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Access To Justice Act 1999 (Bar Practising Certificates) Order 2001
23 January 2001
Volume 621

7.45 p.m.

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rose to move, That the draft order laid before the House on 15th January be approved [3rd Report from the Joint Committee].

The noble Lord said: My Lords, the draft order before this House amends Section 46(2)(b) of the Access to Justice Act 1999 which currently restricts the purposes for which the General Council of the Bar may raise fees from the issuing of practising certificates to the purposes of the,

"regulation, education and training of barristers and those wishing to become barristers".

The basis for the proposed amendment to Section 46(2)(b) can be found in Section 46(3)(a) of the Act which provides that the Lord Chancellor may, by order made by statutory instrument,

"amend subsection (2)(b) by adding to the purposes referred to in it such other purposes as the Lord Chancellor considers appropriate".

Section 46 of the Act was intended by the Government to resolve the unfairness of the current system whereby some barristers do not contribute to the costs of regulation by the General Council of the Bar; regulation from which all barristers benefit. Section 46(1) of the Act enables the General Council of the Bar to make rules requiring all barristers to hold a practising certificate in order to practise, and requiring them to pay fees for those certificates. The intention behind this order is to extend the purposes for which these fees may be raised.

In contrast to the position of the General Council of the Bar, by virtue of Section 11 of the Solicitors Act 1974, the Law Society has long had the power to require solicitors to hold a practising certificate in order to practise, and to require solicitors to pay fees for those certificates. But the Law Society has not been restricted as to the nature of the purposes for which it sets those fees. As the noble and learned Lord the Lord Chancellor said during the passage of the Access to Justice Bill,

"our belief is that it is right in principle that a professional body should be able to spend money generated from compulsory subscriptions only on certain activities".

Section 47 of the Act provides for the Lord Chancellor, by order made by statutory instrument, to limit the

purposes for which fees may be raised by the Law Society to:

"(a) the purposes of the regulation, education and training of solicitors and those wishing to become solicitors, or
(b) both those purposes and such other purposes as the Lord Chancellor considers appropriate".

Such an order has yet to be made, but the noble and learned Lord the Lord Chancellor is currently considering an application from the Law Society which seeks to extend the purposes set out at Section 47(1) of the Act for which it may raise fees in the event that the Lord Chancellor exercises his power to amend the Solicitors Act 1974, thereby ending the ability of the Law Society to raise fees for any purpose. The purposes proposed by the Law Society are similar to those proposed by the General Council of the Bar. If the Lord Chancellor decides to approve the Law Society's application, he will lay a separate order before this House for its approval.

However, in the context of considering the order now before this House and the additional purposes sought by the General Council of the Bar, I draw your Lordships' attention to statements made by my noble and learned friend the Lord Chancellor when debating the implementation of Sections 46 and 47 of the Access to Justice Act 1999. He said:

"I make it clear to the House that 'practice support' or practice management and the 'raising and maintenance of standards' will be covered by compulsory fees for both the Bar and the Law Society. These activities are entirely compatible with the role of the regulatory body and should be included in any order made under any of these amendments".

He went on:

"Those functions of the Law Society and the Bar Council that we can agree are in the public interest will qualify for funding from compulsory subscriptions".

He also made the important point:

"The Government have no wish whatsoever to stifle the many useful functions in the public interest that both bodies currently perform and from which both the public and the Government benefit".

While the Access to Justice Act 1999 restricts the raising of fees from practising certificates to an amount necessary for the,

"regulation, education and training of barristers and those wishing to become barristers",

importantly it also includes a provision to extend those purposes to add,

"such other purposes as the Lord Chancellor considers appropriate".

The Lord Chancellor made it clear during the debates on the implementation of Section 46 in this House on 14th July 1999 that the wording of the Act was constructed in this way so as to avoid creating a vague and unalterable category of purposes for which fees might be raised. He made it clear that he would be prepared to consider extending those purposes listed in Section 46(2)(b) of the Act. He said:

"I much prefer agreeing activities that justify compulsory fees on a case-by-case basis to creating a rather vague and problematic category".

The General Council of the Bar has recognised the need for a clear statement of purpose in raising fees from barristers. Following discussions between officials of the Lord Chancellor's Department, the General Council of the Bar and the Legal Services Consultative Panel, the General Council of the Bar submitted an application to my noble and learned friend for the approval of rules made under Section 46(1) of the Act to prohibit barristers from practising unless authorised by a certificate issued by the General Council of the Bar. After taking advice from the Legal Services Consultative Panel and the designated judges, the Lord Chancellor has signalled his approval for the new rules to be made.

