Solicitors have automatic right of audience to conduct cases in Tribunals, Magistrates’ Court and County Court, and were in 1986 given a limited right of audience in the High Court, and can appear in appeals to the Crown Court from the Magistrates’ Court or on committal for sentence. Extended rights were given under the Court and Legal Services Act 1990 and Access to Justice Act 1990.
However, the only way to qualify for rights of audience in the higher courts will now be via a ‘development’ route which involves a compulsory training course, followed by knowledge and skills assessments. An ‘experience’ period will also be necessary, evidenced by a portfolio of cases and advocacy experience over a 12 month period. This change is as a result of the provisions under The Access to Justice Act 1999. On this basis, all Solicitors can have full rights of audience.
Solicitors are governed by the Law Society which controls such areas as qualification, admittance to the Roll of Solicitors, supervision of the accounts of solicitors, grievance procedures against solicitors, and discipline. The Bar Council is the barrister’s governing body. It was formed in 1894. Its purpose is to maintain the standards and independence of the bar. It also deals with questions of professional etiquette, but it has no disciplinary powers. Disciplinary powers lie with the ‘Senate of the Inns of Court’ which has the power to disbar a barrister.
Solicitors limit their firms liability in many instances since law does not permit solicitors to incorporate themselves. The majority of solicitor practices as a result operate as partnerships, thus this has the added advantage of several areas of expert advice being immediately available. Aswell as this each partner can specialise in one branch of the law. Similarly by law, barristers are not permitted to incorporate themselves, nor may they enter into a partnership. Thus, they work by themselves and for themselves and for this reason, similarly many specialise in a limited branch of the law.
In respect to possible claims against a solicitor for negligence all solicitors are obliged to take out a professional indemnity insurance policy. There is also a necessary requirement to pay into the Law Society’s Compensation Fund which was set up to repay the Clients of Solicitors who have been fraudulent or dishonest. Previously solicitors had limited immunity from such claims but this was only in circumstances where litigation work was being carried out which should have been carried out by a barrister as illustrated in the case of Saif Ali -v- Sydney Mitchell (1978 ) where it was held that this immunity did not extend to work outside court e.g. preparation, advice. This has now changed, however, and the House of Lords abolished advocates immunity from negligence, as illustrated in (Arthur J.S. Hall & Co. –v- Simons)
In respect to the position of Barristers in relation to claims of negligence on the grounds of "public policy" it used to be that a barrister (and a solicitor) couldn’t generally be held liable in negligence for the manner in which he conducted a court case or for any matters connected with a case before it reaches the court. However, on matters of a non-litigious nature, liability could attach as illustrated in the case of Rondel -v- Worsley (1967), and Saif Alli -v- Sydney Mitchell and Co.(1978). The reasons given were that if a Barrister could be sued for negligence, it would mean a retrial of the original case. This would open the door to every dissatisfied litigant and lead to a multitude of pointless actions. However, this has changed due to the landmark House of Lords decision in Arthur J.S. Hall & Co. -v- Simons (2000) where it was held that a barrister can now be sued for negligent conduct of a case in court and for negligent preparation at the pre-trial stage
The ways in which the two roles of Solicitor and Barrister interlink with one another can be shown since it is not permissible for a private individual to approach a barrister directly. What must happen is that a solicitor must introduce the client to the barrister. In a way, this works to the client's advantage, for he does not have to search around for a barrister who specialises in the particular area upon which he needs advice.
However the the position has changed slightly under the provisions of The Courts and Legal Services Act 1990 in that some professionals do have the right to approach a Barrister direct (i.e. accountants and other specialists) and under s. 61 this right is extended to provide for Barristers to enter into a contract with clients direct for the provision of services. However this has caused wide spread debate
In relation to the role of judges within the legal system, up until recently barristers dominated judicial appointments above circuit judgeships. However, s.71 and Schedule 10 of the Courts and Legal Services Act 1990 amends the statutory qualification for judicial and other appointments, and the Lord Chancellor can now pick the person he considers most suitable. Thus potentially opens up appointment to the judiciary to others apart from Barristers.
