. 32
( 34)


Quarterly, 1961, pp. 103“22; and F.A. Mann, ˜Fusion of the Legal Profession™, Law Quarterly
Review, July 1977, p. 367. For the history see J. Forbes, ˜Division of the Profession: Ancient or
Scienti¬c™, Law Society™s Gazette, 26 January 1977, p. 67.
784 The legal profession

profession was in the public interest.211 It seemed improbable that this verdict
would be overturned. The relevant Green Paper in 1989 proposed that barristers
and solicitors should be permitted to form partnerships with each other and the
Courts and Legal Services Act 1990, s. 66 permitted both barristers and solicitors
to enter into partnerships with, respectively, non-barristers and non-solicitors.
But it also speci¬cally permitted the Law Society and the Bar Council to make
rules prohibiting their members from entering into such partnerships and both
branches had such rules. The 1990 legislation left it to the profession to regulate
the matter and with both branches of the profession strongly opposed to ˜fusion™,
the issue did not seem to be a live one. The fact that the OFT did not deal with
the question in its 2001 report on restrictions on competition in the professions
con¬rmed this view. Implementation of the Clementi Report by the Legal
Services Act 2007 is unlikely to change the position. Even if the Legal Services
Board were one day to require the two branches to abolish their rules forbidding
private practice partnerships between barristers and solicitors, one cannot
imagine many taking advantage of the possibility. The overwhelming majority
of barristers and solicitors clearly favour the divided profession and it seems safe
to predict that it will continue into the inde¬nite future.

Rights of audience for lawyers
The battle between barristers and solicitors over rights of audience in the higher
courts has over the years been the issue between the two branches of the legal
profession that has provoked sharper di¬erences than any other. The right of
audience is a technical term meaning the right to appear for a client as an advo-
cate in a court or tribunal. Traditionally the question of who can appear as an
advocate in an English court was decided by the judges.212 From the nineteenth
century, Parliament also became involved through legislation. (Thus, for
instance, since their establishment in 1846, legislation provided that both bar-
risters and solicitors have the right to appear as advocates in the county courts.)
In recent years the battle expanded beyond the respective interests of barristers
and solicitors in private practice to the question whether rights of audience in
the higher courts should be given to employed lawyers and especially those
employed by the Crown Prosecution Service.
In 1979, the Benson Royal Commission, by a bare majority of eight to seven,
recommended that the Bar should retain its ancient monopoly over the right of
audience in the higher courts. Ten years later in 1989 the Green Paper proposed
instead that the right to appear as an advocate should be based not on status as
a barrister or a solicitor but on individual quali¬cation for the particular court.
The test should be whether the relevant professional body had been authorised

Benson Report, 1979, Cmnd. 7648, Ch. 17, pp. 187“202.
For a helpful modern review of the history and the cases see Abse v. Smith [1986] QB 536,
[1986] 1 All ER 350.
785 Reform of the profession “ current issues

to certify advocates and whether the individual had the prescribed quali¬ca-
tions. Lay advocates could also be given rights of audience.
However, after furious debate, the 1989 White Paper more or less abandoned
the 1989 Green Paper approach. The White Paper proposed that the members
of both professional bodies would be deemed to enjoy their existing rights of
audience. Thus, on quali¬cation, barristers in private practice would have full
rights of audience in all the courts, solicitors in private practice would have their
existing rights of audience in the lower courts and such other rights of audience
in the higher courts as they already enjoyed and lawyers employed other than
in private practice would only have rights of audience in the lower courts.
However, additional rights of audience could be sought by the Law Society
and by bodies representing employed lawyers, or even by bodies representing
non-lawyers. The White Paper laid out a complex process by which such claims
would be handled.213
This scheme was translated into law in the Courts and Legal Services Act 1990
(CLSA) subject to the requirement that decisions ful¬l the ˜statutory objec-
tive™214 and the ˜general principle™.215
As soon as the CLSA received Royal Assent, the Law Society put in its appli-
cation for additional rights of audience and, shortly after, a second application
was put in by the Head of the Government Legal Service and the Director of
Public Prosecutions on behalf of Government lawyers and the CPS respectively.
There then ensued a tortuous process lasting several years. (The story was
told by the writer in some six pages in the 8th edition of this work and at much
greater length elsewhere.216) In brief, in 1993 solicitors won the right to qualify
as advocates in the higher courts.217 The Lord Chancellor and the Lord Chief

The claim had to be put to the Lord Chancellor who referred it to his Advisory Committee on
Legal Education and Conduct (ACLEC). If ACLEC approved, it then had to be approved by
the Lord Chancellor with the concurrence of four senior judges (the Lord Chief Justice, the
Master of the Rolls, the President of the Family Division and the Vice-Chancellor of the
Chancery Division). The Lord Chancellor and the four judges had to consider the matter
˜having regard™ to the views of the Advisory Committee. Each judge had to agree; each
therefore had a veto. Failure to agree had to be explained in written reasons (which were
subject to judicial review for unreasonableness). In addition, the question had to be referred
to the Director General of the O¬ce of Fair Trading for his assessment from the point of view
of competition policy.
Section 17(1) stated: ˜The general objective of this Part is the development of legal services
. . . by making provision for new or better ways of providing such services and a wider choice
of persons providing them, while maintaining the proper and e¬cient administration of
Section 17(3) stated: ˜As a general principle™ the question whether a person should be granted
a right of audience or be granted a right to conduct litigation had to be determined by
reference ˜only™ (emphasis supplied) to four considerations: quali¬cations, being a member of
a professional body capable of enforcing rules of conduct, whether it had an equivalent to the
Bar™s cab-rank rule and whether the rules of conduct were ˜appropriate in the interests of the
proper and e¬cient administration of justice™.
M. Zander, ˜Rights of Audience in the Higher Courts in England and Wales since the 1990
Act: What Happened?™, 4 International Journal of the Legal Profession, 1997, pp. 167“196.
786 The legal profession

Justice greatly irritated the solicitors™ branch when they decided in 1994 that
solicitor advocates in the higher courts could not wear wigs “ a decision that
stands to the present day and that still rankles.218
After much further argument, in February 1997, the Conservative Lord
Chancellor announced acceptance of the Law Society™s request for extended
rights of audience for employed solicitors subject to certain conditions. The Bar
requested the same extension for employed barristers but, whilst this was under
consideration, Lord Irvine, the new Labour Lord Chancellor, announced that
he would be introducing major changes in the system for granting rights of
audience. He was clearly frustrated both by the cumbersome nature of the
vetting system under the CLSA 1990, at the low take-up of their new rights of
audience by solicitors219 and at the barriers put in the way of employed lawyers.
The quali¬cation rules for solicitors would be eased. Employed lawyers would
basically be given the same rights of audience as lawyers in private practice. The
Lord Chancellor™s Advisory Committee (ACLEC) would be abolished. The pro-
posal to give employed lawyers (i.e. CPS employees) the right to have full rights
of audience provoked huge controversy and focused especially on whether CPS
advocates could be su¬ciently independent.220
The Lord Chancellor™s promise (or threat) was implemented by the Access to
Justice Act 1999. Section 36 provided that every barrister and every solicitor has
rights of audience in all the courts ˜exercisable in accordance with the quali¬-
cation regulations and rules of conduct™ of the Bar Council and the Law Society.
These regulations were promulgated in March 2000 (see below).
AJA 1999, s. 37 added that quali¬cation regulations were invalid insofar as
they imposed special restrictions on employed lawyers as to the courts or the
cases in which the right of audience could be exercised. The Lord Chancellor
attempted to meet concerns about the independence of employed lawyers by
s. 42 which stated that everyone exercising rights of audience ˜has (a) a duty to
the court to act in the interests of justice; and (b) a duty to comply with rules of
conduct of the body relating to the right and approved for the purposes of this
For the original regulations laying down the mode of quali¬cation for extended rights of
audience for solicitors in private practice see Law Society™s Gazette, 17 December 1993,
pp. 29“30.
See Practice Direction (Court Dress) “ The Times, 20 July 1994. On the history of the wigs see
J.F. McLaren, ˜A Brief History of Wigs in the Legal Profession™, 6 International Journal of the
Legal Profession, 1999, pp. 241“50. (In 2003, the LCD initiated a consultation exercise on
court attire including wigs “ see Counsel, June 2003, p. 5. For the results of the Bar™s own
survey, in which 3,751 barristers took part, see Counsel, July 2003, pp. 21“2.)
He was quoted as saying of the low take-up: ˜There must therefore be a question whether
solicitors have a signi¬cant appetite to become advocates™. (Law Society™s Gazette, 17 February
2000, p. 4.)
Unsurprisingly, the Bar and the great majority of judges strongly opposed the change. For a
sceptical view see also M. Zander, ˜Will the Reforms Serve the Public Interest?, 148 New Law
Journal, 3 July 1998, p. 969. For the contrary view see for instance A. Darlington, ˜The CPS
and Rights of Audience™, New Law Journal, 1997, p. 1395. Both Lord Bingham, then Lord
Chief Justice, and Lord Woolf, then Master of the Rolls, supported the change “ see House of
Lords, Hansard, vol. 595, 14 December 1998, cols. 1125“6 and 1153.
787 Reform of the profession “ current issues

