Courts and Legal Services Act 1990
Encyclopedia
The Courts and Legal Services Act 1990 (c. 41) was an Act
of the Parliament of the United Kingdom
that reformed the legal profession and Courts of England and Wales
. The Act was the culmination of a series of reports and reforms that started with the Benson Commission
in the 1970s, and significantly changed the way that the legal profession and court system worked.
The changes introduced in the Act covered a variety of areas. Important changes were made to the judiciary
, particularly in terms of appointments, judicial pensions and the introduction of District Judges, the arbitration
process of Alternative Dispute Resolution
and the procedure in the courts, particularly in terms of the distribution of civil business between the High Court
and County Court
s.
The most significant changes were made in the way the legal profession was organised and regulated. The Act broke the monopoly solicitor
s held on conveyancing
work, creating an Authorised Conveyancing Practitioners Board
which could certify "any individual, corporation or employee of a corporation" as an authorised conveyancer subject to certain requirements. The Act also broke the monopoly the Bar
held on advocacy and litigation in the higher courts by granting solicitors rights of audience
in the Crown Court
, High Court
, Court of Appeal, Court of Session
, Privy Council
, and House of Lords
if they qualify as Solicitor Advocate
s.
The Act also made many minor changes to areas as varied as family law
, criminal prosecutions and the distribution of costs in civil cases. The Act has been called "[one of] the great reforming statutes of the twentieth century" and "one of the most important pieces of legislation affecting the delivery of legal services since 1949".
During the 1960s the legal profession (barrister
s, solicitor
s, and certificated notaries
) came under fire for what was perceived to be poor performance, the high cost of conveyancing
, and its failure to deal with the needs of all levels of society. In response, the Labour government under Harold Wilson
created a Royal Commission
on Legal Services, known as the Benson Commission
(after its chairman Sir Henry Benson
), which was asked to "examine the structure, organisation, training and regulation of the legal profession and to recommend those changes that would be desirable to the interests of justice".
The Commission frightened the legal profession, which believed that they were likely to face severe structural changes and lose their monopolies on probate
work and conveyancing
work. Their fears were unfounded, however—when the report was published in 1979 it did not propose any radical changes, with one editorial describing it as "characterised by an over-anxiety not to offend the professional establishment". In particular it ruled out the possibility of partnerships between barristers, upheld the idea of a split profession (one with both solicitors and barristers, in contrast to a fused profession
) and also rejected the suggestion to allow solicitors rights of audience
in the High Court
. The report concluded that the practice of law was a profession, and that a profession had to be independent of government, because without independence the interests of a client cannot be a primary consideration. As such, since the legal profession regulated itself through organisations such as the Law Society
and Bar Council, it was best if it stayed independent of government interference. The Commission did recommend an examination of the court and legal procedures to see if time and money could be saved for the parties involved.
The government response to the Benson Committee's report was published in 1983, and established a Civil Justice Review to examine court procedure. The report of the review board was put before the House of Commons on 7 June 1988,
in 1982 highlighted severe problems in the way solicitor
s regulated themselves. Leslie Parsons filed a complaint against his solicitor, Glanville Davies, a respected solicitor and member of the Council of the Law Society of England and Wales
, the solicitors' professional body. Davies had charged Parsons £197,000 for legal services, a "grossly inflated and inaccurate legal bill" which was reduced to £67,000 without Davies complaining. Despite this the Law Society took no disciplinary action, allowing Davies to resign from the Council on grounds of ill-health with his reputation intact.
An investigation by the Lay Observer and the Law Society itself (which became known as the Ely Report) highlighted "an appalling catalogue of errors, insensitivity and poor judgment" in the handling of the Davies Affair by the Law Society internal disciplinary organisation, with "administrative failures, wrong decisions, mistakes, errors of judgement, failures in communication and insenstivity... the whole affair was a disgrace to the Society". The Society paid compensation to Parsons for their mishandling of the situation, and said that they would compensate victims of similar cases where they had failed to investigate complaints with reasonable care.
As a result of this and similar controversies, Alf Dubs
introduced a private member's bill
to move the responsibility of regulating the solicitors profession to a body outside the Law Society. After pressure from the Law Society and several of the larger regional societies, the reforms were toned down, and the final proposal (which was implemented on 31 August 1986) kept the responsibility of regulating the solicitors' profession within the Law Society but increased the separation of functions within the Society and required that the majority of the people on regulatory committees be lay people
(not solicitors).
monopoly. Before 1983, only solicitors had been authorised to take part in conveyancing
work—for anyone else to draft documents relating to the transfer of property was a statutory offence. In December 1983 Austin Mitchell
, a Labour
Member of Parliament who had been one of the initial supporters of Alf Dubs
' private member's bill introduced a private member's bill of his own called the House Buyers Bill. This aimed to remove the restrictions on conveyancing, and although the government opposed it they made it clear that they planned to allow banks and building societies to carry out conveyancing for their customers, and would also be prepared to allow non-solicitors with suitable qualifications to carry out conveyancing work as well.
After negotiations with the government, Mitchell withdrew his bill in exchange for a guarantee that the government would allow non-solicitors to undertake conveyancing work once a Committee had set out proposals for protecting consumers who used these new conveyancers against losses. The Committee, known as the Farrand Committee (after its chairman, Julian Farrand), finished its report in September 1984. The government almost immediately changed the rules to allow for licensed conveyancer
s, introducing the changes with a section in the Administration of Justice Act 1985. Despite worries that this would bankrupt solicitors who specialised in conveyancing work, very few licensed conveyancers began practising due to the difficulties in qualifying, and although the field has become more competitive there has been no substantial loss of revenue like that feared.
Solicitors were more scared by the proposal that banks would be allowed to offer conveyancing services, but this suggestion eventually came to nothing. The government introduced a consultation paper on the subject in April 1984, but in December 1985 announced that it "was not satisfied that lending institutions could safely be permitted to offer both conveyancing and a loan in the same transaction. It is therefore proposed to prohibit the institutions from providing conveyancing, either directly or through a subsidiary company in which they hold a majority stake, to those who are also borrowing from them". This essentially killed the proposal (a framework which would allow banks to undertake conveyancing work was included in the Building Societies Act 1986
but never implemented) because the banks had no interest in lending only to people who were not also engaged in a loan agreement with them. It was well known at the time that many members of the cabinet were happy with the initial proposal, but that Lord Hailsham
was determined not to let it pass and forced the government to go against its earlier suggestion.
s turned to the barrister
's monopoly on rights of audience
and attempted to have it removed. In March 1984 the Council of the Law Society of England and Wales
attempted to press for full rights of audience for solicitors, something the Bar
was heavily opposed to. The dispute came to the attention of the public when Cyril Smith
's solicitor asked to read out a statement settling a libel action in the High Court
—he was refused, both at the High Court and the Court of Appeal
, although a practice statement issued by the Court of Appeal in 1986 indicated that they felt solicitors should be allowed to appear in front of the High Court and Court of appeal in formal proceedings.
A public debate followed, with the result being that a joint committee between the Law Society and the Bar was formed to discuss the future of the legal profession. Known as the Marre Committee after its chairwoman, Mary Marre, The Committee was established in April 1986 and made its report in July 1988. The Committee had not been a successful one—the result was split, with the solicitor members and six of the seven independent members recommending the extension of solicitors' rights of audience to the Crown Court
, with the Bar representatives and one independent member disagreeing and attaching a Note of Dissent to the final report that undermined its conclusions.
government was re-elected in 1987 it announced that it would produce a set of Green Paper
s on the work and organisation of the legal profession. These papers formed the basis of a large part of the Courts and Legal Services Act 1990.
s were published by Lord Mackay in January 1989, and were titled The Work and Organisation of the Legal Profession, Conveyancing by Authorised Practitioners and Contingency Fees. The Work and Organisation of the Legal Profession was the main paper, and stated that the overall government objective was to ensure that:
The Green Papers had several main features, the first of which was describing the new role of the Lord Chancellor's Advisory Committee on Legal Education, which was to be expanded to cover matters of professional conduct as well, and be renamed the Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC). The Committee would have fifteen members, all appointed by the Lord Chancellor
, and would be tasked with commenting on lawyers' education, training and codes of conduct. The Advisory Committee would also advise the Lord Chancellor on which bodies should be allowed to grant rights of audience
to their members.
The second main feature was for rights of audience
. Mackay proposed that all lawyers, whether barrister
s or solicitor
s, should require a certificate of competence to work in the higher courts, while their initial professional qualifications would allow them to practice in the lower courts. This proposal allowed solicitors to gain full rights of audience up to the House of Lords
with the appropriate certification, and was widely disliked by barristers and judges. The idea that barristers would not automatically have rights of audience also irritated them, and the idea that the Lord Chancellor would be responsible for defining which bodies could grant these certificates undermined the principle that the legal profession should be independent from the Government.
In terms of conveyancing
, the Green Paper proposed that the framework in the Building Societies Act would be repealed, and replaced by a system of authorised practitioners, where any person, partnership or corporate body could provide conveyancing services if they met certain standards. The authorised practitioners would have a professional code of conduct, and would be supervised by a certain number of licensed conveyancer
s and solicitor
s. The draft code of conduct had several flaws, however—it allowed practitioners to act for both parties in a transaction, causing issues with conflicts of interest, and failed to take into account the problems caused by banks and estate agents, who had interests in the housing market, being allowed to act as conveyancers.
Several different parties responded to the Green Paper
s; the judiciary published The Green Papers: The Judges' Response, the Bar
published Quality of Justice: The Bar's Response and the Law Society
published Striking the Balance: The Final Response of the Council of the Law Society on the Green Papers. The response to the Green Papers was overwhelmingly negative, both in these published opinions and generally—the consultation period was extended for a month due to disagreements with the judiciary, and an all-day debate in the House of Lords on 7 April 1989 produced an "overwhelmingly hostile response".
published a White Paper
between the Green Papers and the introduction of a bill
to Parliament
. The paper (Legal Services: A Framework for the Future) was published in July 1989, and had a different tone to that of the Green Papers, referring more to the requirement of legal services to be responsive to the needs of the client rather than the discipline of the market and problems with competition between branches of the legal profession. The white paper was divided into four sections:
The White Paper allowed for extended rights of audience
for both solicitor
s and any newly-created legal disciplines, and also allowed that for certain types of cases, particularly in the County Court
, there would be no limits on who could work as an advocate. All barrister
s would be allowed full rights of audience as soon as they completed pupillage
, as long as they comply with the code of conduct set out by the Bar
.
The Law Society
would be recognised under the Act as having the authority to declare a solicitor qualified to practice in a particular court, and solicitors would be recognised as soon as they finished their training contract
as having rights of audience in the lower courts. The monopoly on starting and conducting litigation would also be removed, allowing any recognised legal authority to certify its members as fit to work as an advocate.
was introduced to the House of Lords
on 6 December 1989 by Michael Bowes-Lyon
.
Several proposed clauses were debated in great detail, but failed to be included in the final act. Lord Mishcon
suggested that the Lord Chancellor
should be required to "ensure that reasonable standards are set" for the courts service, the aim being to avoid delays and unnecessary expense. Lord Rawlinson
made two proposals—firstly, to abolish the judicial functions of the Lord Chancellor (something that was later included in the Constitutional Reform Act 2005
), and secondly to establish a Judicial Appointments Commission to examine judicial appointments for government interference. Austin Mitchell
proposed the abolition of QC
s and the establishment of a legal services commission.
After the bill's introduction to Parliament on 6 December 1989 it was debated by the House of Lords
until 18 April 1990. On 8 May 1990 it moved to the House of Commons, where it stayed until 26 October, when it was passed. The bill received the Royal Assent
on 1 November 1990.
and County Court
s.
Almost all civil work is dealt with by either the High Court or County Courts. Prior to the Act, there was a simple financial boundary to decide which cases would go to which court—any contract
or tort
case valued at less than £5,000 would go to the County Courts, while any case valued at more than that would go straight to the High Court. Section 1 of the Act allows the Lord Chancellor
to change the financial boundaries after consultation with senior judges such as the Lord Chief Justice and the Master of the Rolls
, and also allows the Lord Chancellor to create categories based on things other than the financial value of the case, such as the complexity involved or the importance of any legal question likely to be raised. An exception to this rule is that the Lord Chancellor cannot ask a County Court to hear any case of judicial review
.