But the General Council of the Bar has also invited the Lord Chancellor to make an order under Section 46(3)(a) of the Access to Justice Act 1999 to add the following purposes to those specified in the Act for which fees may be raised: the participation by the General Council of the Bar in law reform and the legislative process; the provision by barristers and those wishing to become barristers of free legal services to the public; the promotion of the protection by law of human rights and fundamental freedoms; and the promotion of relations between the General Council of the Bar and bodies representing the members of legal professions in jurisdictions other than England and Wales.

My noble and learned friend is of the view that all of these activities, which are already undertaken by the General Council of the Bar on the basis of subscriptions from its members, are useful functions clearly in the public interest, and that provision should be made within the General Council's new practising certificate rules for them to continue to be undertaken on that basis. Having taken advice from the Legal Services Consultative Panel and designated judges as to the suitability of the proposed additional purposes and consulted the General Council of the Bar and parliamentary counsel as to the specific wording of the proposed amendment, my noble and learned friend has signalled his approval to the further purposes sought by the General Council.

The Lord Chancellor is aware that parliamentary approval of this draft order is required under Section 46(4)(b) of the Act. I believe that the provisions of this order which amends Section 46(2)(b) of the Act are compatible with the rights set out in the European Convention on Human Rights. Since an amendment of this nature adding to the purposes for which fees might be raised by the issuing of practising certificates was anticipated during the implementation debates on Section 46 in this House, and Section 46(3) makes specific provision for the exercise of these amending powers, I therefore invite the House to approve the order. I beg to move.

Moved, That the draft order laid before the House on 15th January be approved [ 3rd Report from the Joint Committee].—( Lord Bach.)

7.55 p.m.

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My Lords, during 1999 had the honour to be chairman of the Bar Council of England and Wales. That task required me to sit across to the right of your Lordships' Chamber beyond the Bar for many hours as this House debated reform of my profession. Of all the reforms that the Access to Justice Act 1999 achieved, this small step may turn out to be one of the most significant. The Bar is not a statutory body and, until this Act, did not have the power to require its members to pay an annual subscription. That they should, anyone else would regard as self-evident.

In the years since I was chairman, and, before that, my noble friend Lord Goldsmith, we sought to modernise the Bar. This step furthers that task. It is little known, but deserves mention, that by raising subscriptions the Bar can better serve the public interest. It does it in education by ensuring that members of the Bar who represent the public have achieved a reasonable measure of professional training. It also does it in regulation by a system of professional discipline which the legal ombudsman regards as the most successful of the schemes with which she must deal. Her assessment is that there is well over 90 per cent satisfaction in those cases where we deal with the public.

Last but not least is the importance of general education and training. The last time I looked at the Bar's annual budget about one third of its total income was spent on education and training. The order seeks to enlarge the purposes on which subscriptions and income can be spent. These purposes are not new but are characteristic of the Bar in times past.

It is little known but well recognised in government that the Law Reform Committee of the General Council of the Bar regularly submits private memoranda to government and civil servants about proposed changes in the law. That contribution has always been welcomed. It deserves to be better known—I am sure that my noble friend Lord Goldsmith will refer to it—that one of the main features of the Bar's services to the public is the provision of free legal services. The aspect to which I refer—I hope that my noble friend will mention the other with which he has closer connection—is the Free Representation Unit. Every young member of the Bar is encouraged to undertake work in representing the public at no cost to them.

The final matter may in years to come be very important. I refer to the international role of the Bar. Lawyers in this country, as in many others, are vilified day by day because of the obsessional media interest in what they earn. The fact is that solicitors and barristers achieve invisible earnings in this country and abroad of over £1 billion a year. The Bar plays its part in that achievement by expanding its relations with Bars in other countries around the world. I have mentioned just some of the purposes for which this order will allow subscriptions to be raised. I welcome unreservedly this extension. There are occasions when there is a happy union between government action and professional interest, and this is one such. I welcome the order and ask noble Lords around me to forgive me if I do not stay to listen to their contributions.

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My Lords, I declare three interests. First, I am a practising barrister who will have to pay these fees. Secondly, I am a former chairman of the Bar Council. It was some years ago, probably in my time, that this problem first came to a head and we had to grapple with the question of how to enforce subscriptions. Thirdly, for five years I was chairman, and am now president, of the Bar's Pro Bono Unit which is one of the organisations that benefits from assistance from the Bar Council. Since its inception that organisation has received over 2,000 applications for assistance from members of the public. More than one in 10 barristers agree to provide their services free and commit themselves for a minimum of three days a year. The income from the certificates will not be used to pay them in any way, but it is necessary to support the administrative expenses. In those respects the order represents a fair balance between the income the Bar Council will continue to raise on a voluntary basis for its representational activities and that raised through the practising certificate.

