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Legal Profession Reform

Volume 80: debated on Tuesday 11 June 1985

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3.30 pm

I beg to move,

That leave be given to bring in a Bill to make provision for the development of a more unified legal profession by enabling solicitors, as of right to exercise rights of audience in all courts and tribunals, civil and criminal, in England and Wales; to regulate and provide for advertising of pupillages and tenancies in barristers' practices and to enable barristers to establish practices anywhere in England and Wales with direct access to those seeking legal advice and when appropriate, representation, there being no mandatory intervention of any solicitor's or barrister's clerk or any other person whatsoever; to enable barristers and solicitors to practise together in any mutually acceptable form; to enable barristers to litigate for professional fees; to enable barristers to advertise; and to abolish the rank and title of Queen's (or King's) Counsel and the two Counsel rule
The first thing that we must do is summed up in the words
"let's kill all the lawyers",
as Dick said in Henry VI, part II. Ever moderate, and because some of my best friends are lawyers, I am not proposing to take that extreme course, but I am proposing to save the lawyers from themselves, and to save the consumer from them.

My Bill deals with three problems. The first is the ever-escalating scale of legal costs. In the BBC libel case it is estimated that of £900,000 of legal costs, £650,000 were fees. It worked out at £1,149.42 per day for QCs and £574.71p for their juniors. Secondly, the processes are slow, arcane, cumbersome and inefficient. Thirdly, the system is characterised by monopolies and restrictive practices that are at variance with the competitive ethose of the times. Too much is regulation by barristers for barristers.

Therefore, the first thing that my Bill does is give solicitors rights of audience in every court, thus ending the barristers' monopoly of the higher courts, which will be welcomed by most customers. After all, there is no point in having a Rolls-Royce when a Mini will do equally well. Most people prefer to be represented by someone who knows them, and knows their problems and their case, rather than by a total stranger who is thrust on them at the last minute, all too often on the day of the case itself. The rich can buy the barrister of their choice, but the poor get Murphy's law, and all too often Murphy himself.

The Bill will be welcomed by most solicitors. It allows those who want to specialise in advocacy to do so. Indeed, on 27 March last year, the Law Society launched a campaign to end the Bar's monopoly of advocacy. It said:
"citizens should be entitled to retain the advocate of their choice and not to have to employ more lawyers than are necessary for the case."
I say, "Hear, hear," to the Law Society, for once. I am afraid that the Law Society has gone a little quiet about it probably because of the threat by barristers that conveyancing will be handed to banks and building societies unless the Law Society lays off. I have to tell the Law Society that conveyancing will go to banks and building societies anyway, and the principle of equal access to the courts is right.

Secondly, the Bill abolishes the distinction of QC, a title conferred by the Lord Chancellor in his doubtless idiosyncratic and wholly undemocratic way, behind closed doors, with no appeal. It is essentially a mark of status. As one QC wrote to congratulate a newly appointed QC:
"You'll talk the same rubbish—but now they'll listen to you."
If people are going to charge higher fees, as QCs do, it should be for quality as designated by the market place, not for status. They should not be able to charge for a junior on half fees to milch the customer at the same time.

The third and most important part of my Bill will democratise the Bar. How wrong it is that we should have a self-selecting, self-regulating elite of some 4,800 barristers whose training is shorter, more amateurish and less adequate than that for solicitors. The profession is exclusive and amateurish, and there are rich rewards. I am talking of incomes of up to £250,000 a year, and even higher. Such incomes are showered on the top, while at the bottom penury prevails. There is a struggle for survival so intense that one has to have either private means or well-placed connections to get in and survive the starvation years.

The right hon. Lady the Prime Minister has testified to what a struggle that is. I was deeply moved in her biography by Penny Junor to read what a struggle the right hon. Lady had to get into chambers, and how much prejudice there was against a woman, just as there is now prejudice against blacks, and how Sir John Senter promised her a place in his chambers and then threw her out at the end of her pupillage, together with the present Secretary of State for the Environment. It was the right hon. Gentleman's first experience of abolition.

Many are called, but few are chosen, and especially not working-class provincials. Mr. Norman Lloyd, the careers officer at Manchester university, quotes one barrister as saying:
"My advice to working class students would be to avoid the bar at all costs."
Mr. Lloyd says:
"The entry route is an obstacle route so elaborate and so bizarre that it might have been invented by the producer of It's a Knockout."
He is right. That is why my Bill regulates pupillage to ensure that it is a proper training and that it is paid. That is why it regulates tenancies to ensure that they are advertised openly, encourages the co-operative pooling of fees, as in Lord Gifford's chambers, and stops exploitation by the head of chambers.

The Bill allows barristers to set up practices wherever they please even in co-operation with solicitors—as the Royal Commission on legal services recommended — without the intervention of barristers' clerks.