The result of this section of the Act is that any case worth less than £25,000 is dealt with in the County Courts, any case worth between £25,000 and £50,000 is dealt with in either the County Court or the High Court depending on the complexity and any case worth more than £50,000 is dealt with in the High Court. Claims worth under £3,000 are automatically dealt with by the small claims track
of the County Court. This has drastically speeded up proceedings in the High Court by making sure that only "important" and valuable cases are dealt with by them.
The County Courts Act 1984
permitted the High Court
to transfer any part of a High Court case to the County Court
s in one of three situations; firstly if the parties consent, secondly where the High Court believes the amount in dispute is below the maximum amount the County Court is allowed to deal with and thirdly where the High Court believes that the case is not likely to raise any important question of law. Before the passing of the Courts and Legal Services Act, around 13,000 cases were transferred to the County Courts each year in this way. The Act changed the system so that the High Court has a discretionary power to transfer any proceedings to the County Courts.
Section 3 of the Courts and Legal Services Act amends the County Courts Act 1984
to allow the County Court
s to award any remedy
used by the High Court
. There were several exceptions because the status of the County Courts made it illogical to allow them to write orders of mandamus
or certiorari
. The new section also allows the Lord Chancellor
to prohibit the County Courts from making certain other types of order, with these types to be introduced by Statutory Instrument
. Again, these are orders which it would be illogical to allow the County Courts to write, such as Anton Piller order
s or Mareva injunction
s.
The Act also removes certain absolute rights of appeal (allowing parties to appeal regardless of the opinion of the High Court judge) from the High Court
to the Court of Appeal
. This was hotly debated, but the Master of the Rolls
pointed out in Parliament that there is a significantly higher success rate in cases where the parties require the judge's permission to appeal than cases where the parties have absolute rights of appeal, implying that the restriction of absolute rights of appeal should cut pointless cases out of the court system and speed up the process.
and Commercial Court since 1986.
s, solicitor
s and the parties to a case had automatic rights of audience
in the County Court
s (as established by the County Courts Act 1984
). Other parties, if they were in "relevant legal employment", could also request rights of audience for a particular case. The Civil Justice Review found significant variations between courts as to who would be granted rights of audience, however, and Part I of the Courts and Legal Services Act attempted to address this. Section 11 allows the Lord Chancellor
to make an order giving rights of audience to anyone in County Court cases of a certain type.
s as well. At the same time it introduced "wasted costs", which are costs to a party as a result of "an improper, unreasonable or negligent act or omission" from the other party. The Act also applies special rules to High Court
cases that the judge believes should have been brought in the County Court—the judge can reduce any costs by up to 25 percent to take into account the unneeded expense for both parties.
The Act also introduces direct fines for parties that do not turn up to a hearing in a High Court or Crown Court case. If a party fails to attend an agreed meeting, with no warning beforehand, they can be summoned before the judge and asked to explain their behaviour. If the explanation is not satisfactory they can be fined up to £400. This section was not entirely popular with the Members of Parliament, with Lord Grantchester calling it "a sledgehammer to crack a nut".
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." This "statutory objective" was a completely new way of introducing legislation, and is intended as an aid to those who have to apply it.
in the higher courts to solicitor
s and other legal professionals. Sections 27 and 28 of Part II give an advocate rights of audience
and the right to conduct litigation if the advocate is qualified to do so, is a member of a professional body recognised by the Lord Chancellor
and that body considers him qualified to conduct litigation. A person also has rights of audience if they have been directly granted it, for example by the Lord Chancellor
in County Court
proceedings. The most immediate effect of this is that solicitor
s can now gain rights of audience in the Crown Court
, High Court
, Court of Appeal, Court of Session
, Privy Council
, and House of Lords
if they qualify as Solicitor Advocate
s. Solicitor's clerks also have rights of audience in the chambers
of judges in the Crown Court and High Court, assuming they are being instructed by a qualified solicitor.
A large amount of parliamentary time was spent debating the application of the cab-rank rule to new legal professionals granted rights of audience – the Bar argued that all people with rights of audience in the higher courts should be subject to the same rules as barrister
s, while the Law Society
argued that solicitor
s were not at that time bound by the cab-rank rule in their dealings in the lower courts, and that there was no reason why this should not be extended to the higher courts.
Michael Zander
argued that the demands for the extension of the cab rank rule to solicitors were overstated—before the passing of the Act clients had always been able to find solicitors, and there was no reason why this should suddenly change when the act came into force. The Bar won this particular argument, however, and as a result any body who can certificate advocates as qualified to hold rights of audience
in the higher courts must have a code of conduct governing advocates who refuse cases.
, which consists of a chairman (who must be a Lord of Appeal in Ordinary
, Lord Justice of Appeal
or a High Court judge
) and sixteen other members, all appointed by the Lord Chancellor
. The first chairman appointed was Lord Griffiths
, a Lord of Appeal in Ordinary. The sixteen other members are divided so that:
This section of the Act amended the House of Commons Disqualification Act 1975
to indicate that no Member of Parliament can be a member of the Advisory Committee. Committee members are to serve for five years, and provisions are made for them to be paid and for them to maintain a staff, all of which are to be paid from the Lord Chancellor's budget. The Committee is required to produce an annual report, which the Lord Chancellor must present to both the House of Lords
and the House of Commons.
The Committee is tasked with maintaining and developing standards in "the education, training and conduct of those offering legal services", and with reviewing existing training schemes and any proposals for new training schemes.
, and allows any individual, corporation or employee of a corporation to act as a conveyancer if they or the corporation is suitably qualified. Qualified people are defined as solicitor
s, barrister
s, licensed conveyancer
s and notaries
, as well as any companies and incorporated bodies found in Section 9 of the Administration of Justice Act 1985. These people can apply to become authorised conveyancers by applying to the Authorised Conveyancing Practitioners Board
, the regulatory body for conveyancing. Section 36 alsp repeals the section of the Building Societies Act 1986
that covered banks acting as conveyancers, since they are covered as "companies and incorporated bodies".
as a statutory corporation
. The Practitioners Board is tasked with developing competition in conveyancing
services to avoid monopolies, supervising the actions of licensed conveyancer
s and developing a way of monitoring said conveyancers. The Practitioners Board has the powers to both grant and refuse authorisation to conveyancing practitioners, establish a conveyancing ombudsman
and a compensation scheme for parties that suffer as a result of a conveyancer's actions appoint investigators to look into the behaviour of an authorised conveyancer. There are therefore three regulatory bodies under this Section—the Practitioners Board, the Law Society
for regulating solicitors engaged in conveyancing work and the Council for Licensed Conveyancers charged with regulating licensed conveyancers.
The Practitioners Board is the body which authorises a person or body as fit to undertake conveyancing work. The Practitioners board assumes that banks, insurance companies and building societies are by definition fit to undertake such work, while other individuals and bodies undergo a more detailed vetting process.
The Practitioners Board consists of a chairman and between four and eight other members appointed by the Lord Chancellor
, who has to take into account "[the need] to provide a proper balance between the interests of authorised practitioners and those who make use of their services" when appointing members. As with the Lord Chancellor's Advisory Committee on Legal Education and Conduct
, no Member of Parliament may be a member of the Board. Members hold their position for three years, and as with the Advisory Committee they are provided with money for a staff and running costs. They are expected to submit a report once a year to the Lord Chancellor.
Sections 41 and 42 establish Conveyancing Appeals Tribunals which hear complaints against decisions made by the Authorised Conveyancing Practitioners Board
. Decisions of the Board which are appealed do not take effect until the appeal process is complete. The tribunals are made up of three members—two lay persons (classified as people who are not practising legal professionals) and one legal professional. Any appeals to tribunal decisions go to the High Court
.
in relation to conveyancing
to be submitted to the Director, who then advises the Lord Chancellor as to the viability of the documents. The Director General can order organisations and individuals to produce any documents relating to these applications or proposed rules, and applies Section 85 of the Fair Trading Act 1973 to his duties. This Act makes "wilfully altering, suppressing or destroying any document which you are required to produce" a criminal offence.
work. Two options were given in the Green Paper
The Work and Organisation of the Legal Profession—firstly to allow more legal professionals to engage in probate work, such as Licensed Conveyancer
s, authorised conveyancers and chartered accountant
s. The second suggestion was to completely deregulate probate work, which would have allowed anyone to engage in probate work. This was problematic because of the possibility of fraud and error, but the general conclusion of the report was that there was some deregulation needed, along with a single code of conduct governing all probate work.
Section 54 of the act amends the Solicitors Act 1974
and allows the Official Solicitor
, the public trustee
, banks, building societies
and insurance companies to prepare probate documents, as well as barrister
s, solicitor
s and notaries
who were previously allowed to engage in probate work (although by convention, barristers did not). Banks, insurance companies and building societies are only allowed to take part if they sign up to a scheme for handling complaints established by the Lord Chancellor
.
Section 55 creates "authorised probate practitioners", which allows professional bodies recognised by the Lord Chancellor to authorise people as capable of drawing up probate documents. The Lord Chancellor is required to refer applications by professional bodies to the Lord Chancellor's Advisory Committee on Legal Education and Conduct
(ACLEC), which will then advise the Lord Chancellor on the validity of the application. The Lord Chancellor may refuse any application with a written reason, and the professional body applying may issue a reply within 28 days which the Lord Chancellor is required to consider. If the professional body is recognised, it may grant "authorised probate practitioner" status to any person who:
The Lord Chancellor may revoke his authorisation of a professional body to certify "authorised probate practitioners". In this case, all individuals which this body has certified cease to be valid practitioners. ACLEC may also investigate professional bodies and then advise the Lord Chancellor that it would be best to revoke their authorisation. The Lord Chancellor, if he accepts the advice, then gives written notice to the professional body, which is given three months to reply.
Section 54 also creates a new criminal offence of "providing false or misleading information in connection with an application for probate". If a person applies to become an authorised probate practitioner and makes a statement he knows to be false, or supports a statement he knows to be false, he is committing an offence. A person can also be charged if they make such statements recklessly. The Act amends the Solicitors Act 1974
to make it a criminal offence to impersonate a probate practitioner.
to replace the Lay Observer. The Ombudsman is tasked with investigating any allegation made to him about the way a complaint to a professional body such as the Law Society
about one of its members has been handled. This covers "any professional body" which relates to Licensed Conveyancer
s, barrister
s, solicitor
s, notaries
or any other body specified by the Lord Chancellor. The Ombudsman may investigate the subject of the complaint itself, but cannot investigate any matter already settled by a court, the Solicitors Disciplinary Tribunal or a Bar Disciplinary Tribunal. The Ombudsman also cannot investigate a complaint when the complaint is being investigated by the professional body, while the decision made by the professional body is being appealed or while the time limit for appeals has not yet expired. An exception to this is if the Ombudsman feels that the professional body has not completed the investigation in a reasonable amount of time, or if they have mishandled the investigation.
The Ombudsman holds his office for three years, and is appointed directly by the Lord Chancellor
. The Ombudsman may not be a Member of Parliament or a "person authorised to deliver legal services" such as a barrister, solicitor or notary. The Ombudsman has both wages and a paid staff using money drawn from the Lord Chancellor's budget. The first Ombudsman was Michael Barnes, who took office on 2 January 1991 and served for two terms.
s rather than just barrister
s. Judges of the High Court and above were still appointed by invitation only, however, although this changed with the Constitutional Reform Act 2005
.
Section 75 of the act prevents a person holding a full-time judicial office from working as a barrister, solicitor, licensed conveyancer, public notary or from working with those who are.
, and two Presiding Judges, who must be judges of the High Court
. This was simply the codification of existing practices, however, since judges already existed who would deal with the administrative work of circuit courts.
Section 73 allows the Master of the Rolls
to delegate certain functions, particularly those related to public records, manorial documents, functions relating to solicitors under the Solicitors Act 1974
and functions relating to incorporated practices
under the Administration of Justice Act 1985.
Sections 108 and 109 of the act allow Magistrates to enjoy immunity from civil suits in the same way that members of the judiciary do.
, the Registrar of Criminal Appeals and the Permanent Secretary to the Lord Chancellor's Department
62, although this can be extended by the Lord Chancellor
to 65. Previously the retirement age was 72.
