who so conduct their affairs as to restrict competition.
Similarly, the commission concluded that there were restrictions in Scotland—accepted by all advocates who were members of the Faculty of Advocates—which 544W prevented Senior Counsel from competing with each other and with junior counsel by performing certain services on their own. For example, a Senior Counsel cannot appear before a civil court without a junior, although he is entitled—but not obliged—to appear alone before a criminal court; also a Senior Counsel is not allowed to draw up or revise plead ings in any court unless junior counsel is instructed to act with him. The commission therefore concluded that a monopoly situation also existed in Scotland.
The commission further concluded that the two-counsel rule restrictions in England and Wales and in Scotland had a detrimental effect on the public interest in that on occasions they involved unnecessary expense to litigants and wasted juniors' time. They noted also that they could lead to delays in arranging court appearances, and represented a restriction of choice for clients.
The commission recommended that all existing provisions which precluded QCs in England and Wales and Senior Counsel in Scotland from acting without a junior should be terminated. They considered that for the future the decision that a QC or Senior Counsel requires a junior for any particular case should be a matter for discussion between client, solicitor and counsel.
However, although it did not think it necessary to have any new rules on the subject the commission none the less thought it desirable that there should be a general understanding in future that a QC or Senior Counsel should be able in any particularly case to request the assistance of a junior at any stage in litigation to enable the QC or Senior Counsel to devote his time to the more difficult aspects of the case. Also it considered that it should be recognised that in the ordinary course of events interlocutory work in England and Wales—that is work on proceedings after a writ has been issued but before the actual court hearing—and pleadings in Scotland should be handled by juniors though this should not prevent QCs or Senior Counsel undertaking this work if desirable, either alone or assisted by a junior.
The commission concluded that the abolition of the present two-counsel rules 545W would not significantly affect the training opportunities open to juniors. Nor would the two-tier system be undermined, or the "cab rank" rule—whereby counsel cannot refuse to act for a litigrant no matter how unattractive he, or his case, may be—be likely to operate so as to compel QCs and Senior Counsel against their wishes either to act on their own, if they considered that a case required two counsel, or to take on cases appropriate for juniors
My right hon. Friend accepts the recommendation of the Monopolies and Mergers Commission that all existing provisions which preclude QCs in England and Wales and Senior Counsel in Scotland from acting without a junior should be terminated. She shares the commission's view that for the future the decision whether a QC or Senior Counsel requires a junior for any particular case should be a matter for discussion between client, solicitor and counsel.
My right hon. Friend is, therefore, asking the Director General of Fair Trading to discuss with the relevant professional bodies the termination of the two-counsel rules in England and Wales and in Scotland, and also to discuss with them whether any new understandings or guidance might seem called for on any matters arising from the abolition of the rules.