Legal Services Act 2007 (Approved Regulators) Order 2011

Lord McNally Excerpts

Tuesday 5th April 2011 Lords Chamber

Moved By

[Lord McNally]

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

[The Minister of State, Ministry of Justice (Lord McNally)]

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

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

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

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

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

I commend this order to the House.

[Baroness Gale]

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

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

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

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

--- Later in debate ---

[Lord McNally]

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

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

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

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

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

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

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

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

Motion agreed.