Section 79 also introduces several technical rules relating to judicial pensions, with the aim being to bring the pension provisions in line with the Social Security Act 1985 and Social Security Act 1976. Firstly it provides for equality between male and female judges by allowing widowers to benefit from the scheme. It also inserts a new clause into the Judicial Pensions Act 1981 to allow HM Treasury
to cut off pension payments for widows or widowers who remarry. Section 82 of the Act allows judges to increase their pension pot by making voluntary contributions, and Section 83 allows a judge who has served for two years and is forced to retire due to ill-health access to a pension (previously a judge had to serve for at least five years).
s already set out in other statutes, such as the Administration of Justice Act 1985.
and its various forms. Part IV of the Act amends the Solicitors Act 1974
to enable the Council of the Law Society to delegate certain functions to committees and individuals, who do not necessarily need to be part of the Law Society. Some functions may not be delegated, such as setting rules and regulations related to the professional code of conduct, incorporated practices, the compensation fund and the indemnity requirements for practising solicitors.
The Act also amends the Solicitors Act in relation to paying Law Society membership fees. Under the Solicitors Act, an employed solicitor working for a large practice in the City of London
would not have to pay for new practice certificates (which help fund the Law Society) if his work was not work that only a solicitor could do. This meant that the Law Society was only being funded by some solicitors, who were being treated unfairly compared to their directly employed fellows. The Act inserts a new clause into the Solicitors Act 1974 which expands the definition of what a solicitor requiring a practising certificate is to include any solicitor who works for a firm in a way related to legal services and is employed by:
The Act also amends the Solicitors Act to allow the Law Society to restrict practising certificates for solicitors charged with or convicted of conduct involving dishonesty or deception, as well as any crime defined as a "serious arrestable offence" by the Police and Criminal Evidence Act 1984
. In addition it allows the Law Society to suspend any solicitor convicted of fraud or serious crime (if the Law Society has informed the Solicitors Disciplinary Tribunal) for six months, with a possible extension to twelve months. Since a practice certificate only lasts for twelve months, this effectively stops the solicitor from practising.
s if they register with the Law Society of England and Wales
. Section 89 of this Act allows the Law Society to make rules governing the practice of law by foreign lawyers in England and Wales, and also to make additional rules for solicitors engaged in multinational partnerships.
to allow Solicitors Disciplinary Tribunals to strike solicitors from the roll, require a solicitor or former solicitor to answer allegations, terminate a suspension from practice authorised by a Tribunal and restore the name of a struck off solicitor to the roll. The power to force a former solicitor to answer to allegations is considered the most important one, because it prevents solicitors escaping punishment by ceasing to act as a solicitor. Section 95 of the Act allows for appeals to the Law Society
's refusal to put a solicitor who was previously struck off back on the roll, with this appeal going to the Master of the Rolls
.
s. Before the passing of the act there was no contractual relationship between a barrister and the instructing solicitor, or between a barrister and his client. This made it very difficult to obtain damages or recover money if there was a problem. A barrister was paid only as a matter of honour—there was no contract requiring that he be paid for his services, and no way of gaining his fee if he was not. The way that the legal profession got around this was by making it an act of professional misconduct for a solicitor not to pay the fees of a barrister in a case.
Section 61 of the Act allows barristers to enter into contracts relating to their legal services, although it does not prevent the Bar Council
from making rules restricting who a barrister can deal with.
Section 64 amends the Sex Discrimination Act 1975
and the Race Relations Act 1976
to make it unlawful for a barrister or barrister's clerk to discriminate against women or against people "on racial grounds" when offering pupillage
s or tenancies
. This can be in relation to on what terms the pupillage/tenancy is offered, the arrangements made for who should be offered the pupillage/tenancy or the benefits, services and facilities which are "afforded or denied". It also makes discriminating when "giving, withholding or accepting" unlawful.
. The office of notary is an extremely old one, having existed since a statute in 1533, and the Act attempted to modernise the office. Previously many notaries were only allowed to act in a certain area, and Section 57 of the Act removes this geographical restriction. The Act also gives the Master of the Faculties
, in Section 57, the power to "make provision concerning the education, training, practice, conduct and discipline of notaries", along with the way they keep records and accounts, their professional indemnity arrangements and a compensation scheme for people who lose money as a result of the dishonesty of a notary.
, a method of Alternative Dispute Resolution
(ADR). Among other things it gives new powers to the High Court
to exercise powers conferred by the arbitrator, and gives the arbitrators more powers to dismiss claims or counter-claims.
to appoint arbitrators to panels of 3 arbitrators where one has not been selected within a reasonable time. Previously the Arbitration Act only covers the appointment of individual arbitrators.
.
. Section 9 allows the Lord Chancellor
to transfer any family law case to any specific judge or type of judge. Section 10 makes provisions for the appointment of clerks to the Inner London Crown Court
, and Section 166 extends certain elements of the Children Act to Northern Ireland
.
Schedule 16 gives the Secretary of State
the power to appoint guardians ad litem
and also gives the guardian access to records on the child they are responsible for. Section 16 modifies the Children Act to take into account the decision in R. v Newham London Borough Council ex parte P by considering parents of a child in care "parents" only if the child stays with them for more than 24 hours—previously the Local Council would only have to provide accommodation for the child if the child was not with its parents, regardless of how long the child had been with the parents.
necessitated changes to the way legal aid worked. Section 59 of the Act allows the defendant in the Crown Court
to decide what sort of "legal representative" (barrister
or solicitor
) they would like to represent them. This was put in after pressure from the Bar Council
and the Law Society
, both of which were worried that the other part of the legal profession would get the majority of the cases. There are exceptions, however—in the Magistrates' Court
legal aid only provides for a solicitor, because the case is so simple that it would be a waste of money to employ a barrister.
when those actions were not ordered by any person acting in a judicial authority. This makes the court and tribunal staff more accountable for their actions, and also provides a means of redressing problems faced by users of the courts or tribunals.
, Crown Court
or Court of Appeal
to order a legal representative in a criminal trial to pay for any "wasted costs" (costs to a party as a result of "an improper, unreasonable or negligent act or omission" from the other party). The legal representative may appeal this decision in the Magistrates' Court or Crown Court, but not in the Court of Appeal.
The procedure is similar in a civil case, with the exception that the legal representative can try and prove that the costs were not "wasted", and that the order to pay wasted costs must be made within six months of the case.
who are not Crown Prosecutors to appear on behalf of the CPS at bail
hearings in court. They are not as independent in such circumstances as a Crown Prosecutor would be, because they can only act in accordance with instructions given to them by a Crown Prosecutor. Schedule 18 modifies the Prosecution of Offences Act 1985 to allow the Lord Chancellor
to modify the rights of audience
of Crown Prosecutors.
only, some sections extend to Scotland
and Northern Ireland
. Particular examples of this are the amendments to the Children Act 1989
and the rules on judicial pensions and appointments.
The act was implemented at different times—some sections came into force on 1 November 1990, such as the allocation of business between the High Court
and County Court
s, Some came into force on 1 January 1991 such as the new discrimination laws in relation to barrister
s and barrister's clerks and some came into force at later dates determined by the Lord Chancellor
.
The clause on judicial pensions came into force on 1 January 1992 in the Statutory Instrument (SI) "Courts and Legal Services Act 1990 (Commencement No 7) Order 1991". On 1 October 1991 the clauses on multinational partnerships and the modifications to the Children Act came into force with the SI "Courts and Legal Services Act 1990 (Commencement No 6) Order 1991".
The clause dealing with elimination of certain absolute rights of appeal came into force on 1 June 1992 through the Si "Courts and Legal Services Act 1990 (Commencement No 9) Order 1993". At the same time the clause on recovery of costs in civil cases came into force with the SI ",
Acts of Parliament in the United Kingdom
An Act of Parliament in the United Kingdom is a type of legislation called primary legislation. These Acts are passed by the Parliament of the United Kingdom at Westminster, or by the Scottish Parliament at Edinburgh....
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
that reformed the legal profession and Courts of England and Wales
Courts of England and Wales
Her Majesty's Courts of Justice of England and Wales are the civil and criminal courts responsible for the administration of justice in England and Wales; they apply the law of England and Wales and are established under Acts of the Parliament of the United Kingdom.The United Kingdom does not have...
. The Act was the culmination of a series of reports and reforms that started with the Benson Commission
Benson Commission
The Royal Commission on Legal Services, commonly known as the Benson Commission was a Royal Commission set up the by Labour government of Harold Wilson to "examine the structure, organisation, training and regulation of the legal profession and to recommend those changes that would be desirable to...
in the 1970s, and significantly changed the way that the legal profession and court system worked.
The changes introduced in the Act covered a variety of areas. Important changes were made to the judiciary
Judiciary of England and Wales
There are various levels of judiciary in England and Wales — different types of courts have different styles of judges. They also form a strict hierarchy of importance, in line with the order of the courts in which they sit, so that judges of the Court of Appeal of England and Wales are generally...
, particularly in terms of appointments, judicial pensions and the introduction of District Judges, the arbitration
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
process of Alternative Dispute Resolution
Alternative dispute resolution
Alternative Dispute Resolution includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. ADR basically is an alternative to a formal court hearing or litigation...
and the procedure in the courts, particularly in terms of the distribution of civil business between the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
and County Court
County Court
A county court is a court based in or with a jurisdiction covering one or more counties, which are administrative divisions within a country, not to be confused with the medieval system of county courts held by the High Sheriff of each county.-England and Wales:County Court matters can be lodged...
s.
The most significant changes were made in the way the legal profession was organised and regulated. The Act broke the monopoly solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s held on conveyancing
Conveyancing
In law, conveyancing is the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien....
work, creating an Authorised Conveyancing Practitioners Board
Authorised Conveyancing Practitioners Board
The Authorised Conveyancing Practitioners Board is the regulatory organisation and professional association for authorised conveyancers in the United Kingdom...
which could certify "any individual, corporation or employee of a corporation" as an authorised conveyancer subject to certain requirements. The Act also broke the monopoly the Bar
Bar council
A bar council , in a Commonwealth country and in the Republic of Ireland, the Bar Council of Ireland is a professional body that regulates the profession of barristers together with the King's Inns. Solicitors are generally regulated by the Law society....
held on advocacy and litigation in the higher courts by granting solicitors rights of audience
Rights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not ; there is no such...
in the Crown Court
Crown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
, High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
, Court of Appeal, Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
, Privy Council
Privy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...
, and House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
if they qualify as Solicitor Advocate
Solicitor Advocate
Solicitor advocate is the title used by a solicitor who is qualified to represent clients as an advocate in the higher courts in England and Wales or in Scotland.-Origin:...
s.
The Act also made many minor changes to areas as varied as family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
, criminal prosecutions and the distribution of costs in civil cases. The Act has been called "[one of] the great reforming statutes of the twentieth century" and "one of the most important pieces of legislation affecting the delivery of legal services since 1949".
Benson Commission
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s, solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s, and certificated notaries
Notary public
A notary public in the common law world is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business...
) came under fire for what was perceived to be poor performance, the high cost of conveyancing
Conveyancing
In law, conveyancing is the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien....
, and its failure to deal with the needs of all levels of society. In response, the Labour government under Harold Wilson
Harold Wilson
James Harold Wilson, Baron Wilson of Rievaulx, KG, OBE, FRS, FSS, PC was a British Labour Member of Parliament, Leader of the Labour Party. He was twice Prime Minister of the United Kingdom during the 1960s and 1970s, winning four general elections, including a minority government after the...
created a Royal Commission
Royal Commission
In Commonwealth realms and other monarchies a Royal Commission is a major ad-hoc formal public inquiry into a defined issue. They have been held in various countries such as the United Kingdom, Australia, Canada, New Zealand, and Saudi Arabia...
on Legal Services, known as the Benson Commission
Benson Commission
The Royal Commission on Legal Services, commonly known as the Benson Commission was a Royal Commission set up the by Labour government of Harold Wilson to "examine the structure, organisation, training and regulation of the legal profession and to recommend those changes that would be desirable to...
(after its chairman Sir Henry Benson
Henry Benson, Baron Benson
Henry Alexander Benson, Baron Benson was a British accountant best known as a partner of Coopers & Lybrand, an advisor to the Bank of England, his work organising the accountancy profession as president of ICAEW and for the part he played in various Royal Commissions.Born in Johannesburg to...
), which was asked to "examine the structure, organisation, training and regulation of the legal profession and to recommend those changes that would be desirable to the interests of justice".
