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Legal Services Act 2007 (Approved Regulators) Order 2011

Volume 726: debated on Tuesday 5 April 2011

Motion to Approve

Moved By

That the draft order laid before the House on 14 March be approved. Relevant Document: 18th Report from the Joint Committee on Statutory Instruments.

My Lords, I presume that later in the consideration of the European Union Bill we will get on to the Schleswig-Holstein question. In the mean time, it is my responsibility to speak to the Motion to approve the Legal Services Act 2007 (Approved Regulators) Order 2011.

The power to make this order is in paragraph 17(1) of Schedule 4 to the Legal Services Act 2007. The order seeks to designate the Institute of Legal Executives—ILEX—so that it can allow its members to conduct litigation and regulate them in doing so. In practice, the extent to which ILEX will be able to deploy this right will be limited by its own regulatory framework, which will mean that the only ILEX members who can conduct litigation if this order is made will be associate prosecutors employed by the Crown Prosecution Service. The Legal Services Act classifies the conduct of litigation as a reserved legal activity that can be carried out only by a person who is either “authorised” or “exempted” by the Act. At present, associate prosecutors are exempted to carry out specific litigation.

ILEX has drafted specific rules that will set out the processes by which the work of associate prosecutors will be integrated into ILEX’s regulatory regime. Under these rules, associate prosecutors will be required to abide by ILEX’s code of conduct and undertake a specified amount of continuing professional development. In addition, ILEX will review and assess associate prosecutor training programmes. A memorandum of understanding has been agreed with the CPS that sets out the working arrangements for the regulation of associate prosecutors, including the handling of complaints, ILEX’s information requirements and a facility for ILEX to carry out its own inspections and reviews.

Both ILEX and the Legal Services Board have consulted on ILEX’s application for designation. The responses were broadly supportive, including those from other legal services regulators. In making its recommendation to the Lord Chancellor about this order, the Legal Services Board has satisfied itself that any issues arising from the consultation have been addressed.

In anticipation of this order, ILEX has applied to extend the scope of its regulatory framework so that it can grant a wider range of litigation rights to a wider range of its membership. It falls to the Legal Services Board to determine this application. Clearly, any extension to the range of ILEX practitioners who can conduct litigation independently could have a significant impact on the legal services market. The Legal Services Board has a statutory duty to promote competition within that market, so I would expect it to evaluate the potential impact carefully in considering ILEX’s wider application.

I commend this order to the House.

My Lords, I thank the Minister for bringing this order before us tonight. We are pleased to support the order, which naturally emerges from the Legal Services Act 2007. ILEX is already an approved regulator, but its powers as a regulator will now extend to regulating those who conduct litigation.

ILEX was recognised as an approved regulator as a result of the Legal Services Act 2007, the aim of which was to liberalise and modernise the regulation of the legal profession as well as to increase access to legal services. The Act moved away from self-regulation to independent regulation, which was a major step in improving consumer confidence in legal services. It was a very good piece of Labour legislation. At a time when we see daily restrictions on access to justice and the availability of legal services, there is a need to encourage the intention and practice of the Legal Services Act in broadening access where possible.

ILEX does an excellent job in regulating its part of the profession, and legal executives also do an excellent job in the services that they provide. Furthermore, this part of the profession draws from a wider social background than other parts of the profession—something that the strategy for social mobility, which was published today, could learn a lot from. This is a sensible proposal that will enable ILEX to regulate certain members who conduct litigation. I am sure that it will further improve the regulatory system.

It is right and proper that this measure is agreed to promptly and in time for implementation on 1 May. Once again, I am pleased to say that we fully support this measure tonight.

My Lords, I declare an interest as chair of the Legal Services Consumer Panel, which is an independent part of the Legal Services Board that recommended the order to the Lord Chancellor.

I warmly welcome the order, which will enable ILEX, as the body that regulates legal executives, to allow certain members to conduct litigation. The order is a notable first and is important for two reasons. First, it will permit associate prosecutors to be regulated by a professional body—the Institute of Legal Executives —in regard to the litigation work that they do. I believe that this arrangement will ensure that the consumer interest is reflected through these regulatory arrangements. Secondly, the order makes ILEX an approved regulator for litigation rights generally, which is a step on the way to ILEX empowering legal executives to provide litigation services to the public.