section; and those duties shall override any obligation which the person may
have (otherwise than under the criminal law) if it is inconsistent with
them™.(The Explanatory Notes said this meant that an advocate must refuse to
do anything that is not in the interests of justice.)
Where under the 1990 Act the four designated senior judges had a veto over
any changes to rights of audience or rules of conduct, under the 1999 Act they
merely have to be consulted.221 Sir Sydney Kentridge QC, one of the most dis-
tinguished members of the South African as well as of the English Bars, wrote
that implementation of the proposals to transfer the power over rights of audi-
ence from the judges to a Cabinet Minister ˜would constitute a quiet constitu-
tional revolution™. The Lord Chancellor would be able to change the rules
without the consent either of the Bar or of the judges “ ˜a decision which could
seriously undermine the independence of the Bar, and in the hands of another
Lord Chancellor less committed to the independence of the Bar, destroy it™.
During apartheid in South Africa there were frequent threats from the
Government to place the Bar under the control of a central council with
Government nominated members. ˜This proposal was consistently and suc-
cessfully resisted by the whole of the Bar . . . It was well understood that to
remove the control of the profession from the provincial Bar Councils and
General Council of the Bar would have meant the end of the independence of
the profession™.222
The e¬ect of the changes Take-up by solicitors of the new right to seek rights
of audience in the higher courts was slow. The ¬rst solicitor to appear in the
higher courts did so in February 1994. By 2000, when the regulations under the
AJA 1999 were being worked out, the number of solicitors who had quali¬ed
for rights of audience in the higher civil or higher criminal courts or both was
only some 1,000. (Over two-thirds (69 per cent) had quali¬ed for criminal pro-
ceedings, 15 per cent had quali¬ed for civil proceedings and 16 per cent had
quali¬ed for both civil and criminal cases.)
Research conducted for ACLEC before the AJA 1999 suggested that this
somewhat sluggish start to the new era of rights of audience in the higher courts
for solicitors was unlikely to alter swiftly. There were many reasons. One was the
cost of quali¬cation which had risen from £2,000 in 1994 to some £4,000.
Another was the di¬culty of the exam. (In September 1995 only 29 per cent of
the ¬fty-three candidates passed the evidence and procedure test.223) For City
¬rms, one reason was the problem of enabling their members to get the
required ˜¬‚ying hours™ of advocacy in the lower courts when such ¬rms rarely
had cases in those courts. City ¬rms argued that they should be allowed to train
AJA 1999, Sch. 5, paras. 5 and 6.
S. Kentridge, ˜A Quiet Revolution?™, Counsel, December 1998, p. 24. See also R. de Wilde, ˜A
Constitutional Issue “ the Judges and the Bar™, 148 New Law Journal, 2 October 1998, p. 1424
and Lord Ackner powerfully supporting the same view, ˜More Power to the Executive?™, 148
New Law Journal, 16 October 1998, p. 1512. See also to the same general e¬ect M. Zander,
˜More Louis XIV than Cardinal Wolsey™, 148 New Law Journal, 24 July 1998, p. 1084.
Law Society™s Gazette, 14 February 1996, p. 1.
788 The legal profession

their members themselves.224 But the main reasons were that solicitors did not
yet see higher court advocacy ¬tting in with their way of practising and that they
preferred to continue to use the Bar.225
Implementation of the rights of audience provisions in the AJA 1999 did
result in a simpler, cheaper system of quali¬cation for solicitors. The Higher
Rights Quali¬cation Regulations 2000 provided for three routes to quali¬cation:
• Exemption “ For solicitors who have practised as barrister or solicitor for at
least three years and who can demonstrate some experience of advocacy in the
higher courts as well as extensive experience in the lower courts.
• Accreditation “ For solicitors who have practised for three or more years as a
barrister or solicitor who by reason of their experience of litigation in the
higher courts have a sound understanding of the applicable procedure, evi-
dence and ethics can apply for a Certi¬cate of Eligibility to attempt an
Advocacy Assessment. And
• Development “ Training and assessment in higher court procedure, evidence,
ethics and advocacy skills plus one year™s litigation and advocacy experience
working with a mentor. Six months of the year can be during the solicitor™s
training contract period.226
From January 2007 only the third of these routes will be available.227 For further
details see the Law Society™s Website.228
By 2006, about a ¬fth of the 2,700 CPS solicitors had quali¬ed for rights of
audience in the higher courts.229 (Of these, a little over half had criminal cer-
ti¬cates, just over 20 per cent had civil certi¬cates and a quarter had both.)
However, no hard information is available regarding the crucial question as
to how often such rights of audience are actually being used by solicitors.230
There were signs that some ¬rms were developing advocacy training on a

The Lawyer, 6 February 1996. In 1998 the Law Society eased the problem by agreeing a third
training route to quali¬cation by use of a discretion with regard to advocacy experience in the
lower courts. See The Lawyer, 28 April 1998, p. 3.
See ˜Solicitor Advocates no Threat to Bar™, Solicitors™ Journal, 15 November 1996, p. 1092; G.
Davis et al, ˜Solicitor Advocacy and Higher Court Rights™, 147 New Law Journal, 14 February
1997, p. 212; M. Zander, ˜The Long Shadow of the Bar™, 148 New Law Journal, 2 October
1998, p. 1422; L. Hickman, ˜A Higher Calling™, Law Society™s Gazette, 5 May 2001, p. 38. See
also R. Kerridge and G. Davis, ˜Reform of the Legal Profession: An Alternative Way Ahead™, 62
Modern Law Review, 1999, pp. 807“23.
See L. Flannery, ˜Expanding your Portfolio: Training as a Solicitor Advocate™, 155 New Law
Journal, 11 March 2005, p. 367.
Originally the cut-o¬ date was 31 October 2005 but an extra year was added for the
exemption route at the request of the CPS “ see Law Society™s Gazette, 29 September 2005,
p. 5; 155 New Law Journal, 4 November 2005, p. 1654.
www.lawsociety.org.uk “ Contents “ Law Society Members “ Our services (Specialist Panels) “
Rights of Audience in the Higher Courts.
The 2004“5 annual report gave the ¬gure as 544 of 2,723 prosecutors.
For the Scottish experience with similar reforms see G. Hanlon and J.D. Jackson, ˜Last Orders
at the Bar? Competition, Choice and Justice for All “ the Impact of Solicitor Advocacy™, 19
Oxford Journal of Legal Studies, 1999, pp. 555“82.
789 Reform of the profession “ current issues

signi¬cant scale.231 In 2005, Herbert Smith hired two QCs to head-up the ¬rm™s
specialist advocacy unit.232 The unit had forty-three solicitor advocates and
another forty who were in the process of obtaining the higher rights quali¬ca-
tion. The ¬rm hoped to be the ¬rst to be accredited to provide its own higher
rights training.233 In September 2006 it was reported that Evershed had followed
Herbert Smith™s lead to become the second major UK ¬rm to launch a dedicated
in-house advocacy service with the hire of the most senior junior barrister from
Fountain Court Chambers.234 But so far at least, use of these higher rights of
audience has been on a modest scale. A solicitor-advocate, lamenting the ˜dis-
turbing lack of progress in the trial arena and at the higher end of the advocacy
spectrum™, said it was due to ˜a failure to overcome the traditional and ingrained
brie¬ng habits, and an unnecessary degree of deference to the Bar™.235 In the
writer™s view, this is likely to continue.
The position with regard to the CPS is somewhat di¬erent as it is a national
organisation which can operate a national policy to use its own employees as
advocates instead of the independent Bar. There are indications that this is hap-
pening. In a speech in May 2006 the DPP, Ken Macdonald QC, said:
The public prosecuting authority, so that we can have more ownership of our
cases, and so that I can hold my prosecutors more accountable for their deci-
sions, are going to do much more Higher Court advocacy than we have tradi-
tionally done, and already we see the di¬erence that™s having, in terms of the
desire that people outside have to join us. For the ¬rst time ever we now have
waiting lists around the country, of lawyers in private practice, who want to join
the CPS, and when we recently announced twenty-¬ve places on a legal trainee
scheme nationally, to graduates of law schools, we received, within three and a
half weeks, two and a half thousand applications.236
This development is obviously threatening for the Criminal Bar. In March 2006
the DPP and the Chairman of the Bar set up the CPS/Bar Advocacy Liaison
Group to provide a forum in which the CPS and the Bar can raise related advo-
cacy and service-delivery issues. In November 2006, the Group published the
CPS/Bar Framework of Principles for Prosecution Advocates.237 The Framework
The Bar understands that the CPS wishes to increase the number of in-
house prosecutors with higher rights of audience and also to deploy in-house

˜Top City Firms take Advocacy In-house™, Law Society™s Gazette, 30 March 2000, p. 1; ˜City Firm
joins Advocacy Trend™, Law Society™s Gazette, 6 April 2000, p. 1; ˜Advocacy Training Courses
attract the Interest of Mid-sized Commercial Firms™, Law Society™s Gazette, 22 June 2000, p. 9;
˜Linklaters to Introduce its own Advocacy Quali¬cation™, Law Society™s Gazette, 17 August 2000,
p. 8; ˜The Best of Both Worlds™, The Lawyer, 11 March 2002, p. 27; and more generally N.
Armstrong and D. Urpeth, ˜Solicitor Advocacy™, New Law Journal, 2 June 2000, p. 835.
The QCs had to take the Quali¬ed Lawyers Training Test to be admitted to the Roll of
Solicitors. Law Society™s Gazette, 28 April 2005, p. 5; 27 October 2005, p. 25.
The Lawyer, 25 September 2006, p. 1.
M. Hardie, ˜Giving up Old Habits™, Law Society™s Gazette, 27 October 2005, p. 14.
236 237
Speech at King™s College London, 23 May 2006. Accessible via Google.
790 The legal profession

prosecutors more often on the full range of case types in the Crown Court. This
will provide career opportunities for employed barristers but will inevitably
a¬ect the amount of work available to the self-employed Bar.
The CPS recognises that the self employed Bar provides a valuable service to
the CPS by o¬ering high quality self employed barristers to undertake prosecu-
tion work. Self employed barristers bring wide experience and understanding to
their prosecution work and the CPS is determined to ensure that there remains
a ¬‚ourishing self employed Bar with barristers of skill and ability at all levels who
are willing and able to play their part in prosecuting a full range of work for the
The Framework sets out the intended working arrangements between the CPS
and the independent Bar. Thus, for example, if the case is likely to be contested,
a barrister instructed to conduct the trial should also conduct the Plea and Case
Management Hearing (PCMH). Where this is not possible, the Framework
states that that the CPS must be informed at the earliest opportunity to permit
alternative arrangements to be made. This might involve instructing a CPS
advocate as replacement. On the vexed issue of returned briefs, the Framework
states: ˜It is the intention of the CPS and the Bar that only rarely should PCMH
briefs be returned and only in very exceptional circumstances should a trial
brief be returned.™238
A CPS pilot scheme for extending advocacy in the Crown Court in
Hampshire and Hertfordshire led to complaints in 2005 from the Criminal Bar
Association that the CPS were ˜cherry-picking work™.239 Commenting, the Law
Society™s Gazette pointed out editorially: ˜The Bar is right to say that the CPS, as
a public body, must show that handling cases in-house o¬ers better value for
money. If this then allows CPS lawyers to cherry-pick their cases (which it
denies in any case), well “ why not?™240
As to whether CPS advocates are competent, the HM Chief Inspector™s
Annual Report on the CPS for 2001“2 stated that inspectors saw 187 advocates
perform. The general level of performance was good. About half were rated
˜competent in all respects™, about 25 per cent were rated ˜above average in some
respects™ and about 10 per cent were ˜very good™. Under 10 per cent were ˜less
than competent™ or ˜very poor™.

Rights of audience for non-lawyers
The 1989 Green Paper had suggested that bodies other than lawyers could be
authorised to licence advocates in the courts. This was con¬rmed in the 1989
White Paper and was re¬‚ected in the machinery of the CLSA 1990 described
above. A body representing, say, accountants, surveyors or patent agents could

It would be remarkable if this was achieved. In the Crown Court Study, 59 per cent of
prosecution barristers said their brief had been returned by another barrister and the CPS said
that the brief had been returned in 66% of cases. (1993, Sect. 2.1.6, p. 32.)
239 240
Law Society™s Gazette, 17 February 2005, p. 1. Ibid, p. 13.
791 Reform of the profession “ current issues

apply to be approved by the Advisory Committee, the designated judges and the
Lord Chancellor in precisely the same way as the Bar Council and the Law
Society which were approved as authorised bodies by the Act.
In 1993 the Institute of Legal Executives (ILEX) applied to become an autho-
rised body to grant rights of audience for certain civil proceedings in county
courts, magistrates™ courts and coroners courts. (In open court in the county
court for matters within the jurisdiction of District judges and in magis-
trates™ courts in speci¬ed matrimonial proceedings.) ACLEC approved the
application in December 1995. ILEX applied to the Lord Chancellor in March
1996 and the application was approved in November 1997. The new rights of
audience became e¬ective as from April 1998. They apply to Fellows of ILEX
with at least ¬ve years™ post-quali¬cation experience.
In May 2006, the Department for Constitutional A¬airs announced that
Fellows of ILEX would be given the right of audience in criminal proceedings
in the magistrates™ courts and youth courts and in bail applications in the Crown
Court. The Legal Services Consultative Panel (which, as will be seen, replaced
ACLEC in 1999) had recommended this development in March 2006. ILEX
Fellows would have to take a six-day advocacy course to qualify. A statutory
instrument would be made to give e¬ect to the announcement.241
The second application for rights of audience for non-lawyers to be approved
was made in 1991 by the Chartered Institute of Patent Agents. It applied for its
members to conduct litigation and to have rights of audience in patent and
related intellectual property proceedings in the High Court. At ¬rst the appli-
cation foundered on various objections raised by ACLEC, but it was reactivated
and eventually a fresh application was made. This was formally approved by
ACLEC in November 1998 and by the designated judges and the Lord
Chancellor in May 1999.
Rights of audience and other extended powers for non-lawyers in the CPS The
Narey Report on Delay in the Criminal Justice System (February 1997) pro-
posed that non-lawyers in the CPS should be able to review ¬les and to present
uncontested cases in the magistrates™ courts. ˜One of the things which most
struck me on visiting CPS o¬ces was the amount of entirely straightforward
work being handled in the o¬ce and at court by lawyers. Much of this work
must be dispiriting. I am convinced that administrative sta¬, managed by
lawyers and dealing exclusively with uncontested cases, could successfully and
e¬ciently present cases at court, freeing lawyers to concentrate on contested
cases™ (p. 15).
The Labour Government acted on the Narey recommendation in the Crime
and Disorder Act 1998 but took it further than Narey proposed. Section 53 gave
the DPP the power to designate non-lawyers in the CPS to conduct bail appli-
cations and all proceedings in the magistrates™ courts other than (1) contested
cases (from the opening until conviction); (2) cases which can only be tried on

Law Society™s Gazette, 25 May 2006, p. 5; Legal Executive Journal, June 2006, p. 2.
792 The legal profession

indictment or where the defendant has opted for Crown Court trial; or (3) cases
in which a notice of transfer to the Crown Court (p. 345 above) has been served.
Concern had been expressed in 1997 by Lord Bingham, the Lord Chief
Justice, who said that the proposal for lay CPS sta¬ to review ¬les and to pros-
ecute undefended cases ˜appears to re¬‚ect a belief that such matters are relatively
straightforward and call for little technical understanding. In many cases this is
no doubt true. In other cases it is not™.242 Justice of the Peace commenting edito-
rially said:
We see this as yet another disappointing development in the still young life of the
CPS. Low morale, overstretched resources and the recent loss of many experi-
enced lawyers have all hit the service very hard indeed. Despite the Government™s
denials we are in no doubt that the true reason behind this initiative is to cut costs
. . . Administrative sta¬ in the CPS do ¬ne work day in day out, but they are not
lawyers and appropriate quali¬cations and experience are necessary to carry out
proper case reviews and to prosecute even simple guilty pleas. Assurances about
˜appropriate training™ for the new ˜lay reviewers and presenters™ do not allay our
concerns, and they will not allay the concerns of others.243
The journal said it was especially noteworthy that the Government replaced the
Narey recommendation that lay prosecutors should be subject at all times to
direction by legally quali¬ed sta¬ with the very di¬erent requirement of ˜subject
to such instructions as are given to him by the Director™. (˜The danger we foresee
is that lay prosecutors, after passing their initial and as yet unspeci¬ed training,
will be issued with numerous circulars on how to do this or that and then be left
to get on with it with little, if any, de facto supervision by lawyers (ibid).)
The Glidewell Report which was published after the provisions dealing with
this issue had already been adopted in the Crime and Disorder Bill, said that
many CPS lawyers were opposed to the Narey proposals for an expanded role
for non-lawyers in the CPS seeing them as ˜an attack on their proper area of
work™.244 The point was also made that even in the simplest of cases there can
be di¬culties with which a non-lawyer could not be expected to deal compe-
tently. Non-lawyers expressed the fear that they might be obliged to do work for
which they had neither aptitude nor training. Glidewell rejected these worries,
but it drew a distinction between lay review and lay representation. With regard
to lay representation, if the list included only guilty plea cases within the Narey
criteria it saw no disadvantage and considerable advantage in the prosecution
being presented by an experienced but not legally quali¬ed caseworker, but if
the list included a mixture of cases it would be ˜positively wasteful™ to have both
the lawyer and a non-lawyer to present the cases. Also non-lawyer caseworkers
would have to be trained to do the work and only those who wanted to do such
work should be used. There should be no element of compulsion.