The Commission frightened the legal profession, which believed that they were likely to face severe structural changes and lose their monopolies on probate
Probate
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A probate court decides the validity of a testator's will...
work and conveyancing
Conveyancing
In law, conveyancing is the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien....
work. Their fears were unfounded, however—when the report was published in 1979 it did not propose any radical changes, with one editorial describing it as "characterised by an over-anxiety not to offend the professional establishment". In particular it ruled out the possibility of partnerships between barristers, upheld the idea of a split profession (one with both solicitors and barristers, in contrast to a fused profession
Fused profession
Fused profession is a term relating to jurisdictions where the legal profession is not divided between barristers and solicitors.It is generally used in the context of Commonwealth countries which have provided by statute for there to be a single profession of "Barrister and Solicitor".In practice,...
) and also rejected the suggestion to allow solicitors rights of audience
Rights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not ; there is no such...
in the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
. The report concluded that the practice of law was a profession, and that a profession had to be independent of government, because without independence the interests of a client cannot be a primary consideration. As such, since the legal profession regulated itself through organisations such as the Law Society
Law Society of England and Wales
The Law Society is the professional association that represents the solicitors' profession in England and Wales. It provides services and support to practising and training solicitors as well as serving as a sounding board for law reform. Members of the Society are often consulted when important...
and Bar Council, it was best if it stayed independent of government interference. The Commission did recommend an examination of the court and legal procedures to see if time and money could be saved for the parties involved.
The government response to the Benson Committee's report was published in 1983, and established a Civil Justice Review to examine court procedure. The report of the review board was put before the House of Commons on 7 June 1988,
Glanville Davies affair
Despite this brief respite, a series of events in the 1980s helped spur a period of dramatic change in the legal profession that culminated in the Courts and Legal Services Act. The Glanville Davies affairGlanville Davies affair
The Glanville Davies affair was a scandal in the English legal profession which resulted in greater reform of the regulatory processes for solicitors and was one of the justifications for the Courts and Legal Services Act 1990...
in 1982 highlighted severe problems in the way solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s regulated themselves. Leslie Parsons filed a complaint against his solicitor, Glanville Davies, a respected solicitor and member of the Council of the Law Society of England and Wales
Law Society of England and Wales
The Law Society is the professional association that represents the solicitors' profession in England and Wales. It provides services and support to practising and training solicitors as well as serving as a sounding board for law reform. Members of the Society are often consulted when important...
, the solicitors' professional body. Davies had charged Parsons £197,000 for legal services, a "grossly inflated and inaccurate legal bill" which was reduced to £67,000 without Davies complaining. Despite this the Law Society took no disciplinary action, allowing Davies to resign from the Council on grounds of ill-health with his reputation intact.
An investigation by the Lay Observer and the Law Society itself (which became known as the Ely Report) highlighted "an appalling catalogue of errors, insensitivity and poor judgment" in the handling of the Davies Affair by the Law Society internal disciplinary organisation, with "administrative failures, wrong decisions, mistakes, errors of judgement, failures in communication and insenstivity... the whole affair was a disgrace to the Society". The Society paid compensation to Parsons for their mishandling of the situation, and said that they would compensate victims of similar cases where they had failed to investigate complaints with reasonable care.
As a result of this and similar controversies, Alf Dubs
Alf Dubs
Alfred Dubs, Baron Dubs is a Czech-born British Labour Party politician and former Member of Parliament.- Youth and education :...
introduced a private member's bill
Private Member's Bill
A member of parliament’s legislative motion, called a private member's bill or a member's bill in some parliaments, is a proposed law introduced by a member of a legislature. In most countries with a parliamentary system, most bills are proposed by the government, not by individual members of the...
to move the responsibility of regulating the solicitors profession to a body outside the Law Society. After pressure from the Law Society and several of the larger regional societies, the reforms were toned down, and the final proposal (which was implemented on 31 August 1986) kept the responsibility of regulating the solicitors' profession within the Law Society but increased the separation of functions within the Society and required that the majority of the people on regulatory committees be lay people
Layman
A layperson or layman is a person who is not an expert in a given field of knowledge. The term originally meant a member of the laity, i.e. a non-clergymen, but over the centuries shifted in definition....
(not solicitors).
Loss of conveyancing monopoly
The next major reform was the loss of the conveyancingConveyancing
In law, conveyancing is the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien....
monopoly. Before 1983, only solicitors had been authorised to take part in conveyancing
Conveyancing
In law, conveyancing is the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien....
work—for anyone else to draft documents relating to the transfer of property was a statutory offence. In December 1983 Austin Mitchell
Austin Mitchell
Austin Vernon Mitchell is a British Labour Party politician who has been the Member of Parliament for Great Grimsby since a 1977 by-election.-Education and early life:...
, a Labour
Labour Party (UK)
The Labour Party is a centre-left democratic socialist party in the United Kingdom. It surpassed the Liberal Party in general elections during the early 1920s, forming minority governments under Ramsay MacDonald in 1924 and 1929-1931. The party was in a wartime coalition from 1940 to 1945, after...
Member of Parliament who had been one of the initial supporters of Alf Dubs
Alf Dubs
Alfred Dubs, Baron Dubs is a Czech-born British Labour Party politician and former Member of Parliament.- Youth and education :...
' private member's bill introduced a private member's bill of his own called the House Buyers Bill. This aimed to remove the restrictions on conveyancing, and although the government opposed it they made it clear that they planned to allow banks and building societies to carry out conveyancing for their customers, and would also be prepared to allow non-solicitors with suitable qualifications to carry out conveyancing work as well.
After negotiations with the government, Mitchell withdrew his bill in exchange for a guarantee that the government would allow non-solicitors to undertake conveyancing work once a Committee had set out proposals for protecting consumers who used these new conveyancers against losses. The Committee, known as the Farrand Committee (after its chairman, Julian Farrand), finished its report in September 1984. The government almost immediately changed the rules to allow for licensed conveyancer
Licensed Conveyancer
A Licensed Conveyancer is a specialist legal professional in the United Kingdom, New Zealand, Australia or South Africa who has been trained to deal with all aspects of property law.Typically, their tasks might include:...
s, introducing the changes with a section in the Administration of Justice Act 1985. Despite worries that this would bankrupt solicitors who specialised in conveyancing work, very few licensed conveyancers began practising due to the difficulties in qualifying, and although the field has become more competitive there has been no substantial loss of revenue like that feared.
Solicitors were more scared by the proposal that banks would be allowed to offer conveyancing services, but this suggestion eventually came to nothing. The government introduced a consultation paper on the subject in April 1984, but in December 1985 announced that it "was not satisfied that lending institutions could safely be permitted to offer both conveyancing and a loan in the same transaction. It is therefore proposed to prohibit the institutions from providing conveyancing, either directly or through a subsidiary company in which they hold a majority stake, to those who are also borrowing from them". This essentially killed the proposal (a framework which would allow banks to undertake conveyancing work was included in the Building Societies Act 1986
Building Societies Act 1986
The Building Societies Act 1986 is an Act of Parliament of the United Kingdom governing building societies...
but never implemented) because the banks had no interest in lending only to people who were not also engaged in a loan agreement with them. It was well known at the time that many members of the cabinet were happy with the initial proposal, but that Lord Hailsham
Quintin Hogg, Baron Hailsham of St Marylebone
For the businessman and philanthropist, see Quintin Hogg Quintin McGarel Hogg, Baron Hailsham of St Marylebone, KG, CH, PC, QC, FRS , formerly 2nd Viscount Hailsham , was a British politician who was known for the longevity of his career, the vigour with which he campaigned for the Conservative...
was determined not to let it pass and forced the government to go against its earlier suggestion.
Marre Committee
Following the loss of their conveyancing monopoly, solicitorSolicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s turned to the barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
's monopoly on rights of audience
Rights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not ; there is no such...
and attempted to have it removed. In March 1984 the Council of the Law Society of England and Wales
Law Society of England and Wales
The Law Society is the professional association that represents the solicitors' profession in England and Wales. It provides services and support to practising and training solicitors as well as serving as a sounding board for law reform. Members of the Society are often consulted when important...
attempted to press for full rights of audience for solicitors, something the Bar
Bar association
A bar association is a professional body of lawyers. Some bar associations are responsible for the regulation of the legal profession in their jurisdiction; others are professional organizations dedicated to serving their members; in many cases, they are both...
was heavily opposed to. The dispute came to the attention of the public when Cyril Smith
Cyril Smith
Sir Cyril Smith, MBE, was a British politician who served as Liberal and Liberal Democrat Member of Parliament for the constituency of Rochdale from 1972 until his retirement in 1992.-Early life:...
's solicitor asked to read out a statement settling a libel action in the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
—he was refused, both at the High Court and the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
, although a practice statement issued by the Court of Appeal in 1986 indicated that they felt solicitors should be allowed to appear in front of the High Court and Court of appeal in formal proceedings.
A public debate followed, with the result being that a joint committee between the Law Society and the Bar was formed to discuss the future of the legal profession. Known as the Marre Committee after its chairwoman, Mary Marre, The Committee was established in April 1986 and made its report in July 1988. The Committee had not been a successful one—the result was split, with the solicitor members and six of the seven independent members recommending the extension of solicitors' rights of audience to the Crown Court
Crown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
, with the Bar representatives and one independent member disagreeing and attaching a Note of Dissent to the final report that undermined its conclusions.
Formation of the Act
When the ConservativeConservative Party (UK)
The Conservative Party, formally the Conservative and Unionist Party, is a centre-right political party in the United Kingdom that adheres to the philosophies of conservatism and British unionism. It is the largest political party in the UK, and is currently the largest single party in the House...
government was re-elected in 1987 it announced that it would produce a set of Green Paper
Green paper
In the Commonwealth, the Republic of Ireland and the United States a green paper is a tentative government report of a proposal without any commitment to action; the first step in changing the law...
s on the work and organisation of the legal profession. These papers formed the basis of a large part of the Courts and Legal Services Act 1990.
Green Papers
The three Green PaperGreen paper
In the Commonwealth, the Republic of Ireland and the United States a green paper is a tentative government report of a proposal without any commitment to action; the first step in changing the law...
s were published by Lord Mackay in January 1989, and were titled The Work and Organisation of the Legal Profession, Conveyancing by Authorised Practitioners and Contingency Fees. The Work and Organisation of the Legal Profession was the main paper, and stated that the overall government objective was to ensure that:
The Green Papers had several main features, the first of which was describing the new role of the Lord Chancellor's Advisory Committee on Legal Education, which was to be expanded to cover matters of professional conduct as well, and be renamed the Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC). The Committee would have fifteen members, all appointed by the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
, and would be tasked with commenting on lawyers' education, training and codes of conduct. The Advisory Committee would also advise the Lord Chancellor on which bodies should be allowed to grant rights of audience
Rights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not ; there is no such...
to their members.
The second main feature was for rights of audience
Rights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not ; there is no such...
. Mackay proposed that all lawyers, whether barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s or solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s, should require a certificate of competence to work in the higher courts, while their initial professional qualifications would allow them to practice in the lower courts. This proposal allowed solicitors to gain full rights of audience up to the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
with the appropriate certification, and was widely disliked by barristers and judges. The idea that barristers would not automatically have rights of audience also irritated them, and the idea that the Lord Chancellor would be responsible for defining which bodies could grant these certificates undermined the principle that the legal profession should be independent from the Government.
In terms of conveyancing
Conveyancing
In law, conveyancing is the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien....
, the Green Paper proposed that the framework in the Building Societies Act would be repealed, and replaced by a system of authorised practitioners, where any person, partnership or corporate body could provide conveyancing services if they met certain standards. The authorised practitioners would have a professional code of conduct, and would be supervised by a certain number of licensed conveyancer
Licensed Conveyancer
A Licensed Conveyancer is a specialist legal professional in the United Kingdom, New Zealand, Australia or South Africa who has been trained to deal with all aspects of property law.Typically, their tasks might include:...
s and solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s. The draft code of conduct had several flaws, however—it allowed practitioners to act for both parties in a transaction, causing issues with conflicts of interest, and failed to take into account the problems caused by banks and estate agents, who had interests in the housing market, being allowed to act as conveyancers.