My noble friend the Minister said that regulation, which is what the Bar Council does, benefits all barristers. He went on to say that it benefits the public interest. That is what justifies the compulsory nature of the order.

I understand from the present chairman of the Bar that the Bar Council has agreed that its accounts will be subject to external audit after one year and every three years thereafter so that there is assurance that the split between voluntary and compulsory contributions is properly looked at. Subject to that matter, I agree entirely with my noble friend Lord Brennan and have nothing further to add.

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My Lords, I too have to declare an interest as someone who is likely to pay a compulsory fee for a practising certificate.

As both noble Lords who have spoken before me made clear—I have some trepidation in following two former chairmen of the Bar Council—this is a matter where the public interest is very much concerned. As the noble Lord, Lord Goldsmith, explained, the income of the General Council of the Bar will be divided into two main sources. One is compulsory income from practising certificates; the other is the voluntary subscriptions paid by members of the Bar. Up to now the majority of the Bar have paid voluntarily.

Income received from the voluntary subscriptions will be available to the Bar Council for what may be loosely called its professional, its trade union functions—advancing the professional interests of the Bar—rather than primarily for the purpose of protecting the public interest.

The compulsory income obviously should be devoted to the activities of the Bar Council which are in the public interest. I have no doubt that the regulatory functions contained in the Access to Justice Act are in the public interest. But it is necessary for the activities of the Bar to be regulated in the same way as are members of other professions.

The order contains a number of additional purposes for which money raised by practising certificate fees can be spent and which therefore can be taken into account when fixing the level of fees to be charged for practising certificates. As the noble Lords, Lord Brennan and Lord Goldsmith, have pointed out, the council participates actively in law reform and in the legislative process. It makes valuable contributions. I believe these are very much in the public interest.

Certainly, the provision of free legal services through the Free Representation Unit and through the Pro Bono Panel, in which the noble Lord, Lord Goldsmith, has played so important a part, are very much in the public interest. It is therefore wholly justifiable that the administrative costs of these should be paid by the compulsory practice certificate fees.

The promotion of the protection by law of human rights and fundamental freedoms is very much in the public interest. It seems entirely justified that, for example, the subvention paid by the Bar Council to the Bar human rights committee should be capable of being taken into account.

The final issue, the promotion of relations between the council and bodies representing the members of legal professions in jurisdictions other than England and Wales, caused me a little more difficulty. That issue comes much closer to the dividing line between the representational and the public interest functions.

It is perhaps not self-evident why it is necessarily in the public interest to pay for attendance by representatives of the Bar Council at, let us say, meetings of the Commonwealth law conference or the annual meetings of the American Bar Association or other similar regions. However, it seems to me that, in an age of globalisation, although these come close to the line, I am persuaded they are on the right side of it and that it is not only in the interests of the Bar itself, but in the interests of this country through encouraging, for example, the use of the English courts by foreign commercial lawyers and foreign commercial clients. Therefore, I give my support to this order and am happy to endorse it.

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My Lords, the outstanding contributions to this debate by the Minister, the noble Lords, Lord Brennan, Lord Goldsmith, and, Lord Goodhart, have mercifully left little for me to say.

Those of us who remember the passage of the Access to Justice Act will recall that there were occasions when the relationship between the Bar Council and the noble and learned Lord the Lord Chancellor was perhaps somewhat less than totally harmonious. Therefore, it gives me particular pleasure to hear two distinguished former chairmen of the Bar, the noble Lords, Lord Brennan and Lord Goldsmith, give this order their full support. I also give it my support. On 31st January when I pay my fee for my practising certificate I shall feel that I have fulfilled the wishes of all parts of your Lordships' House.

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My Lords, I am most grateful to noble Lords who have spoken, particularly to those who spoke briefly on the subject. I am grateful to the noble Lord, Lord Kingsland, for indulging us this evening by having the debate at this time. But I am more grateful for the support that all noble Lords have shown for the order, both from the Opposition parties, and particularly from my two distinguished noble friends who served the Bar so well during their time in office. It is a great boost for the order that both have spoken on it. All that is left for me to do—certainly not to rise to the bait about the Access to Justice Act which the noble Lord, Lord Kingsland, so temptingly puts before me—is to commend the order to the House

On Question, Motion agreed to.

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My Lords, I beg to move that the House do adjourn during pleasure until 8.40 p.m.

Moved accordingly and, on Question, Motion agreed to.

[ The Sitting was suspended from 8.9 to 8.40 p.m.]