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Rights of audience report published

18 January 2010

An independent review of the system of rights of audience in the Supreme Courts has published its draft findings for comment.

The review was commissioned by Justice Secretary Kenny MacAskill last September, following concerns expressed by the Lord Justice Clerk, Lord Gill, in an appeal court ruling, and a call for a review by the Law Society of Scotland.

The main recommendations of the review, which is chaired by investment banker Ben Thomson, are:

  • A universal standard examination for admission as a pleader in the supreme courts should be established and all pleaders should be reviewed on a regular cycle
  • There should be one code of conduct for all pleaders
  • The complaints process should be enhanced and provide for one process for advocates and solicitor advocates.

Common standard

The review states as its philosophy that any recommendations should lead to a better service for all court users in the supreme courts in Scotland, and any changes should reduce the risk of a litigant suffering injustice through being inadequately represented.

It continues: "There is a balance to be achieved between establishing common standards that will ensure consistency and reduce confusion for all court users, whilst at the same time maintaining competition between alternative sources of people capable and qualified to plead in the Supreme Courts.

"The balance we have sought is to retain the separate identities, systems and business models of advocates and solicitor advocates but to recommend that all pleaders in the Supreme Courts should have one standard qualification process to be able to appear, one code of conduct as it relates to appearance work, a common monitoring process and one system of complaints."

Recognising that much detail needs to be worked out, the review has "not sought to be prescriptive in the areas that we consider are best left to those who know the minute details, but have instead tried to describe the overall outcome we believe will improve the current system".

Its proposed test for admission as a "pleader" should comprise three elements: knowledge of ethics, procedure and evidence; practical ability in relevant areas of supreme court business; and relevant experience of cases. If such a test is instituted, admission to Faculty or as a solicitor advocate would no longer be sufficient in itself to confer rights of audience, unless passing the test became a precondition of admission.

Transfer between the branches of the profession should then be able to become "merely procedural".

All those admitted should also have their rights of audience reviewed after every three or five years in order to establish their continued skill in the role. The additional training and reviews should not involve public money.

Monitoring

The common standards and code recommended should extend to court dress and also to legal aid rules. A common disciplinary process is also recommended, carried out by the Scottish Legal Complaints Commission whether relating to service or conduct but working with the relevant professional body where relating to conduct, with a single tribunal where disciplinary proceedings are taken.

The review also believes that the "rule 3" obligation on a solicitor advocate to advise a client of the considerations for and against using an advocate should be retained. A solicitor should continue to be able to instruct a solicitor advocate from his or her own firm, but "in the context of full observance of rule 3".

As there have been a number of consequences that may not have ben anticipated when solicitor advocates were introduced, the Law Society of Scotland should be "more proactive in monitoring, regulating and engaging in resolving issues that come to light in the operation of the extended rights of audience". Both it and the Faculty should consider carefully how they will monitor the effect of any further changes to be introduced following the review.

An issue the review does not explore, but expresses a view, is that "More should be done to encourage solicitor advocates to apply to become QCs and also to eventually become judges."

Mr Thomson said: "There is a great deal that we can be proud of in our legal profession in Scotland, and I believe that maintaining the two separate branches of the profession preserves our strong Scottish traditions and encourages healthy competition. However it is apparent that there are different rules and conventions surrounding advocates and solicitor advocates which can cause issues.

"Our recommendations look to address these issues, by proposing a common qualification, common standards, and a common monitoring and complaints process for all pleaders. We have been pleased to see that there is widespread support for these proposals amongst those with whom we have discussed them."

Welcome

Mr MacAskill said: "I welcome the publication of this draft report – it is an important step in the review process and provides an opportunity for stakeholders to comment."

Law Society of Scotland President Ian Smart said: “We want to see changes brought in that will make sure that we have a fair and effective system that works for everyone and that clients are properly represented in court whether by an advocate or a solicitor advocate. While there are further discussions to be had on the detail, the review’s findings make clear those areas that work well in addition to identifying those which require change.

“This is very much a draft report and further consideration must be given to the report’s recommendations and their implementation – for example, whether there should be a single complaints process for those appearing in the supreme courts. We will continue to contribute to discussions before the final report is published in March this year."

Ruchard Keen, Dean of the Faculty of Advocates, however commented that without the detail, the report had not addressed the issues of principle – for example, the fact that whereas advocates had an all-round training, most solicitor advocates specialised in one area of the bar.

Comments are now being invited on the draft report. The review is expected to publish its final report in March.

Click here to access the draft report.

Comments should be submitted by 19 February 2010 to thomsonreview@scotland.gsi.gov.uk
 

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