Several different parties responded to the Green Paper
Green paper
In the Commonwealth, the Republic of Ireland and the United States a green paper is a tentative government report of a proposal without any commitment to action; the first step in changing the law...
s; the judiciary published The Green Papers: The Judges' Response, the Bar
Bar association
A bar association is a professional body of lawyers. Some bar associations are responsible for the regulation of the legal profession in their jurisdiction; others are professional organizations dedicated to serving their members; in many cases, they are both...
published Quality of Justice: The Bar's Response and the Law Society
Law Society of England and Wales
The Law Society is the professional association that represents the solicitors' profession in England and Wales. It provides services and support to practising and training solicitors as well as serving as a sounding board for law reform. Members of the Society are often consulted when important...
published Striking the Balance: The Final Response of the Council of the Law Society on the Green Papers. The response to the Green Papers was overwhelmingly negative, both in these published opinions and generally—the consultation period was extended for a month due to disagreements with the judiciary, and an all-day debate in the House of Lords on 7 April 1989 produced an "overwhelmingly hostile response".
White Paper
As a result of the House of Lords debate and the other criticism the Green Papers faced, the Lord ChancellorLord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
published a White Paper
White paper
A white paper is an authoritative report or guide that helps solve a problem. White papers are used to educate readers and help people make decisions, and are often requested and used in politics, policy, business, and technical fields. In commercial use, the term has also come to refer to...
between the Green Papers and the introduction of a bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
to Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
. The paper (Legal Services: A Framework for the Future) was published in July 1989, and had a different tone to that of the Green Papers, referring more to the requirement of legal services to be responsive to the needs of the client rather than the discipline of the market and problems with competition between branches of the legal profession. The white paper was divided into four sections:
- Investigating the conduct of litigation, conveyancingConveyancingIn law, conveyancing is the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien....
and probateProbateProbate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A probate court decides the validity of a testator's will...
and the possibility of wider choice in legal services. - Maintaining the quality of services provided by the legal profession
- New ways of working, such as multi-national and multi-disciplinary partnerships
- Judicial appointments.
The White Paper allowed for extended rights of audience
Rights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not ; there is no such...
for both solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s and any newly-created legal disciplines, and also allowed that for certain types of cases, particularly in the County Court
County Court
A county court is a court based in or with a jurisdiction covering one or more counties, which are administrative divisions within a country, not to be confused with the medieval system of county courts held by the High Sheriff of each county.-England and Wales:County Court matters can be lodged...
, there would be no limits on who could work as an advocate. All barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s would be allowed full rights of audience as soon as they completed pupillage
Pupillage
A pupillage, in England and Wales, Northern Ireland and Ireland, is the barrister's equivalent of the training contract that a solicitor undertakes...
, as long as they comply with the code of conduct set out by the Bar
Bar association
A bar association is a professional body of lawyers. Some bar associations are responsible for the regulation of the legal profession in their jurisdiction; others are professional organizations dedicated to serving their members; in many cases, they are both...
.
The Law Society
Law Society of England and Wales
The Law Society is the professional association that represents the solicitors' profession in England and Wales. It provides services and support to practising and training solicitors as well as serving as a sounding board for law reform. Members of the Society are often consulted when important...
would be recognised under the Act as having the authority to declare a solicitor qualified to practice in a particular court, and solicitors would be recognised as soon as they finished their training contract
Training contract
A training contract is a compulsory period of practical training in a law firm for law graduates before they can qualify as a solicitor in the United Kingdom, the Republic of Ireland, Australia or Hong Kong...
as having rights of audience in the lower courts. The monopoly on starting and conducting litigation would also be removed, allowing any recognised legal authority to certify its members as fit to work as an advocate.
Passage through Parliament
The first draft of the bill was printed on 6 December 1989, and consisted of 87 sections and 13 schedules spread over 115 pages. By the time the bill passed this had been extended to 125 sections and 20 schedules spread over 201 pages, mostly due to the discovery of how complex the required reforms would really be. The billBill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
was introduced to the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
on 6 December 1989 by Michael Bowes-Lyon
Michael Bowes-Lyon, 18th Earl of Strathmore and Kinghorne
Michael Fergus Bowes-Lyon, 18th Earl of Strathmore and Kinghorne, DL , is a former politician in the House of Lords and former British Army officer.-Family and Background:...
.
Several proposed clauses were debated in great detail, but failed to be included in the final act. Lord Mishcon
Victor Mishcon, Baron Mishcon
Victor Mishcon, Baron Mishcon, QC, DL was a leading British solicitor and a Labour politician. His firm acted for Diana, Princess of Wales in her divorce...
suggested that the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
should be required to "ensure that reasonable standards are set" for the courts service, the aim being to avoid delays and unnecessary expense. Lord Rawlinson
Peter Rawlinson, Baron Rawlinson of Ewell
Peter Anthony Grayson Rawlinson, Baron Rawlinson of Ewell, PC, QC was an English barrister, politician and author. He was Conservative Member of Parliament for Epsom for 23 years, from 1955 to 1978, and held the offices of Solicitor General and Attorney General for England and Wales and for...
made two proposals—firstly, to abolish the judicial functions of the Lord Chancellor (something that was later included in the Constitutional Reform Act 2005
Constitutional Reform Act 2005
The Constitutional Reform Act 2005 is an Act of the Parliament of the United Kingdom. It provided for a Supreme Court of the United Kingdom to take over the existing role of the Law Lords as well as some powers of the Judicial Committee of the Privy Council, and removed the functions of Speaker of...
), and secondly to establish a Judicial Appointments Commission to examine judicial appointments for government interference. Austin Mitchell
Austin Mitchell
Austin Vernon Mitchell is a British Labour Party politician who has been the Member of Parliament for Great Grimsby since a 1977 by-election.-Education and early life:...
proposed the abolition of QC
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
s and the establishment of a legal services commission.
After the bill's introduction to Parliament on 6 December 1989 it was debated by the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
until 18 April 1990. On 8 May 1990 it moved to the House of Commons, where it stayed until 26 October, when it was passed. The bill received the Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
on 1 November 1990.
Provisions of the Act
The final version of the act was divided into six sections:- Part I: procedure in civil courts
- Part II: legal services
- Part III: judicial and other offices and judicial pensions
- Part IV: solicitors
- Part V: arbitration
- Part VI: miscellaneous and supplemental.
Part I: procedure in civil courts
Part I of the Act made several changes to the procedure used in civil courts, namely the High CourtHigh Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
and County Court
County Court
A county court is a court based in or with a jurisdiction covering one or more counties, which are administrative divisions within a country, not to be confused with the medieval system of county courts held by the High Sheriff of each county.-England and Wales:County Court matters can be lodged...
s.
Allocation of business and case procedures
English contract law
English contract law is a body of law regulating contracts in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries across the Commonwealth , and the United States...
or tort
English tort law
English tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law of England and Wales. Some wrongs are the concern of the state, and so the police can enforce the law on the wrongdoers in court – in a criminal case...
case valued at less than £5,000 would go to the County Courts, while any case valued at more than that would go straight to the High Court. Section 1 of the Act allows the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
to change the financial boundaries after consultation with senior judges such as the Lord Chief Justice and the Master of the Rolls
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
, and also allows the Lord Chancellor to create categories based on things other than the financial value of the case, such as the complexity involved or the importance of any legal question likely to be raised. An exception to this rule is that the Lord Chancellor cannot ask a County Court to hear any case of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
.
The result of this section of the Act is that any case worth less than £25,000 is dealt with in the County Courts, any case worth between £25,000 and £50,000 is dealt with in either the County Court or the High Court depending on the complexity and any case worth more than £50,000 is dealt with in the High Court. Claims worth under £3,000 are automatically dealt with by the small claims track
Small claims court
Small-claims courts have limited jurisdiction to hear civil cases between private litigants. Courts authorized to try small claims may also have other judicial functions, and the name by which such a court is known varies by jurisdiction; it may be known as a county or magistrate's court...
of the County Court. This has drastically speeded up proceedings in the High Court by making sure that only "important" and valuable cases are dealt with by them.
The County Courts Act 1984
County Courts Act 1984
The County Courts Act 1984 is an Act of the Parliament of the United Kingdom; the long title of the Act is "An Act to consolidate certain enactments relating to county courts". The Act replaced the County Courts Act 1959....
permitted the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
to transfer any part of a High Court case to the County Court
County Court
A county court is a court based in or with a jurisdiction covering one or more counties, which are administrative divisions within a country, not to be confused with the medieval system of county courts held by the High Sheriff of each county.-England and Wales:County Court matters can be lodged...
s in one of three situations; firstly if the parties consent, secondly where the High Court believes the amount in dispute is below the maximum amount the County Court is allowed to deal with and thirdly where the High Court believes that the case is not likely to raise any important question of law. Before the passing of the Courts and Legal Services Act, around 13,000 cases were transferred to the County Courts each year in this way. The Act changed the system so that the High Court has a discretionary power to transfer any proceedings to the County Courts.
Section 3 of the Courts and Legal Services Act amends the County Courts Act 1984
County Courts Act 1984
The County Courts Act 1984 is an Act of the Parliament of the United Kingdom; the long title of the Act is "An Act to consolidate certain enactments relating to county courts". The Act replaced the County Courts Act 1959....
to allow the County Court
County Court
A county court is a court based in or with a jurisdiction covering one or more counties, which are administrative divisions within a country, not to be confused with the medieval system of county courts held by the High Sheriff of each county.-England and Wales:County Court matters can be lodged...
s to award any remedy
Legal remedy
A legal remedy is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order to impose its will....
used by the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
. There were several exceptions because the status of the County Courts made it illogical to allow them to write orders of mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
or certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
. The new section also allows the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
to prohibit the County Courts from making certain other types of order, with these types to be introduced by Statutory Instrument
Statutory Instrument
A Statutory Instrument is the principal form in which delegated or secondary legislation is made in Great Britain.Statutory Instruments are governed by the Statutory Instruments Act 1946. They replaced Statutory Rules and Orders, made under the Rules Publication Act 1893, in 1948.Most delegated...
. Again, these are orders which it would be illogical to allow the County Courts to write, such as Anton Piller order
Anton Piller order
In English and English-derived legal systems, an Anton Piller order is a court order that provides the right to search premises and seize evidence without prior warning...
s or Mareva injunction
Mareva injunction
The Mareva injunction , in Commonwealth jurisdictions, is a court order which freezes assets so that a defendant to an action cannot dissipate their assets from beyond the jurisdiction of a court so as to frustrate a judgment...
s.
The Act also removes certain absolute rights of appeal (allowing parties to appeal regardless of the opinion of the High Court judge) from the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
to the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
. This was hotly debated, but the Master of the Rolls
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
pointed out in Parliament that there is a significantly higher success rate in cases where the parties require the judge's permission to appeal than cases where the parties have absolute rights of appeal, implying that the restriction of absolute rights of appeal should cut pointless cases out of the court system and speed up the process.
Evidence
The Act also changed the court rules on the submission of evidence. The Civil Justice Review found that many cases which could easily have been settled before the hearings in court were not, primarily because there was no way of assessing the strength of the other side's arguments and their evidence. The Civil Justice Review suggested that forcing parties to provide evidence and witness statements to the other side before the case came to court would make this assessment easier, and would lead to the parties settling their case before it came to court if one side was at an obvious disadvantage. This suggestion was accepted, and included in the Act, which says that each party must produce written statements of any oral evidence they intend to present in court, and that these statements should be given to the other party before the case comes to court. Any party who fails to comply with this may be refused leave to present this oral evidence in court. A similar system had been used in the Chancery Division, Admiralty CourtAdmiralty court
Admiralty courts, also known as maritime courts, are courts exercising jurisdiction over all maritime contracts, torts, injuries and offences.- Admiralty Courts in England and Wales :...
and Commercial Court since 1986.
Representation
Prior to the passing of the Courts and Legal Services Act, only barristerBarrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s, solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s and the parties to a case had automatic rights of audience
Rights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not ; there is no such...
in the County Court
County Court
A county court is a court based in or with a jurisdiction covering one or more counties, which are administrative divisions within a country, not to be confused with the medieval system of county courts held by the High Sheriff of each county.-England and Wales:County Court matters can be lodged...
s (as established by the County Courts Act 1984
County Courts Act 1984
The County Courts Act 1984 is an Act of the Parliament of the United Kingdom; the long title of the Act is "An Act to consolidate certain enactments relating to county courts". The Act replaced the County Courts Act 1959....