Barristers' clerks have been variously described as an untrained legal mafia or as barristers' pimps. They have been described as a "unique and disturbing breed" — unfortunately I forget where that quotation comes from —who manipulate the monopoly power of barristers, all too often for their own purposes because clerks take between 5 and 10 per cent. of all fees. They can earn from £30,000 to £100,000 a year, much of it from public money. Their power must be restrained, and my Bill proposes to do so.

The Bill allows barristers to set up anywhere without the necessity of having clerks. It allows barristers to take customers without going through the intermediary of a solicitor, as they can already take cases from abroad. It is interesting to note that barristers have girded their loins and revised their practices to deal with Common Market competition, but they will not give customers in this country the same benefit. The Bill allows barristers to advertise—something that solicitors have now begun to do, with great benefit to the profession and to the public.

Most other countries have a unified legal profession, and it works well for them. It would here. I see no reason for our obsession with keeping two or even three legal taximeters ticking over, shuffling papers and people to and fro, aggregating dramatis personae in cases, and with not setting up a common training for barristers and solicitors.

It is important to note that my Bill only opens the way to unification. It allows solicitors and barristers to work together in any way that suits them and their purpose. It does not enforce a unified profession.

The Bill keeps specialisation, but it eliminates its excesses. What is most important is that it opens the gateway to change at the Bar. It ends the rigidities and inflexibilities. It paves the way for a more democratic, open and efficient profession which can adjust to the times, because this Government of barristers have made a gospel of competition.

I am not seeking to inflict the same damage on the legal profession as the Government have on manufacturing, by the misguided application of competition. I am saying that the test of restrictive practices, wherever they are, must be public interest and not the convenience of a dreadfully complacent, conservative profession.

On that test, barristers need to be brought kicking, struggling and, no doubt, pleading into the 20th century if we are to have a healthier and more open profession and a better and cheaper service to the public. We want not a closed, proud, restrictive and exclusive profession, but one which serves people and protects their rights and liberties. That is what my Bill will provide for.

3.39 pm

I wish to oppose the Bill, but before doing so I wish to declare an interest. In a strange reversal of roles which may appeal to the hon. Member for Great Grimsby (Mr. Mitchell), I am able to say for the first time in my life that I am a solicitor briefed to appear on behalf of the Bar. Having said that, I must also say that many members of my branch of the legal profession must be surprised to see that a measure which at first glance may appear to benefit them should come from the hon. Member for Great Grimsby. After all, following his single-handed effort to break the solicitors' monopoly of conveyancing, his achievement may well be popular in certain quarters, but he is hardly the most popular toast at the annual dinner of my local Law Society.

The core and essence of the Bill is in the very first sentence, which says that solicitors should have the same rights of audience as barristers in all the courts. I freely accept that, if the House was minded to accept that part of the Bill, the other parts within it fall naturally into place. It would be quite illogical and unfair to give solicitors an equal footing with barristers in courts while at the same time imposing restrictions on barristers in relation to fee collection, partnership and access to the public.

I shall devote my main attention to that part of the Bill, except to say — en passant, as the hon. Member for Bolsover (Mr. Skinner) might also say — that the last sentence in the Bill, which calls for the abolition of the two-counsel rule, is just a tiny bit out of date, as I understand that it was abolished some years back.

There are three principal reasons why I invite the House not to extend the rights of audience which solicitors presently enjoy. First, when the last Labour Government set up a commission to examine the legal profession, they rightly framed its terms of reference to incorporate this very question. When the commission finally concluded its judgment—it had 15 members, of whom only two were barristers — its decision was very clear. Even more important than its clarity was the fact that it was helped in its deliberations by a wide process of consultation, not just with solicitors, barristers and the judiciary but with many organisations and people with connections in litigation. The commission concluded that the restriction of the rights of audience in the legal profession underpinned the profession and was in the public interest. That is why this Conservative Government accepted those recommendations.

I have heard nothing since that commission reported, and certainly nothing in the arguments of the hon. Member for Great Grimsby, which leads me to think that Parliament should now take a totally different course.

The second reason is that, paradoxically, I believe that the Bill will be detrimental to those whom it is apparently designed to assist — solicitors and members of the public. You, Mr. Speaker, may be aware of the dramatic changes that have occurred in solicitors' practices in the last few years. Those changes were well set out in a recent article in the Financial Times. We have seen the growth of major City of London firms which have concentrated to themselves an expertise almost exclusively in certain types of legal work. At the same time we have seen a tremendous extension of scope in the law and its practice.

All these developments have made it increasingly difficult for the average solicitor in the small and medium-sized firm to perform his vital role in his service to the community. That they are still able to do so is caused by a variety of factors. One of the main ones is that in this country there exists an independent and experienced Bar which is available to all solicitors, and hence to all clients, throughout the length and breadth of England and Wales.

The Bill would destroy that independent Bar and, in the wake of that destruction, would destroy many of the small and medium firms to which I have referred, driving their clients into the arms of the bigger firms. The vital role of the independent smaller solicitors practising in every constituency would become a thing of the past.

Finally, I ask the House to reject the Bill because I believe that it perpetuates a disturbing trend in our society —to attack, disparage and ultimately destroy excellence in our professions. No one in the House, not even the hon. Member for Great Grimsby, would dream of promoting a Bill to abolish the distinction between general medical practitioners and medical consultants. No one would deny that both those professions perform equal but different roles for their patients. The same is true of the legal profession. By and large, it serves the community well, with trust and integrity—something that cannot always be said of legal professions in other parts of the world.

Members of Parliament who are barristers can be expected to oppose the Bill and those who are solicitors are likely to view with suspicion a Bill about their profession which comes from the hon. Member for Great Grimsby. It should also be expected, however, that members of the public, who should be our prime if not our only consideration, will feel on mature reflection that they will be ill served by this measure. It is in their name, in their interests and on their behalf that I invite the House to reject the Bill.

Question put, pursuant to Standing Order No. 15 (Motions for leave to bring in Bills and nomination of Select Committees at commencement of public business):—

The House divided: Ayes 119, Noes 151.

Division No. 234][3.49 pm
Alton, DavidLeighton, Ronald
Atkinson, N (Tottenham)Lewis, Ron (Carlisle)
Barnett, GuyLitherland, Robert
Barron, KevinLloyd, Tony (Stretford)
Beaumont-Dark, AnthonyLofthouse, Geoffrey
Beith, A JLoyden, Edward
Benn, TonyMcDonald, Dr Oonagh
Bennett, A (Dent'n & Red'sh)McKay, Allen (Pemstone)
Boothroyd, Miss BettyMcTaggart, Robert
Boyes, RolandMadden, Max
Bray, Dr JeremyMarek, Dr John
Brown, R (N c tle-u-Tyne N)Mason, Rt Hon Roy
Bruce, MalcolmMaynard, Miss Joan
Callaghan, Jim (Heyw'd & M)Mikardo, Ian
Campbell-Savours, DaleMillan, Rt Hon Bruce
Canavan, DennisMiller, Dr M. S (E Kilbnde)
Cartwright, JohnMitchell, Austin (G't Gnmsby)
Clay, RobertMorris, Rt Hon A. (W'shawe)
Clwyd, Mrs AnnO'Neill, Martin
Cocks, Rt Hon M (Bristol SOwen, Rt Hon Dr David
Coleman, DonaldPark, George
Cook, Frank (Stockton North)Patchett, Terry
Corbyn, JeremyPavitt, Laurie
Cox, Thomas (Tooting)Penhaligon, David
Crowther, StanPike, Peterv
Cunliffe, LawrencevPowell, Raymond (Ogmore)
Dalyell, TarnPrentice, Rt Hon Reg
Davis, Terry (B'ham, H'ge H'l)Prescott, John
Deakins, Ericadice, Giles
Dixon, DonaldRandall, Stuart
Dormand, JackRoberts, Allan (Bootle)
Eastham, KenRobinson, G (Coventry NW)
Edwards, Bob (Wh'mpt'n SE)Rogers, Allan
Ellis, RaymondRost, Peter
Evans, John (St Helens N)Rowlands, Ted
Ewing, HarryRyder, Richard
Fallon, MichaelSedgemore, Brian
Fatchett, DerekSheerman, Barry
Fisher, MarkSheldon, Rt Hon R
Foot, Rt Hon MichaelShepherd, Richard (Aldndge)
Forsyth, Michael (Stirling)Short, Ms Clare (Ladywood)
Fraser, J (Norwood)Short, Mrs R (W'hampt'n NE)
Freud, ClementSkinner, Dennis
Gould, BryanSteel, Rt Hon David
Hamilton, James (M'well N)Stott, Roger
Hamilton, Neil (Tatton)Taylor, Teddy (S'end E)
Hamilton, W W (Central Fife)Thomas, Dafydd (Merioneth)
Hancock, Mr MichaelThorne, Stan (Preston)
Harman, Ms HarrietThurnham, Peter
Hart, Rt Hon Dame JudithTorney, Tom
Haynes, FrankTownend, John (Bridlington)
Heffer, Eric SWainwnght, R
Hogg, N (C'nauld & Kilsyth)Warden, Gareth (Gower)
Holt, RichardWelsh, Michael
Hoyle, DouglasWiggin, Jerry
Hughes, Dr Mark (DurhamWinnick, David
Hughes, Robert (Aberdeen N)Woodall, Alec
Hughes, Roy (Newport East)
Jessel, TobyTellers for the Ayes
Johnston, RussellMr Michael Meadowcroft and Mr. Ken Weetch
Jones, Barry (Alyn & Deeside)
Kirkwood, Archy