I would like to say a word about ILEX and its members, whom I hold in high regard. ILEX grew out of the old Solicitors Managing Clerks Association and has taken a real lead in diversity—in which I know the Minister takes a particular interest—in the profession. Three-quarters of ILEX members are women and 13 per cent are from black or ethnic minority backgrounds, compared with under 8 per cent in the population. Perhaps particularly important today, as my noble friend Lady Gale referred to, ILEX has provided a route to qualification as a lawyer for those who have neither started as a graduate nor had contacts in the profession. Indeed, just 2 per cent of ILEX members have a lawyer for a parent. ILEX has been a real beacon in providing “second chance” professional entry that is open to people from a wider range of backgrounds than many of our learned societies. Four out of five members do not have a parent who went to university. Very few ILEX members come from traditional legal or professional backgrounds.

Yet ILEX has created opportunities while firmly maintaining the standards of qualification. There are some 7,500 fellows of ILEX, who are subject to the code of conduct and all the same expectations of professional and personal standards and commitment to their clients as any other lawyer.

This order will help ILEX to continue to act as a gateway to the solicitors branch of the profession for a wide range of entrants. From a consumer perspective, it is a step towards clients having access to those from a wider social understanding and background, mixed with common sense and empathy. Your Lordships will understand why I am so supportive of this order—I recognise that not every lawyer is—but I am confident that, overseen as it is by the Legal Services Board, ILEX and its members will show themselves worthy of the new responsibility that they are about to get with this order.

It is a pleasure to follow the noble Baroness, Lady Hayter, in her recommendation of ILEX. We were talking earlier about social mobility. It is exactly as she says, ILEX has provided a route to professional qualifications for many people who did not have the background, and sometimes not the university background, which would enable them to qualify any other way.

In my youth, managing clerks were a very important part of the solicitors’ branch of the profession. They were highly experienced people but in those days they could not appear in court. It was always very useful to follow the advice and the instructions that they gave and to enjoy the personal connection that they had with clients. We have moved on since those days and we now give members of ILEX the opportunity to acquire audience rights, which they have exercised very competently. Associate prosecutors under the CPS have done a great deal of work that would otherwise occupy a great deal of time and money and involve qualified lawyers, which is unnecessary. I very much support this measure.

Advocacy is a skill that cannot really be taught: either you can do it or you cannot. Much of the ability to be an advocate is acquired through experience. I am sure that ILEX, in performing its training and regulatory function, will ensure that those who go into court are fully conversant not just with the law that they have to apply, and that they have the ability to stand on their feet and speak, but that they will have a knowledge of ethics because, so far as prosecution is concerned, legal ethics is a very important part of the responsibilities of the advocate. I think, for example, of the necessity to disclose fully any evidence that may be in the hands of the prosecutor which could assist the defence. These matters do not necessarily come to the mind of an untrained person. I look to ILEX to continue its excellent training function and to ensure that these associate prosecutors have the full competencies to enable them to fulfil their role. I very much support the order.

My Lords, I also support this statutory instrument. ILEX has well demonstrated that associate prosecutors can play a part in the criminal justice system. I endorse the important points that the noble Lord, Lord Thomas of Gresford, has made about advocacy and, very importantly, about ethics.

The noble Baroness, Lady Hayter, talked about this measure being a step and a progression. I mention a word of caution in this regard. ILEX has had enormous experience with managing clerks. Like the noble Lord, Lord Thomas of Gresford, when I was a young barrister I benefited enormously from the advice of the managing clerks, who often kept me straight in court. However, if they choose to move into another field outside crime such as the civil or family field, that ought to be viewed with appropriate caution. I note that the Explanatory Memorandum to the statutory instrument states:

“The Lord Chief Justice raised a concern that any potential future extension of APs’ rights must be subject to full consultation with the judiciary and other interested parties”.

Associate prosecutors have undoubtedly gained expertise in the field of prosecution but they have not gained it in either civil or family work, with which I am much more familiar. It is important that that matter should be considered by the Legal Services Board and, indeed, by the Lord Chancellor to ensure that associate prosecutors have the necessary expertise to take that next step, which should be taken with caution. However, in saying all that, I endorse entirely the suitability of the statutory instrument.

My Lords, I am very grateful to the noble Baroness, Lady Gale, for her welcome from the opposition Front Bench. I am not having a particularly good day at the Dispatch Box as I am told that I left out a very important part of my opening speech, which I will now give to the House.