). Other parties, if they were in "relevant legal employment", could also request rights of audience for a particular case. The Civil Justice Review found significant variations between courts as to who would be granted rights of audience, however, and Part I of the Courts and Legal Services Act attempted to address this. Section 11 allows the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
to make an order giving rights of audience to anyone in County Court cases of a certain type.
Costs
Section 4 of the Act amended the Supreme Court Act 1981 to extend the rules on costs that govern the Supreme Court of England and Wales to the County CourtCounty Court
A county court is a court based in or with a jurisdiction covering one or more counties, which are administrative divisions within a country, not to be confused with the medieval system of county courts held by the High Sheriff of each county.-England and Wales:County Court matters can be lodged...
s as well. At the same time it introduced "wasted costs", which are costs to a party as a result of "an improper, unreasonable or negligent act or omission" from the other party. The Act also applies special rules to High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
cases that the judge believes should have been brought in the County Court—the judge can reduce any costs by up to 25 percent to take into account the unneeded expense for both parties.
The Act also introduces direct fines for parties that do not turn up to a hearing in a High Court or Crown Court case. If a party fails to attend an agreed meeting, with no warning beforehand, they can be summoned before the judge and asked to explain their behaviour. If the explanation is not satisfactory they can be fined up to £400. This section was not entirely popular with the Members of Parliament, with Lord Grantchester calling it "a sledgehammer to crack a nut".
Part II: legal services
Part II of the act is considered the most important, and sets out a new regulatory framework for the legal profession. This section is the subject of the "statutory objective", which reads "The general objective of this Part is the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancingConveyancing
In law, conveyancing is the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien....
and probate
Probate
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A probate court decides the validity of a testator's will...
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." This "statutory objective" was a completely new way of introducing legislation, and is intended as an aid to those who have to apply it.
Rights of audience
The most important element of this Part was the extension of rights of audienceRights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not ; there is no such...
in the higher courts to solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s and other legal professionals. Sections 27 and 28 of Part II give an advocate rights of audience
Rights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not ; there is no such...
and the right to conduct litigation if the advocate is qualified to do so, is a member of a professional body recognised by the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
and that body considers him qualified to conduct litigation. A person also has rights of audience if they have been directly granted it, for example by the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
in County Court
County Court
A county court is a court based in or with a jurisdiction covering one or more counties, which are administrative divisions within a country, not to be confused with the medieval system of county courts held by the High Sheriff of each county.-England and Wales:County Court matters can be lodged...
proceedings. The most immediate effect of this is that solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s can now gain rights of audience in the Crown Court
Crown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
, High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
, Court of Appeal, Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
, Privy Council
Privy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...
, and House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
if they qualify as Solicitor Advocate
Solicitor Advocate
Solicitor advocate is the title used by a solicitor who is qualified to represent clients as an advocate in the higher courts in England and Wales or in Scotland.-Origin:...
s. Solicitor's clerks also have rights of audience in the chambers
Chambers (law)
A judge's chambers, often just called his or her chambers, is the office of a judge.Chambers may also refer to the type of courtroom where motions related to matter of procedure are heard.- United Kingdom and Commonwealth :...
of judges in the Crown Court and High Court, assuming they are being instructed by a qualified solicitor.
A large amount of parliamentary time was spent debating the application of the cab-rank rule to new legal professionals granted rights of audience – the Bar argued that all people with rights of audience in the higher courts should be subject to the same rules as barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s, while the Law Society
Law Society of England and Wales
The Law Society is the professional association that represents the solicitors' profession in England and Wales. It provides services and support to practising and training solicitors as well as serving as a sounding board for law reform. Members of the Society are often consulted when important...
argued that solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s were not at that time bound by the cab-rank rule in their dealings in the lower courts, and that there was no reason why this should not be extended to the higher courts.
Michael Zander
Michael Zander
Michael Zander, QC, FBA, is a distinguished British legal scholar and expert on the English legal system, the legal profession, civil justice and criminal justice in particular. He is Professor Emeritus of Law at the London School of Economics and Political Science, and the author of several books...
argued that the demands for the extension of the cab rank rule to solicitors were overstated—before the passing of the Act clients had always been able to find solicitors, and there was no reason why this should suddenly change when the act came into force. The Bar won this particular argument, however, and as a result any body who can certificate advocates as qualified to hold rights of audience
Rights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not ; there is no such...
in the higher courts must have a code of conduct governing advocates who refuse cases.
Advisory Committee
Section 19 of Part II established the Lord Chancellor's Advisory Committee on Legal Education and ConductLord Chancellor's Advisory Committee on Legal Education and Conduct
The Lord Chancellor's Advisory Committee on Legal Education and Conduct was an advisory board established by the Courts and Legal Services Act 1990 and tasked with assisting in "the maintenance and development of standards in the education, training and conduct of those offering legal services"...
, which consists of a chairman (who must be a Lord of Appeal in Ordinary
Lord of Appeal in Ordinary
Lords of Appeal in Ordinary, commonly known as Law Lords, were appointed under the Appellate Jurisdiction Act 1876 to the House of Lords of the United Kingdom in order to exercise its judicial functions, which included acting as the highest court of appeal for most domestic matters...
, Lord Justice of Appeal
Lord Justice of Appeal
A Lord Justice of Appeal is an ordinary judge of the Court of Appeal of England and Wales, the court that hears appeals from the High Court of Justice, and represents the second highest level of judge in the courts of England and Wales-Appointment:...
or a High Court judge
High Court judge
A High Court judge is a judge of the High Court of Justice, and represents the third highest level of judge in the courts of England and Wales. High Court judges are referred to as puisne judges...
) and sixteen other members, all appointed by the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
. The first chairman appointed was Lord Griffiths
Hugh Griffiths, Baron Griffiths
William Hugh Griffiths, Baron Griffiths, known as Hugh Griffiths, PC, QC, MC is a British judge and barrister....
, a Lord of Appeal in Ordinary. The sixteen other members are divided so that:
- One is a Circuit Judge or former Circuit Judge
- Two are practising barristerBarristerA barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s - Two are practising solicitorSolicitorSolicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s - Two are law teachers or lecturers
- Nine are "lay members", which is defined as any person other than a judge, practising barrister, practising solicitor or law teacher.
This section of the Act amended the House of Commons Disqualification Act 1975
House of Commons Disqualification Act 1975
The House of Commons Disqualification Act 1975 is an Act of the Parliament of the United Kingdom that prohibits certain categories of people from becoming members of the House of Commons...
to indicate that no Member of Parliament can be a member of the Advisory Committee. Committee members are to serve for five years, and provisions are made for them to be paid and for them to maintain a staff, all of which are to be paid from the Lord Chancellor's budget. The Committee is required to produce an annual report, which the Lord Chancellor must present to both the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
and the House of Commons.
The Committee is tasked with maintaining and developing standards in "the education, training and conduct of those offering legal services", and with reviewing existing training schemes and any proposals for new training schemes.
Conveyancing
Section 36 removes limits on who can act as a conveyancerConveyancer
In Commonwealth countries, a conveyancer is a specialist lawyer who specialises in the legal aspects of buying and selling real property, or conveyancing. A conveyancer can also be a solicitor, licensed conveyancer, or a fellow of the Institute of Legal Executives.In the United Kingdom,...
, and allows any individual, corporation or employee of a corporation to act as a conveyancer if they or the corporation is suitably qualified. Qualified people are defined as solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s, barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s, licensed conveyancer
Licensed Conveyancer
A Licensed Conveyancer is a specialist legal professional in the United Kingdom, New Zealand, Australia or South Africa who has been trained to deal with all aspects of property law.Typically, their tasks might include:...
s and notaries
Notary public
A notary public in the common law world is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business...
, as well as any companies and incorporated bodies found in Section 9 of the Administration of Justice Act 1985. These people can apply to become authorised conveyancers by applying to the Authorised Conveyancing Practitioners Board
Authorised Conveyancing Practitioners Board
The Authorised Conveyancing Practitioners Board is the regulatory organisation and professional association for authorised conveyancers in the United Kingdom...
, the regulatory body for conveyancing. Section 36 alsp repeals the section of the Building Societies Act 1986
Building Societies Act 1986
The Building Societies Act 1986 is an Act of Parliament of the United Kingdom governing building societies...
that covered banks acting as conveyancers, since they are covered as "companies and incorporated bodies".
Authorised Conveyancing Practitioners Board
Section 34 establishes the Authorised Conveyancing Practitioners BoardAuthorised Conveyancing Practitioners Board
The Authorised Conveyancing Practitioners Board is the regulatory organisation and professional association for authorised conveyancers in the United Kingdom...
as a statutory corporation
Statutory Corporation
A statutory corporation or public body is a corporation created by statute. While artificial legal personality is almost always the result of statutory intervention, a statutory corporation does not include corporations owned by shareholders whose legal personality derives from being registered...
. The Practitioners Board is tasked with developing competition in conveyancing
Conveyancing
In law, conveyancing is the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien....
services to avoid monopolies, supervising the actions of licensed conveyancer
Licensed Conveyancer
A Licensed Conveyancer is a specialist legal professional in the United Kingdom, New Zealand, Australia or South Africa who has been trained to deal with all aspects of property law.Typically, their tasks might include:...
s and developing a way of monitoring said conveyancers. The Practitioners Board has the powers to both grant and refuse authorisation to conveyancing practitioners, establish a conveyancing ombudsman
Ombudsman
An ombudsman is a person who acts as a trusted intermediary between an organization and some internal or external constituency while representing not only but mostly the broad scope of constituent interests...
and a compensation scheme for parties that suffer as a result of a conveyancer's actions appoint investigators to look into the behaviour of an authorised conveyancer. There are therefore three regulatory bodies under this Section—the Practitioners Board, the Law Society
Law Society of England and Wales
The Law Society is the professional association that represents the solicitors' profession in England and Wales. It provides services and support to practising and training solicitors as well as serving as a sounding board for law reform. Members of the Society are often consulted when important...
for regulating solicitors engaged in conveyancing work and the Council for Licensed Conveyancers charged with regulating licensed conveyancers.
The Practitioners Board is the body which authorises a person or body as fit to undertake conveyancing work. The Practitioners board assumes that banks, insurance companies and building societies are by definition fit to undertake such work, while other individuals and bodies undergo a more detailed vetting process.
The Practitioners Board consists of a chairman and between four and eight other members appointed by the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
, who has to take into account "[the need] to provide a proper balance between the interests of authorised practitioners and those who make use of their services" when appointing members. As with the Lord Chancellor's Advisory Committee on Legal Education and Conduct
Lord Chancellor's Advisory Committee on Legal Education and Conduct
The Lord Chancellor's Advisory Committee on Legal Education and Conduct was an advisory board established by the Courts and Legal Services Act 1990 and tasked with assisting in "the maintenance and development of standards in the education, training and conduct of those offering legal services"...
, no Member of Parliament may be a member of the Board. Members hold their position for three years, and as with the Advisory Committee they are provided with money for a staff and running costs. They are expected to submit a report once a year to the Lord Chancellor.
Sections 41 and 42 establish Conveyancing Appeals Tribunals which hear complaints against decisions made by the Authorised Conveyancing Practitioners Board
Authorised Conveyancing Practitioners Board
The Authorised Conveyancing Practitioners Board is the regulatory organisation and professional association for authorised conveyancers in the United Kingdom...
. Decisions of the Board which are appealed do not take effect until the appeal process is complete. The tribunals are made up of three members—two lay persons (classified as people who are not practising legal professionals) and one legal professional. Any appeals to tribunal decisions go to the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
.
Functions of the Director General of Fair Trading
The Act also modifies the functions of the Director General of Fair Trading by requiring any applications from a body to be allowed to certify advocates and any rules and regulations proposed by the Lord ChancellorLord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
in relation to conveyancing
Conveyancing
In law, conveyancing is the transfer of legal title of property from one person to another, or the granting of an encumbrance such as a mortgage or a lien....
to be submitted to the Director, who then advises the Lord Chancellor as to the viability of the documents. The Director General can order organisations and individuals to produce any documents relating to these applications or proposed rules, and applies Section 85 of the Fair Trading Act 1973 to his duties. This Act makes "wilfully altering, suppressing or destroying any document which you are required to produce" a criminal offence.