J. Malpas, ˜Lay Prosecutors: Revolution by the Back Door™, The Lawyer, 12 August 1997, p. 2.
162 Justice of the Peace, 14 March 1998, p. 194.
Review of the Crown Prosecution Service, Cm. 3960, June 1998 (Glidewell), p. 130, para. 16.
793 Reform of the profession “ current issues

As to review of case ¬les by non-lawyers, Glidewell said it had ˜more reserva-
tions™.245 The Narey recommendation related to a substantial proportion of
cases prosecuted by the CPS:
If it means no more than ensuring that the statement of evidence apparently jus-
ti¬es the charge, that the charge is within the agreed criteria and that the defen-
dant, usually after having legal advice (which will often be from a duty lawyer)
intends to plead guilty, then we think that an experienced caseworker could
properly so decide . . . but if more than that is to be involved in the process of
reviewing expedited cases, the skills necessary for such review will be those of a
lawyer. If a lawyer is to acquire them, he will require both instruction in the law
and practice and some experience. Whether the overall bene¬t in those circum-
stances will be worthwhile, we doubt.
It is to be noted that both Narey and Glidewell™s stated pre-condition for non-
lawyers to undertake either the review or the presentation function was that
they be properly trained for the task. A CPS survey of lay presenters later found
that 43 per cent of respondents stated that they had done work beyond the strict
criteria laid down by the CPS.246
The issue came up again in October 2005. The 2004“5 CPS annual report
referred to what it called ˜the extended remit™ of Designated Case Workers
(DCWs).247 CPS lawyers objected strongly to this development. Kris Venkatasami,
a CPS lawyer and national convenor for the prosecutors™ union, the First Division
Association, said: ˜In our opinion, this is all about cutting corners and trying to
get justice on the cheap. The Law Society™s council member for the CPS com-
plained that case workers were “civil servants who have no external ethical pro-
fessional body to exercise any sanction” ™.248
Lay representation in small claims cases The 1989 Green Paper supported the
recommendation of the Civil Justice Review that litigants should have the right
to select a lay representative in small claims cases and debt and housing cases in
the county court. This was implemented in s. 11 of the Courts and Legal
Services Act 1990, which gave the Lord Chancellor the power to make such pro-
vision by order. In 1992 the Lord Chancellor issued a Practice Direction giving
e¬ect to s. 11249 in respect only of small claims cases. The order entitled anyone
to speak at a small claims hearing on behalf of a party. The party being repre-
sented must be present. The court retained the power to bar a lay representative
who behaves in an unruly fashion.
The 1999 CPR preserved that position in small claims cases: ˜A party may
present his own case at a hearing or a lawyer or lay representative may present

245 246
Glidewell, p. 130, para. 19. Law Society™s Gazette, 27 October 2005, p. 20.
DCWs would undertake work in early administrative hearings; presentations in court in cases
where a youth was charged with an adult and a guilty plea was expected; all cases, including
youth court cases, after a guilty plea where the court orders a pre-sentence report; ˜totting up™
motoring cases where the defendant seeks to avoid disquali¬cation on grounds of exceptional
hardship and applications for the removal of a driving disquali¬cation (Appendix D, p. 53).
248 249
Law Society™s Gazette, 27 October 2005, p. 21. SI 1992/1966.
794 The legal profession

it for him™. But, unless the court agrees, the lay representative can only present
the case if the lay client is present (CPR PD 27.3). See also p. 408 above for the
position of the ˜McKenzie man™.

Conducting litigation
Prior to the CLSA 1990 it was an o¬ence under the Solicitors Act 1974, s. 20 for
anyone other than a solicitor to start or to conduct litigation in any civil or crim-
inal court, except as a litigant in person. The 1989 Green Paper proposed that
this monopoly should be ended and that anyone should be capable of becom-
ing a litigator. The 1989 White Paper con¬rmed this proposal. It stated that the
right to conduct litigation, like the right to appear as an advocate, should be
granted to practitioners by the professional bodies or institutions to which they
belonged if the bodies could demonstrate that they could set and maintain
appropriate standards of competence and conduct. All litigators would also be
subject to the existing powers of the High Court over solicitors as o¬cers of the
court. The Law Society would become an authorised body under the Act. Other
bodies could become authorised bodies by an Order in Council made, follow-
ing advice from ACLEC, on the recommendation of the Lord Chancellor and
subject to the concurrence of the four designated judges.
This scheme was implemented by ss. 28“29 of the CLSA 1990. By 1999 no
new body had been granted the right to initiate or to conduct litigation. The
application by a newly formed Institute of Commercial Litigators was rejected
by ACLEC in February 1996. The Institute was informed by the Committee that
the application fell ˜far short of what is required by the statutory objective and
the general principle™.
However, in the LCD™s June 1998 consultation paper Rights of Audience and
Rights to Conduct Litigation the question was posed whether legislation should
authorise bodies other than the Law Society to conduct litigation. The two
bodies which would be obvious candidates, it suggested, were the Bar Council
and the Institute of Legal Executives both of which were authorised bodies with
regard to rights of audience. There would be no compulsion to take up rights
to conduct litigation and most barristers would probably prefer not to do so.
But some, such as those employed as lawyers in commerce and industry, might
¬nd it useful to be able to become authorised litigators (para. 5.5). Most legal
executives worked in solicitors™ o¬ces but some might bene¬t from being able
to set up their own independent practices.
This suggestion was implemented in the Access to Justice Act, s. 40 which
made both the Bar Council and the Institute of Legal Executives authorised
bodies for this purpose. The Bar has exercised this power “ but only in respect
of employed lawyers providing such services for their own employers.250
See the Employed Barristers (Conduct of Litigation) Rules “ www.barcouncil.org.uk “ (Rules
and Guidance). Exceptionally, an employed barrister may o¬er the service to the public “ i.e.
when employed in a solicitor™s o¬ce or a law centre.
795 Reform of the profession “ current issues

The 2001 OFT report Competition in Professions (see p. 778 above) said the
restriction on private practitioners conducting litigation ˜prevents potential
e¬ciencies and limits the numbers of lawyers who are able to conduct litigation
on behalf of clients™.251 In its Response the Bar argued that adding a few barris-
ters to the number of lawyers eligible to conduct litigation would produce neg-
ligible bene¬ts for consumers. They already had 85,000 lawyers in some 8,000
¬rms available for the purpose. On the other hand, to permit barristers to
perform the function would undermine the distinction between barristers and
solicitors. By absorbing time in collecting evidence, correspondence and han-
dling disclosure, it would dilute the barristers™ specialist skills and would
thereby seriously diminish the quality of their advocacy and advice. Also bar-
risters™ overheads would increase if they had to maintain the systems and sta¬
necessary to conduct litigation. If barristers were to handle client moneys they
would need to be regulated as solicitors are regulated. Such a regulatory system
could cost as much as £1 million per year to run.
In a statement issued on 25 April 2002 regarding progress the OFT said it
remained concerned that the Bar did not intend to lift the blanket prohibition on
the conduct of litigation by barristers in independent practice and that it would
be investigating the matter further. It did not object to the divided profession but
to a rule that imposed specialisation and which restricted what barristers were
free to do. Permitting barristers who wished to conduct litigation to do so would
not prevent other barristers from continuing to be specialists who did not o¬er
that service. The OFT said it was not persuaded by the argument about the cost
of regulating the holding of client moneys. One solution would be to prohibit it.
Another would be to ¬nd cost e¬ective ways of solving the problem.
Neither the LCD™s consultation paper In the Public Interest? (July 2002) nor
the OFT™s Response to the consultation paper (November 2002) referred to the
If barristers were permitted to conduct litigation it seems unlikely that any
signi¬cant number would avail themselves of the possibility.

Claims assessors
The Lord Chancellor announced in June 1999 that he was setting up a commit-
tee to examine the activities of claims assessors who assisted claimants with
their claims in return for a commission on damages recovered. The Solicitors™
Journal reported that lawyers groups had long been warning ˜that consumers
[were] being ripped o¬ by unscrupulous and incompetent assessors™. They were
wholly unregulated. Anyone could set himself up to bring compensation claims
for a share of the damages. Because they were not permitted to issue legal pro-
ceedings they were tempted to settle for too low a ¬gure rather than hand the
case to a solicitor. Also their fees were unregulated. A Law Society spokesman

OFT, 2001 at p. 15. Based on the view expressed in the LECG Report at paras. 258“61.
796 The legal profession

was quoted as saying: ˜At worst, these unquali¬ed legal advisers are just cowboys
or crooks. At best, they can only provide a second-rate service™.252 The
Committee reported in April 2000 that it did not think that there was a present
need for legislation.253

Legal Services Consultative Panel
The 1989 Green Paper proposed that the Lord Chancellor should have an advi-
sory committee with a lay majority. The functions of the advisory committee,
it suggested, should include advice on the arrangements for legal education and
training, on the need for recognising areas of specialisation and how specialists
should be trained and on codes of conduct.
The 1989 White Paper con¬rmed that there would be an advisory commit-
tee with a lay majority. The committee was established by the CLSA 1990, s. 20.
Its duty was to assist ˜in the maintenance and development of standards in the
education, training and conduct of those o¬ering legal services™ (s. 21(1)). Its
functions, set out in Sch. 2 of the Act, included advising the Lord Chancellor on
all stages of education and training of lawyers, quali¬cation regulations and
rules of conduct (whether related to advocacy or the conduct of litigation or
not) and specialisation schemes.
The Advisory Committee on Legal Education and Conduct (known as
ACLEC) was clearly intended to be the lead policy-making body under the
CLSA 1990 “ with the designated judges playing a subsidiary monitoring role.
Replacement of ACLEC In its June 1998 consultation paper (above) the Lord
Chancellor™s Department said that the Government intended to abolish
ACLEC. The committee, it said, had attracted distinguished membership, but
it had not succeeded in ˜signi¬cantly furthering the statutory objective of devel-
oping new or better ways of providing legal services and a wider choice of
persons providing them™ (para. 4.6). Partly this might have been due to the care-
fully balanced membership representative of various legal interest groups.
(ACLEC, in its response to the consultation paper, stoutly defended its
The consultation paper proposed that there should be a new body to be called
the Legal Services Consultative Panel appointed for their individual expertise
rather than as representatives of interest groups (para. 4.16). The Panel would
be asked to consider all applications from new bodies for authorisation under
the CLSA 1990, any applications for the approval of rule changes on which the
Lord Chancellor required advice ˜and any other matters concerning the provi-
sion of legal services on which the Lord Chancellor required advice™ (para. 4.17).

