Summary
Advice to the Lord Chancellor
The Legal Services Consultative Panel (LSCP) was established by the Access to Justice Act 1999 in January 2000.
The Panel has considered a reference made to it by the Lord Chancellor concerning an application to amend paragraph 1001 of the Bar's Code of Conduct and Annex A of the International Practice Rules to enable foreign lawyers to act as suitably qualified persons. The advice was given in December 2002.
The advice is published on behalf of the Panel by the Lord Chancellor's Department.
Copies of the Panel's advice are available from the Panel Secretariat (tel: Jan Farenden on 020-7210 8816 or e-mail Jan on: Jan Farenden
The panel comprises:
| Lord Justice Potter (Chairman) | Miss Karen Mackay | Mr John Randall QC |
| Professor John Bell | Mr Ian McNeil | Mr Simon Sapper |
| Professor Hugh Brayne | Mr Richard Moorhead | Mr Alan Street |
| Lady Elizabeth Finsberg | Ms Barbara Mensah | Ms Peta Sweet |
| Mr Charles Plant | Dr Matthew Weait |
• Principles
In considering and putting forward its advice on the application, the Panel has had regard to the principle which is central to the policy of the Courts and Legal Services Act 1990 and the Access to Justice Act 1999, namely the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate 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 efficient administration of justice.
The Panel also took account of the five principles of good regulation identified by the Better Regulation Task Force (an independent group established in 1997 to advise the government) against which the appropriateness and effectiveness of any type of regulation should be tested, namely transparency, accountability, targeting, consistency and proportionality.
• The General Council of the Bar's application
Under the Bar Council's existing Code of Conduct, newly qualified barristers are required to practise for their first three years after completing pupillage in chambers or in an office where there is a suitably qualified person as defined in the rules.
In the light of the provisions of the EU Establishment Directive, the Bar Council reviewed the three-year rule in relation to those newly qualified barristers who choose to work within the European Union. In seeking to facilitate the establishment of these newly qualified barristers, the Bar Council has taken into account the need to protect consumers of legal services. Consequently the Bar Council has submitted proposals to the Lord Chancellor, which provide for suitably qualified foreign lawyers to supervise newly qualified barristers working within the European Union. The Bar Council will consider each application from foreign lawyers to act as a 'qualified person' on a case by case basis.
The Panel has been asked by the Lord Chancellor to provide advice on the application.
• Conclusion
In the Panel's view, the rule change will be of benefit to barristers who wish to practise in Member States of the European Union, but who have not completed three years' practice under the supervision of a qualified person and the Panel advises that the rule should be approved. However, the Panel considers that the Bar Council should be somewhat more rigorous than presently proposed in its consideration of applications from foreign lawyers. In this respect the Panel advises that the Lord Chancellor should approve the Bar Council's proposed rule change subject to the following conditions:
the Bar Council should make it a requirement that any application from a foreign lawyer seeking to act as a 'qualified person' should include:
• Introduction
This advice relates to the General Council of the Bar's application to the Lord Chancellor dated 23 May 2002 to amend paragraph 1001 of the Bar's Code of Conduct and Annex A of the International Practice Rules to allow foreign lawyers to act as suitably qualified persons to supervise barristers practising in Member States of the European Union during their first three years of practice. The application was made under section 29(3) and Part II of Schedule 4 of the Courts and Legal Services Act 1990, as amended by Schedule 5 of the Access to Justice Act 1999. The Lord Chancellor referred the proposed change to the Panel for its advice under section 18A(3)(b) of the Courts and Legal Services Act 1990. The Panel considered the referral at its meetings on 28 October 2002 and 25 November 2002.
In considering and putting forward its advice on the application, the Panel has had regard to the principle which is central to the policy of the Courts and Legal Services Act 1990 and the Access to Justice Act 1999, namely the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate 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 efficient administration of justice.
The Panel also took account of the five principles of good regulation identified by the Better Regulation Task Force (an independent group established in 1997 to advise the government) against which the appropriateness and effectiveness of any type of regulation should be tested, namely transparency, accountability, targeting, consistency and proportionality.