At present, associate prosecutors are exempted to carry out specific litigation work under statutory designation by the Director of Public Prosecutions. However, this designation ends on 1 May this year. If replacement provisions are not made under this order, associate prosecutors will not be able to carry out unsupervised litigation work after that date. This represents a large proportion of the CPS workload in the magistrates’ courts, and direct supervision by Crown prosecutors would have a significant knock-on effect for the CPS’s higher court work. The consequences of this for the CPS, and the wider criminal justice system, would be considerable.

The forthcoming termination of the DPP’s designation of associate prosecutors was brought about by concerns expressed during the passage of the Criminal Justice and Immigration Act 2008 that associate prosecutors are not independently regulated or subject to a professional code of conduct. It was intended that arrangements should be made to bring them within ILEX’s regulatory and professional framework since ILEX is already an approved regulator for other reserved legal services. Therefore, a voluntary arrangement was made between the CPS and ILEX in 2008 which requires associate prosecutors to become members of ILEX in order to be designated by the DPP. In practice, therefore, all associate prosecutors have been subject to regulation by ILEX since that time. In essence, this order simply places that arrangement on a statutory footing.

I am grateful for a number of the comments that were made, particularly from the noble Baroness, Lady Hayter, in her capacity as chair of the Legal Services Consumer Panel. I have had brief contact with ILEX recently in connection with diversity. I am very pleased that the noble Baroness put on record the diversity which ILEX already represents, and to which other parts of the profession still aspire. It is important that we recognise that in its work and in these new responsibilities.

The noble Lord, Lord Thomas of Gresford, echoed that support for ILEX as a route to gaining professional qualifications and pointed to its success in promoting social mobility. That again echoes our earlier discussion. However, he gave a warning about the importance of training within ILEX. I am told that the training of prosecutors is to be conducted in accordance with ILEX’s rights of audience and litigation certification rules. AP qualification courses will be provided by the CPS. ILEX has satisfied itself that the CPS training programmes are fit for purpose. Under the memorandum of understanding, ILEX or persons appointed by it will periodically review the AP training programmes and assessment materials to make sure that they meet the criteria in the rights of audience and litigation certification rules. The CPS will notify ILEX of any proposed changes to its training programmes or the development of any new training modules. ILEX will review such materials to determine whether changes are consistent with the criteria in the rules.

The noble and learned Baroness, Lady Butler-Sloss, also made an interesting intervention. I am fascinated by the tributes that she and the noble Lord, Lord Thomas of Gresford, paid to managing clerks. My experience of this area is as an avid watcher of the recent television series “Silk”, in which the clerks seem to be the key movers in dramas that put politics into the shade. Perhaps that was done to attract an audience. However, the noble and learned Baroness put on record a matter that I will take back to my right honourable friend the Lord Chancellor. She said that the ambitions of ILEX to move into civil or family areas should be “viewed with caution”. I am sure that that will be the case as regards my right honourable friend the Lord Chancellor and other parts of the profession, although from what the noble Baroness, Lady Hayter, said, ILEX is progressing in building its professional capabilities.

In anticipation of this order, ILEX has already submitted an application to the Legal Services Board to enable it to allow suitably qualified members to conduct litigation in civil and matrimonial matters. However, the Parliamentary Under-Secretary of State for Justice has undertaken to draw to the Legal Services Board’s attention all the points made when this order was debated in the other place, so that the board can reflect on them in its consideration of ILEX’s application. I am happy to do the same in respect of this evening’s debate, in which a number of colleagues have made useful comments that will be of advantage to the Legal Services Board when it looks at this matter.

I hope that the debate has served to demonstrate that the specific arrangements made by ILEX, as an existing approved regulator, are appropriate for the purpose of authorising associate prosecutors in the conduct of litigation. Certainly I am satisfied that this is the case, based on the recommendations made by the Legal Services Board. I commend the order to the House.

Motion agreed.

Sitting suspended.

My Lords, noble Lords will know that Whips are multitasked. However, I feel that I would be trespassing on the indulgence of the House if I sought to take such an important amendment. Perhaps I might suggest that the House do adjourn during pleasure for—in fact, not even for a few seconds, because my noble friend Lord Wallace has timed his arrival to perfection.