Solicitors™ Journal, 18 June 1999, p. 575.
Report on the Activities of Non-legally Quali¬ed Claims Assessors and Employment Advisers “
accessible on www.dca.gov.uk “ Major Reports/Reviews.
See also ˜Farewell to ACLEC™ by Lord Justice Potter, its last chairman, in Counsel, April 1999,
p. 26.
797 Reform of the profession “ current issues

The Panel was established as of 1 January 2000.255 (For details of its mem-
bership, its work and the advice it has given to the Lord Chancellor see

Right of direct access to the Bar for professional and lay clients
In earlier times there was no rule preventing barristers from dealing directly
with clients, but by the mid-nineteenth century it had become an understand-
ing. In 1888 the Attorney General gave an opinion that in contentious matters
a barrister should not act or advise without the intervention of a solicitor “
chie¬‚y because the barrister was not in a position to ascertain the facts of the
case.256 It remained permissible, though uncommon, for barristers to accept
instructions directly from clients in non-contentious matters, but in 1955 the
then Attorney General declared the practice to be wrong and this opinion was
adopted by the Bar Council at its 1956 Annual General Meeting.
The 1989 Green Paper recommended that lay clients should have a right of
direct access to barristers. Many commentators, including the writer, argued
that this could lead to the destruction of the Bar as a second-tier consultancy
service and the Government conceded the point. The 1989 White Paper (para.
11.7) said that this matter would be left to the Bar to determine.
That year, in the context of the furious debate over the Green Papers, the Bar
altered its rules to permit Direct Professional Access (DPA) to some profes-
sional clients to instruct barristers direct, without having to go via a solicitor.
A decade later there were nearly forty professional bodies with this right.
They included: architects, accountants, loss adjusters, ombudsmen, actuaries,
valuers and auctioneers, Royal Town Planning Institute, Royal Institution of
Chartered Surveyors, Association of Average Adjusters, Chartered Association
of Certi¬ed Accountants, Institution of Mechanical Engineers, Institution of
Chemical Engineers, Institute of Taxation, Institute of Chartered Secretaries
and Administrators.
In May 1996 the Bar Council agreed in principle that bureau workers in des-
ignated Citizens™ Advice Bureaux should be able to refer work direct to a bar-
rister.257 After completion of a pilot, this scheme became e¬ective for advice
agencies with franchises from the Legal Aid Board as from January 1999.258
A Bar Council Policy Unit appointed in 1994 ˜to think the unthinkable™
produced a consultation paper in February 1994 which, amongst other things,
proposed that direct access for lay clients to a barrister should be permitted in
non-contentious work “ i.e. for legal advice. For contentious matters (litiga-
tion) the lay client should also be allowed direct access to a barrister but the
barrister should then be under a duty to refer the client to an appropriate

255 256
Access to Justice Act 1999, s. 35(3) and Sch. 5. (1888) 85 LT Jo 176.
See H. Heilbron, ˜Moving with the Times “ an Opportunity for the Bar™, Counsel, July/August
1996, p. 18. See D. Payne, ˜Welcome Advice™, Counsel, April 1999, p. 24.
798 The legal profession

professional intermediary who would usually be a solicitor. This proposal was
considered but rejected at the Bar™s Annual Meeting in July 1994.
Spokesmen for the Labour Party (notably Mr Paul Boateng MP) said before
the 1997 General Election that a Labour Government would abolish the rule
prohibiting direct access for lay clients to a barrister but, in the event, after
Labour was returned to power in the General Election this threat was quietly
Neither the LCD™s 1998 consultation paper nor the Access to Justice Act 1999
contained any provision on the subject.
However, in October 1998 the Bar Council issued a short but potentially
important consultation paper addressing the issue of direct access. ˜Contracts
and Access to the Bar™ prepared by a sub-committee, known as the Contracts
Working Party, under the Chairmanship of James Munby QC (who had also
chaired the Bar Council Policy Unit which produced the 1994 consultation
paper). The Munby Committee said that barristers were restricted not only by
rules about the source of their work (i.e. from whom they were permitted to
receive instructions), but also regarding the nature of the work they could do.
They were not permitted to do certain categories of work done by solicitors “
de¬ned in the Bar™s Code of Conduct, para. 901. (This ˜excepted work™ includes
the management, administration or general conduct of a lay client™s a¬airs, the
management, administration or general conduct of litigation and the receipt
and handling of clients™ money.)
The Munby Committee suggested that the Bar had various options. One was
to maintain the status quo. The second was to expand the categories eligible to
refer DPA work. The third was to permit direct access by lay clients. The fourth
was both to permit direct access to lay clients and to scrap the restrictions on
the work that barristers could do. The ¬fth was also to permit barristers to
conduct litigation. The last two would lead to an assimilation of the functions
and roles of barristers and solicitors.

Direct licensed access (DLA) Expansion of the categories of those able to refer
clients to the barrister could include people not members of a professional body
provided they were recognised by the Bar Council as (1) competent in some
identi¬able area of expertise or experience; (2) having the necessary skills to
organise papers and information; and (perhaps) (3) subject to some suitable
disciplinary or regulatory tribunal or at least some rules. There were many
potential candidates including banks, building societies, insurance companies,
trade unions, trade associations, employers™ associations, consumer bodies,
housing associations and charities.
If the Bar Council had the responsibility for deciding who had the right to
refer to barristers, this would free ˜individual barristers and chambers from the
administrative and other burdens of dealing with any and every layman who
simply walks in o¬ the street™. Also unrestricted direct access by lay clients would
raise overheads and would have signi¬cant client care implications (para. 5.5).
799 Reform of the profession “ current issues

The Munby Committee said it saw no reason to distinguish between con-
tentious and non-contentious work for the purpose of the direct access rules. It
did not think that holding to the status quo was right. It was strongly opposed
to permitting unrestricted direct access. If the Bar was going to survive it would
do so ˜only because there is a real and perceived di¬erence between what bar-
risters do and what solicitors (and others) do . . . Barristers should do barris-
ters™ work; they should not do solicitors™ work™ (para. 5.9(4)).
So the choice e¬ectively lay between an extension of DPA, the introduction
of DLA or the extension of direct access to all lay clients. There was little scope
for extension of DPA. There were few professional bodies not already on the list
that would satisfy the criteria. The Munby Committee favoured DLA over direct
access to all lay clients.
This view prevailed. In 1999 the Bar Council approved a scheme for DLA
called BarDIRECT.259 The scheme was extended to include police forces, pro-
bation services, trading standards o¬ces, clinical negligence and other insurers,
trading companies, banks, insolvency practitioners and trades unions. By 2003
over a hundred licences had been approved.260
The future success of licensed access/BarDIRECT was dealt a potentially
serious blow, however, by the Court of Appeal™s December 2005 decision in
the case of Andre Agassi and the taxman. Agassi employed non-lawyer tax
experts who instructed a barrister. As already noted, the Court of Appeal
ruled that the tax experts™ fees (other than disbursements) were not recover-
able against the Revenue because they were not lawyers. Unless this rule is
changed by legislation, licensed access/BarDIRECT will not be attractive to
In March 2001 the OFT™s report Competition in Professions said that while
there was no objection to a barrister choosing not to deal with clients without
the intermediary of a solicitor, there was objection to the professional rule
denying freedom of choice. In response to the criticism, the Bar Council, acting
on the recommendation of a committee chaired by Sir Sydney Kentridge, unan-
imously approved changes to its professional rules to broaden the scope for lay
clients to have direct access to barristers.
The Kentridge Committee™s recommendation was that the new regime
should be implemented cautiously, with restricted direct access in criminal and
family cases, notably for advice and in a very few court matters where it is clear
that the additional role of the solicitor is not necessary. A consultation paper on
the response to the OFT™s report was issued by the Bar in April 2002. This
proved to be the most controversial issue in the consultation paper. A working
group then put forward detailed rules. The ¬nal version was approved by the
Bar Council on 29 March 2003 and by the Lord Chancellor in June 2004. The
scheme became e¬ective in July 2004.

See J. Munby, ˜Extending a Helping Hand™, Counsel, October 1999, p. 26.
The list was published in Counsel, March 2003, p. vi.
800 The legal profession

In June 2004 BarDIRECT and DPA were renamed ˜licensed access™ and ˜direct
access™ was renamed ˜public access™.
Under the rules, public access is permitted in civil work, excluding family and
immigration matters, providing it can be done without a solicitor. It can be
undertaken in limited categories of family and criminal work such as advice (but
not advice in police stations) and appeals but not for trials. Special Bar Council
approved training is a requirement.261 Barristers with under three years™ experi-
ence cannot undertake public access work. The barrister is required to send a
client care letter setting out what he or she is and is not able to do, the likely fees
to be charged and any other information the client needs.262 The barrister cannot
start work on the matter until he has a copy of the letter countersigned signed by
the client. It speci¬es that all work must be paid for in advance! The barrister may
not write to the client on headed notepaper, he may not hold client moneys (and
therefore cannot issue proceedings or applications) and he cannot take on work
on the instructions of a lay client which involves the investigation of facts or the
taking of statements from witnesses. Also, if acting in litigation, the only costs
recoverable from the other side are £9.25 per hour for a litigant in person.263
However, in operating public access, the ˜cab-rank rule™ does not apply.264
By September 2005, nearly 600 barristers had attended the one-day training
course and some 380 had made their details available to the public.265

Non-practising employed barristers
In 1990 the Bar authorised a new type of practice “ that of ˜non-practising
employed barristers™ working, say, for a ¬rm of accountants or foreign lawyers.
Such a barrister was allowed to advise his ¬rm™s clients but not to hold himself
out to be a practising barrister nor to appear as counsel in court, but the rules
only allow a non-practising barrister to call himself such if he has completed a
The consultants LECG in their report attached to the OFT™s report
Competition in Professions said that only about a hundred individuals had reg-
istered with the Bar Council to continue using the title.266 It doubted whether

