Public Law Foundations of the English and European Union Legal Systems - Coursework Example

The attempts of successive Governments to reform the legal professions are totally flawed. The reforms fail to give sufficient recognition to the central importance of advocacy before trial courts and the great diversity of services provided by solicitors to the public. Instead they are merely intended to apply principles of free market economics as a cost-cutting exercise in areas where they do not apply. Critically analyse the above statement with reference to the composition of the legal professions and their reform over the past twenty years. The legal profession and its entire system has been the course of criticism for decades yet reforms came and past yet little has been done to raise the services required to the needs of the public. It can be argued that the change has come very slowly and gradually to the legal profession. The little success achieved so far makes it hard for both the courts and the public to appreciate the flowed system. Slapper and Kelly argues:” This scarecrow of a suit has in the course of time become so complicated that no man alive knows what it means. The parties to it understand it least but it has been observed that no two chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises”1 It is important to mention that the English legal system has a very rare feature with two divisions. A lawyer is either a solicitor or a barrister. The two branches has its separate training requirements, and customs of practice. A solicitor can be regarded as a general practitioner, who deals with clients direct and, when a particular specialism or litigation is needed, will engage the services of counsel, that is a barrister. The standard route to qualification is a minimum second class lower(2:2) qualifying law degree followed by a one-year Legal Practice Course and then a two year traineeship. Non-law graduates can complete the Postgraduate Diploma in law in one year and then proceed as a law graduate. Once the traineeship is complete, a trainee may apply to the Law society (the governing body) to be admitted to the profession. The barrister is often thought of as a court advocate, although many of them spend more time drafting, pleadings and writing advices for solicitors. The Bar had been organised as an association of the members of the Inns of court as early as the fourteenth century. The entry requirement to the bar is a qualifying law degree. The General council of the Bar do also consider non-law graduate with a condition of completing a post-graduate diploma in law. Once a student completes the Bar course successfully is called to the Bar, as long as he or she meets the requirements by his Inn(currently 12 dinners). It is also important to mention that the General council of the Bar of England and Wales and the four Inns of court governs the Bar. It is responsible for the Bar’s code of conduct, and any disciplinary matters. Although traditionally barristers have been seen as the people who work as advocates in court and solicitors as the paper pushers this is not entirely true. Solicitors actually do more advocacy work. It is concentrated in certain courts and is generally speaking less complex. The desire to have more solicitors doing more advocacy work brought a series of major changes to the legal profession. The introduction of the courts and legal services Act 1990 removed the Bar’s sole right to appear in cases in the crown court, High court, and Appeal courts. “The Lord Chancellor may by order provide that there shall be no restriction on the persons who may exercise rights of audience, or rights to conduct litigation, in relation to proceedings in a county court of such a kind as may be specified in the order”2 It can be argued that the Courts and Legal Services Act 1990 does not provide an exclusive right for solicitors to appear in court as advocates leaving advocacy in the hands of barristers. No change really. The automatic extension of solicitors’ rights of audience was rejected denying the public with the enlargement rights yet the Act allows lay people to conduct litigation under section 12 of the Act. Under the CLSA, the Law society is able to seek to widen the category of those who have such rights. Applications are made to the Advisory committee through the Lord Chancellor. If the committee favours the application, it must also be approved by four senior judges including the Master of the Rolls and the Lord Chief Justice. Each of them can exercise a veto. But the question is, how much effort has Government made to ensure that the public demands are met in advocacy work? Slapper & Kelly states: ”The Government’s aim is to ensure that the professions are properly subject to competition. In most cases, the theory of modern capitalism is that open competitive markets are the best way to ensure that consumers get the best possible service”3 The idea perpetuated above by Government is a pure waste of the taxpayer’s resources that does not benefit the public. Much is desired to change this type of thinking on the part of Government. On the problems the public faces in the process of justice, Lord Woolf