Adley, RobertAnderson, Donald
Aitken, JonathanAtkins, Robert (South Ribble)
Alexander, RichardBaker, Rt Hon K (Mole Vall'y)
Alison, Rt Hon MichaelBaldry, Tony
Ancram, MichaelBanks, Robert (Harrogate)

Batiste, SpencerLloyd, Peter, (Fareham)
Bennett, Rt Hon Sir FredericLord, Michael
Best, KeithMcCrindle, Robert
Biffen, Rt Hon JohnMaclean, David John
Biggs-Davison, Sir JohnMajor, John
Blaker, Rt Hon Sir PeterMalone, Gerald
Boscawen, Hon RobertMarshall, Michael (Arundel)
Bottomley, PeterMates, Michael
Boyson, Dr RhodesMather, Carol
Brandon-Bravo, MartinMaude, Hon Francis
Brittan, Rt Hon LeonMawhinney, Dr Brian
Brown, M. (Brigg & Cl'thpes) Mellor, David
Browne, JohnMolyneaux, Rt Hon James
Bruinvels, PeterMonro, Sir Hector
Buchanan-Smith, Rt Hon A. Moore, John
Budgen, NickMorris, M. (N'hampton, S)
Burt, AlistairMorrison, Hon C. (Devizes)
Butler, Hon AdamMorrison, Hon P. (Chester)
Carlile, Alexander (Montg'y)Needham, Richard
Cash, WilliamNeubert, Michael
Clark, Hon A. (Plym'th S'n)Nicholls, Patrick
Clark, Dr Michael (Rochford) Norris, Steven
Clark, Sir W. (Croydon S) Onslow, Cranley
Clarke, Rt Hon K. (Rushcliffe) Osborn, Sir John
Colvin, MichaelPage, Richard (Herts SW)
Coombs, SimonParkinson, Rt Hon Cecil
Cope, JohnPawsey, James
Cormack, PatrickPollock, Alexander
Corrie, JohnPowley, John
Crouch, DavidProctor, K. Harvey
Dicks, TerryRaison, Rt Hon Timothy
Dorrell, StephenRathbone, Tim
Douglas-Hamilton, Lord J. Renton, Tim
Dunn, RobertRhodes James, Robert
Durant, TonyRoberts, Wyn (Conwy)
Dykes, HughSainsbury, Hon Timothy
Edwards, Rt Hon N. (P'broke) Shaw, Giles (Pudsey)
Farr, Sir JohnSims, Roger
Favell, AnthonySkeet, T. H. H.
Fenner, Mrs PeggySmith, Sir Dudley (Warwick)
Fookes, Miss JanetSmith, Tim (Beaconsfield)
Fox, MarcusSoames, Hon Nicholas
Gale, RogerSpeed, Keith
Gardner, Sir Edward (Fylde) Stanbrook, Ivor
Garel-Jones, TristanSteen, Anthony
Glyn, Dr AlanStewart, Allan (Eastwood)
Ground, PatrickStewart, Andrew (Sherwood)
Gummer, John SelwynStewart, Ian (N Hertf'dshire)
Hamilton, Hon A. (Epsom) Stokes, John
Hargreaves, KennethStradling Thomas, J.
Harvey, RobertSumberg, David
Haselhurst, AlanTebbit, Rt Hon Norman
Havers, Rt Hon Sir MichaelTerlezki, Stefan
Hayes, J. Thatcher, Rt Hon Mrs M.
Hayward, RobertThomas, Rt Hon Peter
Henderson, BarryThompson, Donald (Calder V)
Hind, KennethThorne, Neil (llford S)
Hirst, MichaelThornton, Malcolm
Holland, Sir Philip (Gedling) Trippier, David
Irving, CharlesWaddington, David
Jenkin, Rt Hon PatrickWaldegrave, Hon William
Jones, Gwilym (Cardiff N)Wallace, James
Key, RobertWatts, John
King, Rt Hon TomWheeler, John
Knight, Gregory (Derby N) Winterton, Nicholas
Lamont, NormanWood, Timothy
Lang, IanYoung, Sir George (Acton)
Lawler, GeoffreyYounger, Rt Hon George
Lawson, Rt Hon Nigel
Lee, John (Pendle) Tellers for the Noes:
Lennox-Boyd, Hon MarkSir Ian Percival and
Lewis, Sir Kenneth (Stamf'd)Mr. Nicholas Lyell.
Li I ley, Peter

Question accordingly negatived.