The training consists of a one-day course.
See Counsel, February 2003, p. iv. For views as to the prospects see L. Heath¬eld, ˜Handle with
Care™, Counsel, May 2003, p. 15; P. Bennett, ˜Moving the Goalposts™, Counsel, May 2003,
pp. 18“19; L. Trevelyan, ˜Access All Areas™, Law Society™s Gazette, 5 August 2004, p. 18; A.
Speaight QC, ˜Giant Leap?™, Counsel, October 2004, p. 20. Practice Direction 52.4.
For one barrister™s view of the seriously negative e¬ect of the restrictions see L. Sinclair,
˜Public Access: Hold the Gates?™, 155 New Law Journal, 24 June 2005, p. 984. (˜In the author™s
personal experience, each of these restrictions has been instrumental in ensuring that there is
minimal, if any, bene¬t to working with a barrister directly™.) For a very up-beat assessment
see A. Heppinstall, ˜Public Access to the Bar is Good for All™, 155 New Law Journal, 16
September 2005, p. 1360.
155 New Law Journal, 9 September 2005, p. 1304. For the current list see
www.barcouncil.org.uk. For the experience of three barristers with Direct Public Access see
˜Reaching Out™, Counsel, November 2006, pp. 12“13. Paragraph 269, p. 77.
801 Reform of the profession “ current issues

the requirement of a pupillage as the basis for using the title was necessary. It
called this a backward step to inhibit a source of competition for non-advocacy

Queen™s Counsel
Eligibility of solicitors The 1989 Green Paper did not question the value of
the status of QC but it proposed that all those who held full advocacy cer-
ti¬cates should be eligible to become QCs. The 1989 White Paper amended
this by stating that the Lord Chancellor would in future regard as eligible
those who held rights of audience either in the High Court or the Crown
Court. This did not need legislation and was therefore not included in the
CLSA 1990.
From July 1995 solicitor advocates became eligible to apply to become QCs.
However, by 2003 only eight had been appointed.267 In the eight years
1996“2003 there were a total of 3,837 applications for silk, an average of 480 per
year. Of these, only seventy-three (1.9 per cent) were made by solicitors. (In
2005, the ¬rst year of the new reformed system, there were 443 applications of
which twelve (2.7 per cent) were from solicitors. In 2002“3, the last year of the
old system, the number of solicitor applicants had been ten out of 394 (2.5 per

Should QCs continue to exist?
The Bar™s Response to the OFT report argued that the QC system had real value
both for the purchasers of advocacy services and to the administration of
justice. Appointment as QC was public recognition of outstanding ability. It was
of value to purchasers of advocacy services such as solicitors and especially to
those who did not regularly instruct counsel in the particular ¬eld of work.
Internationally it helped to make English advocates competitive in litigation
and arbitrations outside the UK. It also helped to maintain standards since QCs
were selected not only for their legal skills. Integrity and independence were also
assessed. The question whether it should be the Lord Chancellor who made the
selection was, it suggested, a constitutional rather than a competition question.
At least no one suggested that political considerations played any part in the
The OFT suggested that there was inadequate peer review. The Bar said, on the
contrary, the selection process involved an intense and wide-ranging process of
peer review. The OFT pointed out that there were no professional examinations
that had to be taken to become a QC. The Bar™s reply was that what was being

One, Laurence Collins, formerly a partner in City ¬rm Herbert Smith, in 2000 became the
¬rst solicitor to be appointed a High Court judge and in 2007 was appointed a Lord Justice of
Law Society™s Gazette, 17 November 2005, p. 1.
802 The legal profession

assessed “ experience, advocacy skills and professional qualities demonstrated in
practice “ were not measurable by formal examinations. The OFT argued that
there was no continuous quality appraisal of QCs. The Bar said it was not aware
that this caused any problem. Market forces were the main safeguard, but there
might be a case for a procedure whereby the rank of QC could be removed if the
Lord Chancellor was satis¬ed that there had been a serious or sustained failure to
meet the standards reasonably to be expected of a QC.269
In its report on progress in April 2002, the OFT (para. 3.39) said a quality
mark was only of value to consumers if it was awarded according to clear cri-
teria and in a transparent way. Whether the QC system met this condition
was open to debate. Another condition was that the mark should be capable
of being lost as well as won. The QC system did not qualify in that regard.
Also, it said, ˜we remain concerned that the QC system may operate to distort
competition™. One sign of this was ˜the step-change in fees that QCs are said
to command upon taking silk™; another was that ˜custom and practice had
given rise to some de facto demarcations as to what work is and is not suit-
able for QCs™. It had also been suggested that the system displayed elements
of a quota system and that some quantitative as distinct from purely qualita-
tive criteria might apply. (It added, pointedly: ˜We note with interest that the
number of QCs appointed in 2002 is markedly higher than in any other
recent year™.270)
The LCD™s consultation paper In the Public Interest?, issued in July 2002,
devoted eleven pages to the issue. It seemed to lean toward a¬rmation of the
utility of the status of QCs ˜in so far as users of a service are insu¬ciently
informed about the full range of quality on o¬er, an e¬ective and accurate mark
of quality which di¬erentiates the leading players will improve the amount of
information available to users of the service™ (para. 127). Not all users of the
service would have the information to identify the top specialists. Since barris-
ters were self-employed, many of the usual mechanisms to signal information
on quality “ such as becoming a partner “ were not available to barristers. In the
absence of reliable information on the quality of providers, users would tend to
stick with the barristers they had tried previously. A mark of quality ˜therefore
facilitates competition by enabling the user to “switch” to new providers, i.e. to
instruct with con¬dence a barrister of whom they have little or no experience™
(para. 131). The QC system also provided a career structure within the legal
system ˜marking the achievement of a level of status, excellence and seniority
which is broadly analogous to that found within other professions (senior

Paragraphs 7.1“15.
As noted above, in previous years the number appointed was sixty to seventy and the success
rate of applications was as low as an average of 14 per cent. In 2002 the number was 113 from
429 applications, a success rate of 26 per cent. In 2003 it was even higher “ 121 from 394
applications, a success rate of 31 per cent. This apparent ˜watering of the brandy™ led to
criticism “ see B. Malkin, ˜Irvine under Fire for Silk Appointment Hike™, The Lawyer, 21 April
2003, p. 2.
803 Reform of the profession “ current issues

partners in solicitors™ ¬rms, hospital consultants, professors in the academic
world, etc.)™ (para. 134).
On the question of increased fees the paper said that there was considerable
overlap between what could be earned by a successful junior and a QC. The
junior could be earning more than the QC even in the same area of practice.
The Law Society in its response to the consultation paper criticised the
system. It referred to the evidence it gave in 1999 to the enquiry by Sir Leonard
Peach on the operation of the judicial and QC appointments procedures (p. 750
above) when it said: ˜The designation is a mark of patronage that is inappro-
priate in the modern age™ (para. 5.3). The Council of the Law Society had con-
¬rmed that opinion in September 2000 in deciding to continue to remain
outside the automatic consultation process for judicial appointments and silk.
The Law Society in its Response to the July 2002 consultation paper (para.
5.5) said it had three main concerns. One was about the consultation process
which at least gave excessive weight to the views of the judges and not enough
to key consumers such as solicitors. Secondly, it was undesirable for leaders of
an independent profession to be selected by a Government minister “ though
there was no evidence that the appointment function had been abused in the
recent past. Thirdly, there was concern that, ˜at least until very recently™, a quota
system had operated. The QC system was helpful in identifying specialists for
However, it said that solicitors reported ˜a substantial increase in fees when
barristers are appointed QC “ indeed, solicitors thought that this was the whole
point, from the applicants™ perspective™ (Q 57, p. 60). It agreed with the OFT
that ˜reports from solicitors suggest a step-change [in higher fees] that is not
always justi¬ed by the superior skills claimed™ (Q 59, p. 60). Sometimes a QC
was instructed solely because the client was anxious to have apparent equality
of arms with the opponent. Another point of criticism was that the courts too
often placed greater weight on an argument put by a QC than on the same argu-
ment put by a junior.
If the system continued, the Law Society thought it should be replaced by an
accreditation system for experienced members of the Bar. (˜Ideally, accredita-
tion would be achieved by candidates being able to demonstrate by objective
methods that they had achieved the required level of work experience and spe-
cialised knowledge™ (para. 5.8).) Such a scheme would also require members to
seek re-accreditation, say, every ¬ve years. No indication was given as to what
˜objective methods™ could be used for such accreditation.
Given the markedly approving tenor of the LCD™s presentation of the issues
in July 2002, it was surprising that, as has been seen, on 2 April 2003 the Lord
Chancellor told the new House of Commons Select Committee on his
Department that he would be issuing a consultation paper to canvass, inter alia,
the question whether the QC system should continue to exist and even more
surprising that on 29 April 2003 he announced that he was suspending the
entire process of selection.
804 The legal profession