By way of section 13 of the Supreme Court Act 1981 the hierarchy of the judges is laid down and is as follows: The Lord Chancellor who is unique in being a political appointment. The Lord Chief Justice of England and Wales, The Master of the Rolls, The President of the Family Division of the High Court and this post presides over the Family Division of the High Court and the holder is appointed by the Queen on the advice of the PM, The Vice Chancellor, Lords of Appeal in Ordinary (Law Lords), Lords Justices of Appeal, High Court Judges (puisne Judges) these are judges of the High Court. There are some 83 of them divided among the three divisions, the far greater majority being in the Queens Bench Division, Circuit Judges, Recorders and finally is the role of the District Judges
Prima facie it seems that the present organisation is capable of satisfying the legitimate expectations of those using or involved with the legal profession. However contrary to this view is the division of the legal profession into two branches which has been a topic of much discussion in recent years subsequently The Courts and Legal Services Act 1990 and the Access to Justice Act 1999 (together with the Legal Services Consultative Panel set up under the AJA) now have different ideas and there is little doubt that it will not be long before the two professions, to all intents and purposes, merge. However there has been much spread debate on the advantages and disadvantages associated with the fusion. For example in favor of fusion is the argument that functions overlap in the present system, both in advocacy and in specialisation in subject matter. Many solicitors are advocates and spend much of their working life in Magistrates and County Courts and, particularly in the larger firms, many solicitors are highly specialised. On the other hand an argument against fusion is in relation to the service provided to judges. a judicial system that relies heavily on oral trials, judges need clear argument and guidance to lead them to the correct decision. Such a service can only be provided by a select group of professional advocates.
(b) Q: What are the advantages and disadvantages of there being a Ministry of Justice in the UK?
In assessing the advantages and disadvantages associated with there being a Ministry of Justice (MoJ) in the U.K it is important to point out that prior to May 2007 the U.K had no such role. Despite the fact that this role is very common within other jurisdictions, nonetheless there were a number of politically appointed officials who had the responsibility for matters concerning law and justice. For example: the Lord Chancellor was responsible for the courts and to a certain extent the legal profession and the Home Secretary was responsible for police and prisons.
In May 2007 the new Ministry was created and took over the responsibilities that were previously the responsibility of individual departments
The Ministry is headed by the Lord Chancellor who also became the Minister of Justice, he has delegated responsibilities to various other Ministers of State and Parliamentary Under-secretaries of State, who assist the Lord Chancellor. These include For example: Minister of Justice who is to deal with the overall strategy, the resourcing of his departments; major constitutional issues; appointments, including all judicial appointments; Royal, church and hereditary issues and lord lieutenants; Privy counsellors; and correspondence with cabinet ministers and the higher judiciary.
The aims of the MoJ are to reduce re-offending and to protect the public; to promote justice; to provide access to justice for all; to increase confidence in the justice system; to uphold people's human, information and democratic rights; and to safeguard and reform the constitution.
Primarily proposals for such a ministry dated back to 1918, however there have been a number of arguments against such an idea. Opponents of the idea claimed that the danger to the legal system would be that it would rest under the control of a Minister in the House of Commons who would act in accordance with Political thought Also it was stated by Jackson, “successive holders of office have testified that it is beyond the strength of any one man to perform the work that ought to be done.' (Jackson).
Another argument against such a minister is that this role will ultimately go against the concept of the “separation of powers.” This is based on the idea that in the U.K the Government is divided into three units the legislative, the executive and the judiciary. In turn the bodies who make the law should differ from those who administer the effects of governmental decisions who should also differ from those who administer the law. Accordingly there could be no one person exerting an influence which would favor the Government more than it would the people. Furthermore it can be seen that the judiciary is independent It could, therefore, be dangerous for there to be a Government Minister (politically appointed) who was, for example, in charge of the Judiciary. Judges quite often decide on matters involving the Government or individual Ministers as to whether their actions were legal or illegal. The rule of law guarantees their impartiality.
However the constitutional disputes that began before the MoJ even opened its doors continues. Just after the government announced that the MoJ was to be established, the Lord Chancellor claimed that the MoJ would “strengthen further the already strong judicial-executive relationship set out in the concordat..., which sets out the roles and responsibilities of the Lord Chancellor and the judiciary”. However, this seems to be at odds with the Lord Chief Justice’s opinion on the subject. He responded to the announcement with a statement detailing the important issues of principle that the creation of the MoJ raised: “structures are required which will prevent the additional responsibilities of the new ministry interfering with or damaging the independent administration and proper funding of the court service and the continuing problems of prison overcrowding and the availability of resources to provide the sentences imposed by the courts necessitate public debate”.
In conclusion despite the arguments for and against the creation of the MoJ in May 2007 the plans went ahead. However, many important issues of principle between the executive and the judiciary have not been resolved. Judges are concerned that they will come under pressure to adjust their sentencing practice to accommodate the prison-overcrowding crisis. Magistrates have also backed the judges' calls for constitutional safeguards to protect their independence. With no new money being made available to the new MoJ, despite its expanded remit, there is a further fear that the Court Service's and the legal aid budgets will be squeezed to deal with the ever-growing prison population.
