Hansard

In the context of an extensive debate, I will address one specific issue that has not been mentioned much—advocates. The argument is made that it is uneconomic for advocates to be self-employed. I struggle to see why that should be the case, and so do advocates. The argument goes that if they worked in partnership, either with each other or with solicitors, it would be more economical. I do not see the logic in that, and neither do they.

I am not an advocate, as members will appreciate. It appears to be the case that advocates' overheads are very small, because of the highly specialised nature of what they do. Essentially, all that an advocate needs is a good clerk, an office and time in court. I have been told that the overheads amount to less than 10 per cent of the total fees and contribute to collective activities that might comprise 15 per cent of their costs. I am also told that solicitors have to run an overhead of about 66 per cent—they are doing very well if they can beat that. Given such numbers, it is extremely difficult to see how advocates could possibly benefit by merging with each other, or how the legal profession in general would benefit if they were to join solicitors in partnerships.

Although the OFT might take the view that there are economies to be made, I get the impression that it has simply not looked at the numbers. It would be useful if someone looked at the numbers and demonstrated what has not yet been demonstrated—that there are indeed efficiencies to be made. My analysis suggests that there is no such scope for efficiencies.

Advocates are not barristers not simply because they work in different jurisdictions, as we all know, but because the Scottish and English legal systems have different histories. Historically, in England solicitors never had a right of audience, although they have acquired some such rights; only barristers had a right of access to courts. Proportionately, there are far more barristers in England than there are advocates in Scotland. We have somewhere between 400 and 500 advocates in Scotland. The cabinet secretary suggested that the figure is 470. I will not argue with that. The precise figure depends on how many of the people on the list are retired, and we are not sure about that.

Advocates are specialists. The huge advantage of having a referral bar of specialists is that they can take part in proceedings from different sides of the argument: one week they can appear for the defence, and the next they can appear in a different case for the prosecution. Their specialist skills can be deployed by either party in a case, depending on the circumstances. If advocates were to join a firm of solicitors or were contracted to a public body, they would necessarily always be on one side of a case. It is difficult to see how that would benefit the profession, the development of law or justice.

On the basis of my analysis over the past few days of what advocates do, how they see themselves and how the system works, it does not seem that their being able to form partnerships with each other or with solicitors would bring much benefit. Although it might be fair that they should be able to form such partnerships, it seems that their doing so would not help much. The only effect of the proposal would be to restrict the number of advocates who were available for referral, which, on balance, is probably not a good thing, given how few advocates we have.

However, it seems that a few restrictions might need to be eased, or perhaps even removed. The restrictions that prevent movements by qualified advocates and qualified solicitors between different branches of the profession could and should be removed. I appreciate that the debate is about what the issues might be, and that we are not really looking for answers, but I am an awkward soul, and I will bung in one of the possible answers: the restrictions—in both directions—should be removed as rapidly as possible.

I also suggest that it is probably no longer appropriate for advocates to say that they should not be on the same team as solicitor advocates. Quite frankly, that seems to be restrictive and a tad difficult to defend, so it might be better if the advocates simply get rid of that rule before someone forces them to do so. Leaving aside the restrictions on drift between the solicitor and advocate sides of the profession, which should be lifted, the existing system works well.

It has been argued that citizens should have direct access to advocates. In principle, the present arrangement for relationships with advocates seems to be restrictive but, again, I am struggling to see where there is a difficulty. Advocates are good at taking the legal issues and facts that have been teased out by solicitors and applying their skills and experience to what are often specialist cases. They can provide advice and, if necessary, appear in court. If everyone were to have direct access to advocates, advocates would simply have to develop the wide-ranging skills that solicitors already have, which would dilute their specialisation. The result would be that we would simply have one amorphous profession, and it is difficult to see how that would benefit anyone.

I understand that professionals such as surveyors have direct access to advocates, which is perfectly reasonable. It is not obvious why any professional who can work out precisely what the issues are should not have direct access to advocates. I hope that there are no restrictions on that but, if there are, I suggest that they be removed promptly. However, the suggestion that the public—even those of us who have law degrees or similar qualifications—should have direct access to advocates does not make much sense. Of course, it is incumbent on solicitors to ensure that if the teasing-out process is short and sweet, it should be undertaken swiftly and at little expense.

The problem with multidisciplinary partnerships is regulation. Conceptually, there seems to be no problem in having a regulator for the individual professionals in a partnership. For example, chartered accountants have a regulatory body and surveyors have a regulatory body. If, in some specialised markets, the relevant professional happens to be an engineer like me, they have a professional body. The Law Society regulates solicitors.

Any amalgamation of the professions in a multidisciplinary partnership would not incur a problem with regulating individual partners, but it is plain that the difficulty would be in regulating the total firm if its partners were not all lawyers. That question must be addressed. It does not have a simple answer, but we need to sort it out. A legal services board to cover everything might be the only way to go, but I am not sure whether that would be a good answer. Making the Law Society responsible for all the other professionals might be better—they would just have to sign up to the same confidentiality rules. That might be the way to go, but I offer no suggestion. Regulating whole firms would be the issue, as individual professionals would not be difficult to regulate.

I toss in the fact that lawyers currently have personal responsibility for their staff. Confidentiality applies not merely to lawyers but to everybody who is involved in the business train that deals with legal information, so, conceptually, it is difficult to see why other members of staff should not be bound by similar rules.

I have covered the two issues that I wanted to deal with, so I will stop there.