The Government™s further consultation paper271 was issued on 14 July 2003.
Its substantive part was thirty-one pages long. In the Foreword the new Lord
Chancellor, Lord Falconer, said: ˜I have no predetermined answers to the ques-
tions raised in this paper™, but the paper gave rather more emphasis to the neg-
ative aspects of the system than had its July 2002 paper.
It ¬rst addressed whether it was appropriate for the appointment to be made
by the Queen on the advice of ministers. There was need for a strong case to
justify it. (˜The indications from customers certainly suggest that the rank of
QC in the legal services market does not provide a useful kitemark in practice,
and that the market might work more e¬ectively if the QC mark were to be
removed™ (para. 22).) The Government™s provisional view was that retention of
the rank in its present form could only be justi¬ed if:
• It serves a helpful purpose for users of legal services.
• Any bene¬ts clearly outweigh any problems and in particular the extent to
which it may distort competition in the market for legal services and its pos-
sible e¬ect on fees.
• Its possible bene¬ts cannot be provided in other ways free of such disadvan-
tages (p. 22).
The responses to In the Public Interest? had not produced many concrete
examples of the QC rank being used as an e¬ective guide when selecting an
A number of respondents said that it had a general usefulness, but more detailed
responses tended to argue that what was relevant to an instructing solicitor was
the individual advocate™s experience and skills. They had frequently found the
right junior counsel to be of better value than a QC. It was also said that the rank
of QC drove up legal costs unjusti¬ably. There was a perception that QCs were
now instructed in circumstances where their particular skills were not really
needed: for example because it might be thought that judges would pay more
attention to a QC™s argument, or because a simple equality of arms was needed
“ just because the other side had already instructed a QC. Such perceptions
could have the e¬ect of tilting the market in favour of QCs and against experi-
enced juniors (para. 49).
Abolition of the rank could therefore have two bene¬cial e¬ects. First, it could
lead to a more e¬ective reliance on information about individual advocates and
their skills ˜so that consumers would pay only the price re¬‚ecting the real value
of the service they are buying rather than paying for a badge or QC “brand”™
(para. 50). Providing information ¬‚owed freely, the market would determine
which barristers could command higher prices on the basis of the quality of
their work (para. 50). Secondly, if QCs lowered their fees to be competitive
with experienced juniors, costs would come down. (On the other hand, if

Constitutional Reform: the Future of Queen™s Counsel, consultation paper 08/03 (accessible on
www.dca.gov.uk “ Publications “ consultation papers “ 2003).
805 Reform of the profession “ current issues

individuals were already paid according to their skills, there would be little or
no change. A di¬erent possibility was that experienced juniors might put their
fees up.)
Lord Falconer™s consultation paper considered the implications for existing
QCs if the rank were removed and the ways in which it might be done. The ¬nal
section discussed what sort of award system might replace the present system.
Annexes dealt with the current criteria for the award, the current selection
procedures, the position in other jurisdictions and quality marks in other UK
professions and trades.272
On 26 May 2004 Lord Falconer in a Written Statement in the House of Lords
announced his decision. The Lord Chancellor would no longer be involved in
the selection of QCs, but respondents to the consultation paper had been clear
about the value of maintaining a kitemark for advocacy services “ ˜both to
recognise excellence and to provide useful information for consumers™. The
Government had therefore asked the Bar Council and the Law Society (and
their counterparts in Northern Ireland) to develop a scheme for accrediting
leading advocates to replace the existing arrangements. The professions would
be responsible for selecting the candidates. The Lord Chancellor would
recommend to the Queen that those on the list were appointed, subject to the
possibility that in exceptional circumstances he would depart from the recom-
mended names.273 The Lord Chancellor said that the decision was an interim
measure pending a market study of what areas of law demonstrated a need for
better consumer information.
In December 2004 it was reported that the Bar Council and the Law Society
had agreed on extending QC accreditation beyond advocacy to other work.
There would be a ˜competency framework™274 having taken ˜structured refer-
ences™ from judges, practitioners and clients. The scheme would indicate the
broad ¬eld of law “ civil, criminal or family “ in which the successful applicants
had demonstrated excellence. If QCs ceased to perform to a satisfactory stan-
dard, the award could be revoked.
The nine person Selection Panel when ¬rst constituted was chaired by a
layman.275 It had a senior judge (female), two QCs (one male, one female),276 a
solicitor in private practice (female), a senior prosecutor solicitor (male)277 and
three other laymen (one male, two female). Five of the nine therefore were

A summary of the responses to the consultation paper was published by the DCA in January
2004. The individual reponses were published in February 2004. Both documents are
accessible on www.dca.gov.uk “ Publications “ consultation papers “ 2003.
House of Lords, Hansard, 26 May 2004, col. WS 54.
The criteria were: integrity, understanding and using the law, analysing case material and
preparing arguments, persuading and responding to the unfolding case, working with the
client and working in the team. The competencies were: oral and written advocacy, case
management and dispute resolution.
Sir Duncan Nichol, formerly Chief Executive of NHS Management Executive, and also
chairman of the Parole Board. Nominated by the Bar Council.
The solicitors are nominated by the Law Society.
806 The legal profession

female and four were lay. One of the lay persons was from an ethnic minority.
The Secretariat was headed by a senior and experienced civil servant seconded
by the DCA.
The process includes a ˜self-assessment™ completed by the applicant. With
regard to referees, the applicant must list judges before they have appeared in
cases of substance, complexity or particular di¬culty in the previous two years.
(Where there are fewer than twelve referees, the two years is extended to three
years.) The candidate must also identify a number of practitioners by whom he
has been led or against whom he has appeared.
The Selection Panel decides which named referees to ask for references (in the
cases of judges, four). There is also an interview with a member of the Selection
Panel and an external expert.278
Successful candidates receive their Letters Patent at a ceremony presided over
by the Lord Chancellor or the Lord Chief Justice.
The new system is required to be self-¬nancing. The fee for applying in 2007
was £2,500 plus VAT. Successful candidates were required to pay a further
£3,000 plus VAT (to cover the cost of the appointment ceremony and of the
Letters Patent).279
Unsuccessful candidates receive feedback. There is a complaints procedure
involving a senior serving judge.280
As noted above, of the 443 applicants on the ¬rst round under the new system,
15 per cent were women (up from 10 per cent in the last round under the old
system), but, as also noted, hopes, and indeed expectations, that there would also
be an increase in the number of solicitor applicants were not realised.
There were 175 appointments “ 141 men and thirty-three women.281 Ten
were from ethnic minority backgrounds; four were solicitors.282
This new system is on trial. One of its architects suggested that the initial pro-
cedures had proved too onerous and complicated. The 443 applications on the
¬rst round had generated nearly 4,500 references. Sir Duncan Nichol, who
chaired the Selection Panel, was quoted as saying that he would be seeking ways
to reduce the burdens on judicial, practitioner and client referees.283

BarMark and Quality Mark
In 1999 the Bar Council introduced the BarMark scheme whereby chambers
can be accredited as e¬cient. To qualify, the chambers has to be able to show
that its systems and documentation are consistent with the required quality
standards. The tests, which are conducted by the British Standards Institution
For a description of the Selection Panel™s working methods by one of the lay members see K.
Singh, ˜High Octane™, Counsel, September 2006, pp. 37“8. www.qcapplicationss.org.uk.
W. Blair QC and R. Knowles QC, ˜Racing Silks™, Counsel, April 2005, p. 16 and ˜The Silk Route
Re-opens™, Counsel, August 2005, pp. 10“12; J. Robins, ˜Making the Grade™, Law Society™s
Gazette, 12 May 2005, p. 22. One did not disclose his/her gender.
For full statistics and comparison with the previous ten years see Counsel, August 2006, pp. 32“3.
˜“Laborious” QC Competition under Review™, 156 New Law Journal, 11 August 2006, p. 1268.
807 Reform of the profession “ current issues

(BSI), are quite demanding. There is a one-o¬ initial charge of £350 plus VAT
and thereafter BSI has a daily charge of £645 per auditor. In 2006 the number
of sets with the quali¬cation was forty-one.284
Alternatively, chambers can qualify for the Legal Services Commission™s
Quality Mark for the Bar launched in 2002. Over a hundred sets have the
Quality Mark.285 The LSC does not charge for providing this service.
For discussion of, and proposals on the problem of assessing quality of advo-
cates, see Appendix 1 of the Bar Council™s Response to the joint DCA and LSC
Consultation Paper, Legal Aid: A Sustainable Future, 12 October 2006 “

Partnerships between lawyers and between lawyers and non-lawyers
As has been seen, under the Bar™s own rules barristers are not permitted to form
partnerships. (The sole exception to the rule is that, curiously, a barrister has
for many years been allowed to form a partnership with an overseas lawyer.) In
1979 the Report of the Benson Royal Commission on Legal Services supported
the rule forbidding partnerships. Ten years later, the February 1989 Green Paper
proposed (1) that barristers and solicitors should be able to form partnerships
with each other; (2) that each should be able to join in partnerships with
members of other professions (˜multi-disciplinary partnerships™ or ˜MDPs™);
(3) that each should be able to join in partnership with foreign lawyers (˜multi-
national partnerships™ or ˜MNPs™) and (4) that barristers should be able to form
partnerships with other barristers.
However, the July 1989 White Paper (Ch. 12) played a very di¬erent tune.
(˜The Government . . . believes that the regulation of how the members of pro-
fessional bodies organise themselves to meet their clients™ needs is best left to
the professions themselves, subject to a proper scrutiny to avoid unnecessary or
undesirable anti-competitive e¬ects™ (para. 12.2).)
The Courts and Legal Services Act 1990, s. 66 abolished the statutory prohi-
bition on solicitors forming partnerships with non-solicitors and stated that
there is no common law rule that prevents barristers from forming such rela-
tionships, but s. 66 also speci¬cally permits the Bar to make rules preventing
barristers from entering such partnerships. The Bar has so far maintained its
prohibition on partnerships.