• The General Council of the Bar's application
The Bar Council has considered the position of barristers working in Member States of the European Union who have completed pupillage but have not fulfilled the requirements of the three year rule which provides for a barrister to practise for three years after pupillage in chambers or in an office where there is a suitably qualified person. A suitably qualified person is defined in rule 203.3 as a barrister or solicitor advocate who has practised for six out of the last eight years, has been entitled to exercise full rights of audience for two years and supervises no more than two other barristers.
The Bar Council was required to consider an amendment to the rules in order to comply with the EU Establishment Directive, to allow barristers wishing to work abroad to do so, even if they have not completed three years under supervision. The new rule is intended to allow foreign lawyers to apply to the Bar Council for designation as a 'qualified person' for the purpose of providing an equivalent level of supervision over the required period for barristers who practise abroad. The Bar Council proposes to consider each application for designation as a 'qualified person' on a case by case basis.
• Panel's consideration
The Panel was provided with a copy of the Bar Council's application informally and considered it at the 24 June 2002 meeting. The Panel said it would benefit from additional information which would assist consideration of the formal referral on the following topics:
The Bar Council replied to these concerns in a letter dated 24 September 2002. It appears that the Bar Council currently operates a waiver system for members of the Bar practising in England and Wales who wish to be supervised by a suitably qualified person who does not meet the requirements of the Code of Conduct. Each case is considered individually to ensure that the person is suitably qualified to supervise a barrister. A would-be supervising barrister may apply for a waiver of the usual requirements under rule 203.3. The Transitional Arrangements Sub-Committee deals with applications for waiver. The Bar Council operates an appeal mechanism for those whose applications are rejected.
The Bar Council has confirmed that the Transitional Arrangements Sub-Committee will consider an application from a foreign lawyer. In considering an application from a foreign lawyer, the Committee will look for seniority and full rights of audience equivalent to the domestic requirement in the relevant courts abroad. In respect of applications for a waiver the Committee will consider whether the foreign lawyer is of sufficient seniority and experience and is in a position to provide proper supervision. The Committee will check that the supervising lawyer is practising in the same office as the barrister being supervised. The Committee will not make any independent checks on the applicant unless it has concerns about his/her bona fides, in which case, the Bar Council will consult the appropriate governing body either abroad or in the UK.
The Bar Council has confirmed that it envisages that the system for designating a 'qualified person' abroad will work in much the same way as it does currently and all applications will go before the Transitional Arrangements sub-Committee, being considered individually and on their own merits.
The Panel considered the rule and the further information provided by the Bar Council. The Bar Council made it clear that the rule change was being sought now in order to comply with the EU Establishment Directive. The Bar Council has also received enquiries from barristers wishing to work abroad under supervision, thereby indicating a demand from the profession for this rule change to be made.
The Panel is satisfied that the rule change will provide adequate protection for consumers. The domestic system of providing waivers provides a tried and tested mechanism for dealing with applications and the Panel notes that this system will be replicated in relation to applications from foreign lawyers. However, the Panel does consider that the Bar Council should be somewhat more rigorous in its checks on applications from foreign lawyers. Whilst the Panel does not wish to make the system unnecessarily bureaucratic, it considers that the Bar Council should make it a requirement that foreign lawyer applications include a letter of reference from his/her governing body together with a personal reference from a colleague of standing.
• Conclusion
In the Panel's view the rule change will be of benefit to barristers who wish to practise in Member States of the European Union, but who have not completed three years practice under the supervision of a qualified person and the Panel advises that the rule should be approved. However, the Panel considers that the Bar Council should be somewhat more rigorous than presently proposed in its consideration of applications from foreign lawyers. In this respect the Panel advises that the Lord Chancellor should approve the Bar Council's proposed rule change subject to the following conditions:
the Bar Council should make it a requirement that any application from a foreign lawyer seeking to act as a 'qualified person' should include: