Legal Services Bill [HL]

moved Amendment No. 614: 614: Clause 184, page 99, line 4, leave out subsection (2) The noble Lord said: My Lords, this amendment, which was discussed at an earlier stage, is intended to remove the exemption from the need to hold a practising certificate which applies to solicitors in government service. At present all solicitors providing legal services in private practice are required to hold a practising certificate, and thus to contribute towards the costs of regulation. Solicitors in commerce and industry and in local government are also required to hold a practising certificate if they undertake reserved activities or if they are held out as solicitors. Government solicitors are wholly exempt from the need to hold such a certificate. Incidentally, there is no similar exemption for government solicitors in Scotland. The Government have recognised the indefensibility of the present exemption in other contexts. When the Crown Prosecution Service was created in the 1980s, prosecuting solicitors who had formerly worked in local government and were required to hold practising certificates transferred to a central government department. The Government recognised that it would be unjustified for that change of employer to remove the need for them to hold a practising certificate, so the Prosecution of Offences Act specifically provided for solicitors employed in the CPS to hold a practising certificate. Similarly, when the Bar Council’s practising certificate fees became enforceable as a result of the Access to Justice Act 1999, there was no provision excluding government barristers from the need to hold a practising certificate. The result is to create a quite discriminatory situation. Government solicitors are exempt from the need to hold a practising certificate while government barristers must pay. The position might be understandable if government solicitors were regarded in some way as second-class lawyers not requiring the same qualifications and not subject to the same regulatory requirements as their colleagues in private practice; but this, of course, is not the case. Government solicitors are treated as being equally professional and equally subject to professional discipline. Your Lordships may recall that, in Committee, discussion took place on this amendment and the Minister suggested that because government solicitors did not hold client money, they did not pose any regulatory risk. That argument is wholly misconceived. Regulation of the solicitors’ profession is not simply about the arrangements for holding clients’ money or for dealing with lay clients. It also encompasses establishing qualification requirements to become a solicitor, establishing the continuing professional development requirements, establishing the rules of conduct and monitoring and enforcing compliance with the rules of conduct. All those issues are as applicable to government solicitors as they are to those in private practice. Government solicitors frequently have to advise on the lawfulness of particular action where the wishes of their Minister may not be lawfully achieved. It is essential that those advising in such circumstances are subject to professional duties, including duties to the court, to help ensure that they give independent legal advice rather than simply the advice that the Minister wishes to hear. We recognise that it is inappropriate for practising certificate fees to be the same for all sectors when there are significant differences in the extent to which different sectors require the use of regulatory resources. In the case of government lawyers and lawyers in commerce, industry and local government, the cost of practising certificate fees should be less than for solicitors in private practice because they do not hold client money. The apparatus to guard against mishandling of client money is not relevant to their sector. For those reasons, the fees for solicitors employed in government and in commerce and industry should be substantially less than those in private practice; but that does not mean that they should be exempt. The present legislation does not allow the Law Society to charge differential fees in that way. However, amendments to the Solicitors Act, which are already incorporated in the Bill, will give that power to the Law Society in the future. Accordingly, a requirement to hold a practising certificate will not lead to an unfair burden being put on government lawyers or on their departments, which will in practice meet the cost of their practising certificates. It will simply ensure that government solicitors are no longer unfairly exempted from the requirement to contribute an appropriate amount towards the cost of regulating solicitors. I beg to move.