Partnerships between barristers
The publication in February 2001 of the report of the OFT Competition in
Professions (p. 778 above) suddenly made the issue “ at least of partnerships
between barristers “ a live one. The OFT™s report said:
See J. Chase, ˜Nine Easy Steps to BarMark Status™, Counsel, June 2000, p. 28; J. Woolf, ˜Getting
into Shape™, Counsel, May 2005, p. 26; and the Bar Council™s Website “ www.barcouncil.org.uk
“ Services to Barristers. Curiously, the number in 2006 was lower than in 2003 when it was
sixty. (Counsel, February 2003, p. vi.) In July 2006 the number was 129.
808 The legal profession

The requirement that only sole practitioners can supply barristers™ services is
anomalous in the context of professional services and beyond. A similar require-
ment for, say, booksellers would have clear disadvantages in terms of, inter alia,
costs, price, e¬ciency, innovation and choice. While bookselling and the supply
of legal services by barristers have rather di¬erent economic characteristics, the
same general economic principles should apply. Moreover, the sole practitioner
requirement might also have the e¬ect of deterring some people from a career
as a barrister who would be at least as able professionally as those who become
barristers, but who do not have the ¬nancial resources to fall back on if their
¬‚ow of business were to fall o¬, or who are quite reasonably averse to such ¬nan-
cial risk. Lifting of the restriction could therefore help to broaden access to and
diversity in the profession.286

The Bar™s Response to the OFT™s report devoted six pages to the topic. It argued
that the rule ensured the widest availability of barristers™ services to the public
in three ways:

• Competition was promoted by maximising the number of competing under-
takings “ barristers in the same chambers often appeared against each other
which would be impossible if they were partners “ this was especially impor-
tant in specialised ¬elds with small numbers of practitioners.
• Minimising costs “ individuals working for themselves had lower overheads.
• The ˜cab-rank principle™ (p. 780 above) would be undermined with part-
nerships “ con¬‚ict of interest problems would be greatly increased as the
barrister would have to consider not only the interests of his own clients but
those of all the clients of the partnerships. Even if there were no technical
con¬‚ict of interest, partners would sometimes pressurise each other not to
take a client “ representation would be subject to the will of the majority.
The accompanying report by consultants LEGG suggested that the freedom
to form partnerships was more important than the cab-rank rule. This
showed ˜little understanding of the importance of the rule to British justice™.
To reduce this valuable public bene¬t in the name of personal ¬nancial
advantage and greater security for barristers was contrary to the public

Features that made the OFT™s comparison with bookselling inappropriate

• The adversarial nature of litigation with the potential for con¬‚icts of interest.
• The small number of barristers with relevant specialist skills.
• The public interest in ensuring that such expertise was as widely available as
• The public duties to which barristers were subject.

At p. 15 and see also the accompanying report of the consultants LECG, pp. 80“2.
809 Reform of the profession “ current issues

There was no evidence that the rule deterred would-be entrants. There was a
heavy demand for pupillages and tenancies. Most entrants did not have private
means and were dependent on funding provided by chambers.
In its April 2002 progress statement regarding Competition in professions the
OFT responded to the Bar™s three main arguments. It questioned whether it was
true that abolishing the rule would diminish competition. Not all specialist
areas were small and moreover competition rules existed to prevent concentra-
tion of work in few hands. As to the relative overhead costs of barristers and
solicitors it was premature to draw the conclusion that this was due to a
di¬erence in their respective business structures. As to the cab-rank rule, it
would still apply to barristers not in partnerships and might apply also to those
in partnerships. The OFT said that it intended to give further detailed consid-
eration to the issue.

Partnerships between barristers and members of other professions
The OFT report did not address additional words to the prohibition on barris-
ters forming multi-disciplinary partnerships (MDPs). The consultants LECG™s
report said the arguments were similar to those that applied to partnerships
between barristers. It concluded that the current restrictions on barristers
forming MDPs were ˜inhibiting competition, potential cost e¬ciencies and cus-
tomer choice and convenience™.287
The Bar™s Response said that all the reasons for prohibiting barristers from
forming partnerships with one another applied equally to MDPs. In addition,
MDPs would give rise to di¬culties of di¬ering professional standards,
di¬ering approaches to con¬‚icts of interest and di¬ering rules concerning
client con¬dentiality and the operation of legal professional privilege.288 The
consultants LECG™s report recognised these di¬culties but did not propose
any solution to them. There had been no support in the consultation con-
ducted by the Kentridge Committee for barristers to enter MDPs. In conclu-
sion on this topic, it quoted a recent speech by Lord Woolf, Lord Chief Justice,
in which, referring to the OFT report he had said: ˜I want to say that I believe
that partnership is inconsistent with the independence of the Bar and with the
public interest™.

MNPs and MDPs for solicitors
Section 66(1) of the Courts and Legal Services Act 1990 provided: ˜Section 39
of the Solicitors Act 1974 (which, in e¬ect, prevents solicitors entering into
partnership with persons who are not solicitors) shall cease to have e¬ect™.
However, subsection (2) went on to permit the Law Society to continue to pro-
hibit or restrict such partnerships.
One of the few policies proposed in the 1989 Green Papers that was imple-
mented was the recommendation that solicitors should be permitted to form

287 288
Paragraph 291, p. 82. Page 19, para. 3.27.
810 The legal profession

partnerships with foreign lawyers (MNPs). Under the Multinational Practice
Rules 1991 an MNP operating in England and Wales has to comply with all
the rules that apply to solicitors. All the partners must be either solicitors or
Registered Foreign Lawyers (RFLs). (One becomes an RFL by going through
a process of registration with the Law Society, set out in s. 89 and Sch. 14 of
the CLSA.289) In 2003 there were over 200 MNPs registered with the Law
However, partnerships between solicitors and members of other professions
(MDPs) are still prohibited by reason of the Solicitors™ Practice Rules 4 and 7.
Rule 4 prohibits solicitors employed by non-solicitors acting for third parties;
Rule 7 prohibits solicitors sharing fees with non-solicitors. Whether MDPs
should be permitted has been the subject of deep divisions in the profession
since the 1980s.
In 1987, in response to a consultation document issued by the Law Society,
54 per cent of respondents favoured a relaxation of the ban on mixed partner-
ships. In January 1993 the Law Society issued a fresh consultation document
(Multi-Disciplinary Practice) inviting the profession™s views. The response rate
to the survey conducted by the Law Society was very low, but of those who
replied, 49 per cent of solicitors and 56 per cent of Local Law Societies were
opposed to MDPs, 33 per cent were in favour. The Council of the Law Society
decided in March 1994 to take no further action on the matter for the time
In June 1996, the Law Society issued another consultation paper on the
question (MDPs: Why? . . . Why Not?) It stated that solicitors could currently
work with non-lawyers in four di¬erent ways short of partnership: (1) A ¬rm
of solicitors could have a close association with a ¬rm of non-lawyers with a
referral arrangement. Most of the major accountancy ¬rms had such arrange-
ments with ¬rms of solicitors. They were permitted “ provided the ¬rm had
only lawyer owners and fees were not shared with non-lawyers. (2) A solici-
tor could have a business that was not a solicitors™ business with a non-lawyer.
Such a ¬rm could provide business adviser services but not legal services. (3)
A solicitor employed by non-lawyers could do legal work for customers but
not as a practising solicitor. (4) A solicitor who is not practising could own a
non-lawyer business jointly with a non-lawyer. Such a business was not a
The consultation paper set out the pros and cons of MDPs in general and pro-
posed six alternative models. This time a large majority of those who responded
favoured relaxation of the rules and in October 1999 the Council resolved that
solicitors who wished to do so should be allowed to provide any legal service
through any medium to anyone whilst still providing safeguards to protect the
public interest. It was accepted that this would require legislation.290 It autho-

For a review of the various forms of alliances being formed with European lawyers see ˜Rocky
Road to Union™, Law Society™s Gazette, 26 June 2001, p. 26.
811 Reform of the profession “ current issues

rised its working party to develop two interim models of MDPs: Model A, a
solicitors™ ¬rm with a minority of non-solicitor partners, and Model B, ˜linked™
partnerships of lawyers and non-lawyers to share fees.
The main interim model proposed by the working party was Model A “ ˜Legal
Practice Plus™ “ which would allow solicitors to take non-solicitors into part-
nership (NSPs) provided the practice remained in the control of the solicitor
partners and the services provided were of the kind normally provided by a
solicitor™s practice. The proposal was that the NSPs would be regulated by the
Society under a contractual scheme established under its Charter (as opposed
to its statutory) powers. In return for being entered on a register, NSPs would
agree to be subject to Law Society regulation.
Under Model B solicitors could fee-share but not enter into partnerships with
a non-solicitor business. Examples might include franchising and licensing
A third model being canvassed, dubbed ˜TescoLaw™, would allow any
organisation, including supermarkets, to deliver legal services provided it was
properly regulated.291 Regulation might be achieved by ˜ring fencing™ the solic-
itors™ practice part of the operation as an incorporated practice. This would
require legislation to allow non-solicitors to participate in the ownership and
control of an incorporated practice. The Law Society would also need new
powers to disqualify individuals from owning a practice so as to protect the
The Law Society said that consideration was also being given to relaxation of
the restrictions on employed solicitors acting for third parties. Solicitors
employed by non-solicitors could act as solicitors only for their employers,


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