Probate services
Another aim of the Act was to widen the pool of people qualified to carry out probateProbate
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A probate court decides the validity of a testator's will...
work. Two options were given in the Green Paper
Green paper
In the Commonwealth, the Republic of Ireland and the United States a green paper is a tentative government report of a proposal without any commitment to action; the first step in changing the law...
The Work and Organisation of the Legal Profession—firstly to allow more legal professionals to engage in probate work, such as Licensed Conveyancer
Licensed Conveyancer
A Licensed Conveyancer is a specialist legal professional in the United Kingdom, New Zealand, Australia or South Africa who has been trained to deal with all aspects of property law.Typically, their tasks might include:...
s, authorised conveyancers and chartered accountant
Chartered Accountant
Chartered Accountants were the first accountants to form a professional body, initially established in Britain in 1854. The Edinburgh Society of Accountants , the Glasgow Institute of Accountants and Actuaries and the Aberdeen Society of Accountants were each granted a royal charter almost from...
s. The second suggestion was to completely deregulate probate work, which would have allowed anyone to engage in probate work. This was problematic because of the possibility of fraud and error, but the general conclusion of the report was that there was some deregulation needed, along with a single code of conduct governing all probate work.
Section 54 of the act amends the Solicitors Act 1974
Solicitors Act 1974
The Solicitors Act 1974 is the Act of parliament in the United Kingdom governing the regulation and responsibilities of practicing solicitors, and the firms for whom they work, as well as stipulating under what circumstances one can practise as a solicitor...
and allows the Official Solicitor
Official Solicitor
The Office of the Official Solicitor is a part of the Ministry of Justice of the Government of the United Kingdom. The Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable...
, the public trustee
Public trustee
The public trustee is an office established pursuant to national statute, to act as a trustee, usually where a sum is required to be deposited as security by legislation, where courts remove another trustee, or for estates where either no executor is named by will or the testator elects to name...
, banks, building societies
Building society
A building society is a financial institution owned by its members as a mutual organization. Building societies offer banking and related financial services, especially mortgage lending. These institutions are found in the United Kingdom and several other countries.The term "building society"...
and insurance companies to prepare probate documents, as well as barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s, solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s and notaries
Notary public
A notary public in the common law world is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business...
who were previously allowed to engage in probate work (although by convention, barristers did not). Banks, insurance companies and building societies are only allowed to take part if they sign up to a scheme for handling complaints established by the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
.
Section 55 creates "authorised probate practitioners", which allows professional bodies recognised by the Lord Chancellor to authorise people as capable of drawing up probate documents. The Lord Chancellor is required to refer applications by professional bodies to the Lord Chancellor's Advisory Committee on Legal Education and Conduct
Lord Chancellor's Advisory Committee on Legal Education and Conduct
The Lord Chancellor's Advisory Committee on Legal Education and Conduct was an advisory board established by the Courts and Legal Services Act 1990 and tasked with assisting in "the maintenance and development of standards in the education, training and conduct of those offering legal services"...
(ACLEC), which will then advise the Lord Chancellor on the validity of the application. The Lord Chancellor may refuse any application with a written reason, and the professional body applying may issue a reply within 28 days which the Lord Chancellor is required to consider. If the professional body is recognised, it may grant "authorised probate practitioner" status to any person who:
- Is a member of the professional body
- Is suitably trained
- Is the "fit and proper" person to be running such a business
- Has a professional indemnity scheme
- Has made preparations to protect his clients in the event in which the practitioner stops practising
- Has an adequate complaints procedure.
The Lord Chancellor may revoke his authorisation of a professional body to certify "authorised probate practitioners". In this case, all individuals which this body has certified cease to be valid practitioners. ACLEC may also investigate professional bodies and then advise the Lord Chancellor that it would be best to revoke their authorisation. The Lord Chancellor, if he accepts the advice, then gives written notice to the professional body, which is given three months to reply.
Section 54 also creates a new criminal offence of "providing false or misleading information in connection with an application for probate". If a person applies to become an authorised probate practitioner and makes a statement he knows to be false, or supports a statement he knows to be false, he is committing an offence. A person can also be charged if they make such statements recklessly. The Act amends the Solicitors Act 1974
Solicitors Act 1974
The Solicitors Act 1974 is the Act of parliament in the United Kingdom governing the regulation and responsibilities of practicing solicitors, and the firms for whom they work, as well as stipulating under what circumstances one can practise as a solicitor...
to make it a criminal offence to impersonate a probate practitioner.
Legal Services Ombudsman
Section 21 of the Act creates a Legal Services OmbudsmanLegal Services Ombudsman
In England and Wales, the Legal Services Ombudsman was a statutory officer that investigated allegations about the improper, ineffective or inefficient way that complaints about lawyers are handled by their respective self-regulating professional bodies. The Ombudsman is appointed by, and is...
to replace the Lay Observer. The Ombudsman is tasked with investigating any allegation made to him about the way a complaint to a professional body such as the Law Society
Law Society of England and Wales
The Law Society is the professional association that represents the solicitors' profession in England and Wales. It provides services and support to practising and training solicitors as well as serving as a sounding board for law reform. Members of the Society are often consulted when important...
about one of its members has been handled. This covers "any professional body" which relates to Licensed Conveyancer
Licensed Conveyancer
A Licensed Conveyancer is a specialist legal professional in the United Kingdom, New Zealand, Australia or South Africa who has been trained to deal with all aspects of property law.Typically, their tasks might include:...
s, barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s, solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s, notaries
Notary public
A notary public in the common law world is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business...
or any other body specified by the Lord Chancellor. The Ombudsman may investigate the subject of the complaint itself, but cannot investigate any matter already settled by a court, the Solicitors Disciplinary Tribunal or a Bar Disciplinary Tribunal. The Ombudsman also cannot investigate a complaint when the complaint is being investigated by the professional body, while the decision made by the professional body is being appealed or while the time limit for appeals has not yet expired. An exception to this is if the Ombudsman feels that the professional body has not completed the investigation in a reasonable amount of time, or if they have mishandled the investigation.
The Ombudsman holds his office for three years, and is appointed directly by the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
. The Ombudsman may not be a Member of Parliament or a "person authorised to deliver legal services" such as a barrister, solicitor or notary. The Ombudsman has both wages and a paid staff using money drawn from the Lord Chancellor's budget. The first Ombudsman was Michael Barnes, who took office on 2 January 1991 and served for two terms.
Judicial appointments
The Courts and Legal Services Act 1990 significantly modified the way judges are appointed. Before the passing of the Act the highest judicial office that could be applied for was that of a circuit judge; anything higher was by invitation only. Section 71 of the Act creates a new system of qualification for judicial offices. Among other things this opens up judicial offices in the Supreme Court of England and Wales to solicitorSolicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s rather than just barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s. Judges of the High Court and above were still appointed by invitation only, however, although this changed with the Constitutional Reform Act 2005
Constitutional Reform Act 2005
The Constitutional Reform Act 2005 is an Act of the Parliament of the United Kingdom. It provided for a Supreme Court of the United Kingdom to take over the existing role of the Law Lords as well as some powers of the Judicial Committee of the Privy Council, and removed the functions of Speaker of...
.
Section 75 of the act prevents a person holding a full-time judicial office from working as a barrister, solicitor, licensed conveyancer, public notary or from working with those who are.
Presiding judges and the Master of the Rolls
Section 72 creates Presiding Judges for each circuit to handle the administration of circuit courts. The act provides for one Senior Presiding Judge, who must be a Lord Justice of AppealLord Justice of Appeal
A Lord Justice of Appeal is an ordinary judge of the Court of Appeal of England and Wales, the court that hears appeals from the High Court of Justice, and represents the second highest level of judge in the courts of England and Wales-Appointment:...
, and two Presiding Judges, who must be judges of the High Court
High Court judge
A High Court judge is a judge of the High Court of Justice, and represents the third highest level of judge in the courts of England and Wales. High Court judges are referred to as puisne judges...
. This was simply the codification of existing practices, however, since judges already existed who would deal with the administrative work of circuit courts.
Section 73 allows the Master of the Rolls
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
to delegate certain functions, particularly those related to public records, manorial documents, functions relating to solicitors under the Solicitors Act 1974
Solicitors Act 1974
The Solicitors Act 1974 is the Act of parliament in the United Kingdom governing the regulation and responsibilities of practicing solicitors, and the firms for whom they work, as well as stipulating under what circumstances one can practise as a solicitor...
and functions relating to incorporated practices
Law firm
A law firm is a business entity formed by one or more lawyers to engage in the practice of law. The primary service rendered by a law firm is to advise clients about their legal rights and responsibilities, and to represent clients in civil or criminal cases, business transactions, and other...
under the Administration of Justice Act 1985.
District judges and magistrates
Since the County Courts Act 1974 there had been a shift in the functions of County Court Registrars from an administrative to a judicial role. Section 74 of the act makes County Court Registrars District Judges, recognising them as a formal part of the judiciary. They have the same powers as any other judge in relations to charging individuals for assault on an officer of the court and for refusing to give evidence.Sections 108 and 109 of the act allow Magistrates to enjoy immunity from civil suits in the same way that members of the judiciary do.
Retirement ages and judicial pensions
Section 77 of the act amends the Supreme Court Act 1981 to make the retirement age of the Official SolicitorOfficial Solicitor
The Office of the Official Solicitor is a part of the Ministry of Justice of the Government of the United Kingdom. The Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable...
, the Registrar of Criminal Appeals and the Permanent Secretary to the Lord Chancellor's Department
Permanent Secretary to the Lord Chancellor's Office
The Permanent Secretary to the Lord Chancellor's Department was the most senior civil servant in the Lord Chancellor's Department and a senior member of Her Majesty's Civil Service...
62, although this can be extended by the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
to 65. Previously the retirement age was 72.
Section 79 also introduces several technical rules relating to judicial pensions, with the aim being to bring the pension provisions in line with the Social Security Act 1985 and Social Security Act 1976. Firstly it provides for equality between male and female judges by allowing widowers to benefit from the scheme. It also inserts a new clause into the Judicial Pensions Act 1981 to allow HM Treasury
HM Treasury
HM Treasury, in full Her Majesty's Treasury, informally The Treasury, is the United Kingdom government department responsible for developing and executing the British government's public finance policy and economic policy...
to cut off pension payments for widows or widowers who remarry. Section 82 of the Act allows judges to increase their pension pot by making voluntary contributions, and Section 83 allows a judge who has served for two years and is forced to retire due to ill-health access to a pension (previously a judge had to serve for at least five years).
Part IV: solicitors
Many sections of the Act amend the law relating to solicitorSolicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s already set out in other statutes, such as the Administration of Justice Act 1985.
Law Society of England and Wales
A significant amount of the Act's coverage of solicitors relates to the Law Society of England and WalesLaw Society of England and Wales
The Law Society is the professional association that represents the solicitors' profession in England and Wales. It provides services and support to practising and training solicitors as well as serving as a sounding board for law reform. Members of the Society are often consulted when important...
and its various forms. Part IV of the Act amends the Solicitors Act 1974
Solicitors Act 1974
The Solicitors Act 1974 is the Act of parliament in the United Kingdom governing the regulation and responsibilities of practicing solicitors, and the firms for whom they work, as well as stipulating under what circumstances one can practise as a solicitor...
to enable the Council of the Law Society to delegate certain functions to committees and individuals, who do not necessarily need to be part of the Law Society. Some functions may not be delegated, such as setting rules and regulations related to the professional code of conduct, incorporated practices, the compensation fund and the indemnity requirements for practising solicitors.
The Act also amends the Solicitors Act in relation to paying Law Society membership fees. Under the Solicitors Act, an employed solicitor working for a large practice in the City of London
City of London
The City of London is a small area within Greater London, England. It is the historic core of London around which the modern conurbation grew and has held city status since time immemorial. The City’s boundaries have remained almost unchanged since the Middle Ages, and it is now only a tiny part of...
would not have to pay for new practice certificates (which help fund the Law Society) if his work was not work that only a solicitor could do. This meant that the Law Society was only being funded by some solicitors, who were being treated unfairly compared to their directly employed fellows. The Act inserts a new clause into the Solicitors Act 1974 which expands the definition of what a solicitor requiring a practising certificate is to include any solicitor who works for a firm in a way related to legal services and is employed by:
- A solicitor, or;
- Any partnership containing a solicitor, or;
- An incorporated practiceLaw firmA law firm is a business entity formed by one or more lawyers to engage in the practice of law. The primary service rendered by a law firm is to advise clients about their legal rights and responsibilities, and to represent clients in civil or criminal cases, business transactions, and other...