stated:”…This situation arises precisely because the conduct, pace and extent of litigation are left almost completely to the parties. There is no effective control of their worst excess…..As Lord Williams, a former chairman of the Bar Council, said in responding to the announcement of the Inquiry, the process of law has moved from being “servant to master, due to cost, length and uncertainty.”4 Lord Woolf further stressed that the complexity of the present procedure for conducting litigation impedes access to the courts and imposes an unnecessary burden upon the parties. The problem is said to be greater when a party is not represented but also applies to the parties’ professional advisers. Until recently the poor consumers could not sue solicitors or barristers for negligence performance in court or for work that was preparatory to court work.. Lord Styn makes a key observation in Arthur JS Hall & Co v Simons5:” ….Public confidence in the legal system is not enhanced by the existence of immunity…..The practice of law has become more commercialized…..If they(clients)have suffered a wrong as the result of the provision of negligent professional services, they expect to have the right to claim redress. It tends to erode confidence in the legal system if advocates alone among professional men, are immune from liability for negligence.” In 2004, the Secretary of state for constitutional Affairs asked Sir David Clementi to review the regulation of the legal profession and to report to him with recommendations. Sir Clementi argues in his report:” Nothing that I learnt during the 18 month period of my review has caused me to doubt the broad validity of Government’s conclusions. The current system is flowed.”6 The Act, brings in a new alternative business structures(ABS), which permit the introduction of multi-Disciplinary practices(MDPs),allowing non-lawyers to offer legal services-a situation which can be handled by solicitors. The poor consumer is not the beneficiary to this radical change within the legal services Act 2007. But the legal profession is. Huge sums of money will be raised through the proposed licenses. “The provisions of this part have effect for the purpose of regulating the carrying on of reserved legal activities and other activities by licensed bodies.”7 As regards to the Access to Justice Act 1999, barristers and solicitors has a right of audience before every court in relation to all proceedings. The right is not unconditional. In order to exercise it, solicitors and barristers must obey the rules of conduct of the professional bodies and must have met any training requirement that have been set, like the requirement to have completed pupilage in the case of the Bar, or to have obtained a higher courts advocacy qualification in the case of solicitors who wish to appear in the higher courts. “Every barrister shall be deemed to have been granted by the General council of the Bar a right of audience before every court in relation to all proceedings(exercisable in accordance with the qualification regulations and rules of conduct of the General council of the Bar approved for the purposes of section 27 in relation to the right).”8 In the case of solicitors, the Act states: ”Every solicitor shall be deemed to have been granted by the law society- (a)a right of audience before every court in relation to all proceedings(exercisable in accordance with the qualification regulations and rules of conduct of the law society approved for the purposes of section 27 in relation to the right); and (b)a right to conduct litigation in relation to every court and all proceedings(exercisable in accordance with the qualification regulations and rules of conduct of the law society approved for the purposes of section 28 in relation to the right).”9 In conclusion, it can be submitted that although a few changes came through the courts and legal services Act 1990, Access to Justice Act 1999, and the Access to Justice Act 2007, much is desired to change the Government’s approach to real change the legal profession needs. The real change must be consumer centered rather than the free market economics. It must be argued that solicitors should be given the full audience as their fellow barristers to ensure that the public fully benefits. Total Word Count:1,498 Excluding Bibliography BIBLIOGRAPHY Slapper,G, & Kelly, D(2009),The English Legal System, 10th ed, Cavendish Publisging, London Slapper, G, & Kelly, D(2004),The English Legal System,7th ed, Cavendish Publishing, London Abel, R,(1988),The Legal Profession in England & Wales, OUP, Oxford Cocks, R,(1983), Foundations of the Modern Bar, Sweet & Maxwell, London Elliott, C, & Quinn, F(2008),English Legal System, 9th ed, Longman, London Elliott, C, & Quinn, F(2009),English Legal System, 10th ed, Longman, London Journals/Articles/Reports Underwood, K,(2007),’Hope continues’, Solicitors Journal, vol.151 No 46 Williamson, p,(2007),’Open and accountable; Law society Gazette, vol.104 No 48. Lord Woolf’s Interim Report(Access to Justice)1996 Sir Clementi’s report(Access to J ustice)2004 Statutes The Courts and Legal services Act 1990 The access to Justice Act 1999 The access to Justice Act 2007 Read More