A preliminary report into the system of rights of audience in the Scottish Supreme Courts has been published. The review, commissioned by the Scottish Government, is looking at issues relating to the appearance of advocates and solicitor advocates in the Court of Session and High Court..
Both advocates and solicitor advocates have rights of audience in the Court of Session and High Court.
Advocates, regulated by the Faculty of Advocates, have been in existence for hundreds of years. Solicitor advocates are relative newcomers - qualified solicitor advocates were given rights of audience in 1990, with the first appearing in the higher courts in 1993..
Solicitor advocates were created to take advantage of the court experience built up by solicitors through extensive sheriff court appearance work, and to provide clients with an extended choice of well trained, experienced and regulated legal professionals to represent them. They go through a different training process, and are subject to different complaints and regulatory procedures, through the Law Society of Scotland. .
As with all innovations, there have been teething problems, culminating in a recent murder case, where the High Court criticised the behaviour of solicitors representing the defendant and Lord Justice Clerk Lord Gill called for a review into the workings of the system of solicitor advocates..
His wish was granted in September last year, when Justice Secretary Kenny MacAskill asked Senior Scottish Investment Banker Ben Thomson to carry out a review - of the whole system of rights of audience in the Supreme Courts, including that used by advocates..
In particular, said the Justice Secretary, the review was to consider the desirability of common principles applying to the rights of all practitioners in the senior courts, and to consider fair competition between solicitor advocate and advocates. The review was also to ensure the proper administration of justice..
Ben Thomson published his draft findings earlier this week..
"There is a great deal that we can be proud of in our legal profession in Scotland, and I believe that maintaining the two separate branches of the profession preserves our strong Scottish traditions and encourages healthy competition," he said. "However it is apparent that there are different rules and conventions surrounding advocates and solicitor advocates which can cause issues.".
To resolve these issues, the review makes recommendations in three key areas:.
- A universal standard examination for admission as a pleader in the Supreme Courts should be established, which should “raise the threshold of knowledge and skill required to appear in the Supreme Courts, both for advocates and for solicitor advocates”, and should not create a barrier for any particular group. The examination should test three key areas – knowledge, practical ability and experience - and pleaders should be retested on a regular basis. The review suggests every three or five years.
- Currently advocates and solicitor advocates have their own conduct rules. The review does not see any reason for such a distinction to continue, and recommends a common code of practice for all pleaders.
- The Complaints Commission should take on an enhanced role to provide one complaints process for both solicitors and advocates. The Faculty of Advocates and the Law Society should be more proactive in maintaining professional standards.
The review also states that there is no reason to remove Rule 3 (a Law Society rule that says that a solicitor must explain to clients the advantages and disadvantages in instructing an advocate or a solicitor advocate, so that the client can decide who should represent him in court). The review then considers whether a solicitor should be able to instruct a solicitor advocate from his or her own firm. It recommends that this should be allowed - as long as it is done in accordance with Rule 3. .
The Justice Secretary welcomed the draft report, saying that its publication "is an important step in the review process and provides an opportunity for stakeholders to comment.".
The Law Society of Scotland echoed his comments. .
"We want to see changes brought in that will make sure that we have a fair and effective system that works for everyone and that clients are properly represented in court whether by an advocate or a solicitor advocate. While there are further discussions to be had on the detail, the review’s findings makes clear those areas that work well in addition to those which require change," said Law Society President Ian Smart..
Comments are now being invited on the draft report, and should be submitted by 19th February 2010. The review is expected to publish its final report in March.
Draft report
http://www.scotland.gov.uk/Resource/Doc/254431/0093281.pdf
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