.
The Act also amends the Solicitors Act to allow the Law Society to restrict practising certificates for solicitors charged with or convicted of conduct involving dishonesty or deception, as well as any crime defined as a "serious arrestable offence" by the Police and Criminal Evidence Act 1984
Police and Criminal Evidence Act 1984
The Police and Criminal Evidence Act 1984 is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, as well as providing codes of practice for the exercise of those powers. Part VI of PACE required the Home Secretary...
. In addition it allows the Law Society to suspend any solicitor convicted of fraud or serious crime (if the Law Society has informed the Solicitors Disciplinary Tribunal) for six months, with a possible extension to twelve months. Since a practice certificate only lasts for twelve months, this effectively stops the solicitor from practising.
Multinational partnerships
Sections 89 and 14 of the Act allow multinational partnerships between foreign lawyers and lawyers qualified in England and Wales. Foreign lawyers are defined as lawyers recognised by a professional body outside England and Wales, and are allowed to enter into partnerships with solicitorSolicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s if they register with the Law Society of England and Wales
Law Society of England and Wales
The Law Society is the professional association that represents the solicitors' profession in England and Wales. It provides services and support to practising and training solicitors as well as serving as a sounding board for law reform. Members of the Society are often consulted when important...
. Section 89 of this Act allows the Law Society to make rules governing the practice of law by foreign lawyers in England and Wales, and also to make additional rules for solicitors engaged in multinational partnerships.
Solicitors Disciplinary Tribunal
Section 94 of the Act modifies the Solicitors Act 1974Solicitors Act 1974
The Solicitors Act 1974 is the Act of parliament in the United Kingdom governing the regulation and responsibilities of practicing solicitors, and the firms for whom they work, as well as stipulating under what circumstances one can practise as a solicitor...
to allow Solicitors Disciplinary Tribunals to strike solicitors from the roll, require a solicitor or former solicitor to answer allegations, terminate a suspension from practice authorised by a Tribunal and restore the name of a struck off solicitor to the roll. The power to force a former solicitor to answer to allegations is considered the most important one, because it prevents solicitors escaping punishment by ceasing to act as a solicitor. Section 95 of the Act allows for appeals to the Law Society
Law Society of England and Wales
The Law Society is the professional association that represents the solicitors' profession in England and Wales. It provides services and support to practising and training solicitors as well as serving as a sounding board for law reform. Members of the Society are often consulted when important...
's refusal to put a solicitor who was previously struck off back on the roll, with this appeal going to the Master of the Rolls
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
.
Barristers
Despite its name, Section IV also contains provisions referring to barristerBarrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s. Before the passing of the act there was no contractual relationship between a barrister and the instructing solicitor, or between a barrister and his client. This made it very difficult to obtain damages or recover money if there was a problem. A barrister was paid only as a matter of honour—there was no contract requiring that he be paid for his services, and no way of gaining his fee if he was not. The way that the legal profession got around this was by making it an act of professional misconduct for a solicitor not to pay the fees of a barrister in a case.
Section 61 of the Act allows barristers to enter into contracts relating to their legal services, although it does not prevent the Bar Council
Bar council
A bar council , in a Commonwealth country and in the Republic of Ireland, the Bar Council of Ireland is a professional body that regulates the profession of barristers together with the King's Inns. Solicitors are generally regulated by the Law society....
from making rules restricting who a barrister can deal with.
Section 64 amends the Sex Discrimination Act 1975
Sex Discrimination Act 1975
The Sex Discrimination Act 1975 is an Act of the Parliament of the United Kingdom which protected men and women from discrimination on the grounds of sex or marriage. The Act concerned employment, training, education, harassment, the provision of goods and services, and the disposal of premises...
and the Race Relations Act 1976
Race Relations Act 1976
The Race Relations Act 1976 was established by the Parliament of the United Kingdom to prevent discrimination on the grounds of race.Items that are covered include discrimination on the grounds of race, colour, nationality, ethnic and national origin in the fields of employment, the provision of...
to make it unlawful for a barrister or barrister's clerk to discriminate against women or against people "on racial grounds" when offering pupillage
Pupillage
A pupillage, in England and Wales, Northern Ireland and Ireland, is the barrister's equivalent of the training contract that a solicitor undertakes...
s or tenancies
Tenancy (law)
A Tenancy in the English legal system is a space for a barrister in a set of chambers....
. This can be in relation to on what terms the pupillage/tenancy is offered, the arrangements made for who should be offered the pupillage/tenancy or the benefits, services and facilities which are "afforded or denied". It also makes discriminating when "giving, withholding or accepting" unlawful.
Notaries
Section IV also contains provisions relating to notariesNotary public
A notary public in the common law world is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business...
. The office of notary is an extremely old one, having existed since a statute in 1533, and the Act attempted to modernise the office. Previously many notaries were only allowed to act in a certain area, and Section 57 of the Act removes this geographical restriction. The Act also gives the Master of the Faculties
Master of the Faculties
The Master of the Faculties is a functionary in the office of the Archbishop of Canterbury and has some important powers in English law, in particular the appointment and regulation of public notaries. The position is always held by the Dean of Arches....
, in Section 57, the power to "make provision concerning the education, training, practice, conduct and discipline of notaries", along with the way they keep records and accounts, their professional indemnity arrangements and a compensation scheme for people who lose money as a result of the dishonesty of a notary.
Part V: arbitration
Part V of the act concerns arbitrationArbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
, a method of Alternative Dispute Resolution
Alternative dispute resolution
Alternative Dispute Resolution includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. ADR basically is an alternative to a formal court hearing or litigation...
(ADR). Among other things it gives new powers to the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
to exercise powers conferred by the arbitrator, and gives the arbitrators more powers to dismiss claims or counter-claims.
Vacancies
Section 101 of the Act amends the Arbitration Act 1950 to allow the High CourtHigh Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
to appoint arbitrators to panels of 3 arbitrators where one has not been selected within a reasonable time. Previously the Arbitration Act only covers the appointment of individual arbitrators.
Role of the referee
Section 11 of the Arbitration Act 1950 said that any reference to a dispute should be made to an official referee, and that the referee could not refuse this request. Section 99 of the Courts and Legal Services Act 1990 amends this and changes the language to be permissive rather than mandatory—a referee must consult the Lord Chief Justice before he is allowed to take part. This section of the Act also allows the referee to claim fees, and the control over outside arbitrators previously held by the High Court is moved to the Court of AppealCourt of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
.
Part VI: miscellaneous and supplemental provisions
Part VI of the Act is concerned with miscellaneous and supplementary sections, such as correcting omissions in previous pieces of legislation.Family Proceedings and the Children Act 1989
Sections 9, 10 and 166 correct various errors and omissions found in the Children Act 1989Children Act 1989
The Children Act 1989 is a British Act of Parliament that altered the law in regard to children. In particular, it introduced the notion of parental responsibility. Later laws amended certain parts of the Children Act...
. Section 9 allows the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
to transfer any family law case to any specific judge or type of judge. Section 10 makes provisions for the appointment of clerks to the Inner London Crown Court
Inner London Crown Court
The Inner London Sessions House Crown Court, more commonly known as the Inner London Crown Court, is a Crown Court in London, United Kingdom. It is located in the Sessions House on Newington Causeway at the corner of Harper Road in the Newington area of the London Borough of Southwark in South London...
, and Section 166 extends certain elements of the Children Act to Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
.
Schedule 16 gives the Secretary of State
Secretary of State
Secretary of State or State Secretary is a commonly used title for a senior or mid-level post in governments around the world. The role varies between countries, and in some cases there are multiple Secretaries of State in the Government....
the power to appoint guardians ad litem
Ad litem
Ad litem is a term used in law to refer to a party appointed by a court to act in a lawsuit on behalf of another party—for instance, a child or an incapacitated adult—who is deemed incapable of representing him or herself...
and also gives the guardian access to records on the child they are responsible for. Section 16 modifies the Children Act to take into account the decision in R. v Newham London Borough Council ex parte P by considering parents of a child in care "parents" only if the child stays with them for more than 24 hours—previously the Local Council would only have to provide accommodation for the child if the child was not with its parents, regardless of how long the child had been with the parents.
Representation under legal aid
The new changes to who can gain rights of audienceRights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not ; there is no such...
necessitated changes to the way legal aid worked. Section 59 of the Act allows the defendant in the Crown Court
Crown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
to decide what sort of "legal representative" (barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
or solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
) they would like to represent them. This was put in after pressure from the Bar Council
Bar council
A bar council , in a Commonwealth country and in the Republic of Ireland, the Bar Council of Ireland is a professional body that regulates the profession of barristers together with the King's Inns. Solicitors are generally regulated by the Law society....
and the Law Society
Law Society of England and Wales
The Law Society is the professional association that represents the solicitors' profession in England and Wales. It provides services and support to practising and training solicitors as well as serving as a sounding board for law reform. Members of the Society are often consulted when important...
, both of which were worried that the other part of the legal profession would get the majority of the cases. There are exceptions, however—in the Magistrates' Court
Magistrates' Court
A magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and many other common law jurisdictions...
legal aid only provides for a solicitor, because the case is so simple that it would be a waste of money to employ a barrister.
Jurisdiction of the Parliamentary Commissioner for Administration
Section 110 extends the duties of the Parliamentary Commissioner for Administration to include investigating administrative functions and actions taken by court or tribunal staff appointed by the Lord ChancellorLord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
when those actions were not ordered by any person acting in a judicial authority. This makes the court and tribunal staff more accountable for their actions, and also provides a means of redressing problems faced by users of the courts or tribunals.
Costs against legal representatives
Section 111 modifies the Prosecution of Offences Act 1985 and allows the Magistrates' CourtMagistrates' Court
A magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and many other common law jurisdictions...
, Crown Court
Crown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
or Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
to order a legal representative in a criminal trial to pay for any "wasted costs" (costs to a party as a result of "an improper, unreasonable or negligent act or omission" from the other party). The legal representative may appeal this decision in the Magistrates' Court or Crown Court, but not in the Court of Appeal.
The procedure is similar in a civil case, with the exception that the legal representative can try and prove that the costs were not "wasted", and that the order to pay wasted costs must be made within six months of the case.
Bail applications and rights of audience for Crown Prosecutors
Section 115 amends the Prosecution of Offences Act 1985 to allow designated staff of the Crown Prosecution ServiceCrown Prosecution Service
The Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
who are not Crown Prosecutors to appear on behalf of the CPS at bail
Bail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
hearings in court. They are not as independent in such circumstances as a Crown Prosecutor would be, because they can only act in accordance with instructions given to them by a Crown Prosecutor. Schedule 18 modifies the Prosecution of Offences Act 1985 to allow the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
to modify the rights of audience
Rights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not ; there is no such...
of Crown Prosecutors.
Scope and implementation of the Act
While most of the act covers England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
only, some sections extend to Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
and Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
. Particular examples of this are the amendments to the Children Act 1989
Children Act 1989
The Children Act 1989 is a British Act of Parliament that altered the law in regard to children. In particular, it introduced the notion of parental responsibility. Later laws amended certain parts of the Children Act...
and the rules on judicial pensions and appointments.
The act was implemented at different times—some sections came into force on 1 November 1990, such as the allocation of business between the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
and County Court
County Court
A county court is a court based in or with a jurisdiction covering one or more counties, which are administrative divisions within a country, not to be confused with the medieval system of county courts held by the High Sheriff of each county.-England and Wales:County Court matters can be lodged...
s, Some came into force on 1 January 1991 such as the new discrimination laws in relation to barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s and barrister's clerks and some came into force at later dates determined by the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
.
The clause on judicial pensions came into force on 1 January 1992 in the Statutory Instrument (SI) "Courts and Legal Services Act 1990 (Commencement No 7) Order 1991". On 1 October 1991 the clauses on multinational partnerships and the modifications to the Children Act came into force with the SI "Courts and Legal Services Act 1990 (Commencement No 6) Order 1991".
The clause dealing with elimination of certain absolute rights of appeal came into force on 1 June 1992 through the Si "Courts and Legal Services Act 1990 (Commencement No 9) Order 1993". At the same time the clause on recovery of costs in civil cases came into force with the SI ",