Courts and Legal Services Act 1990
The Courts and Legal Services Act 1990 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 the county courts.
The most significant changes were made in the way the legal profession was organised and regulated. The act broke the monopoly solicitors 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, Judicial Committee of the Privy Council, and House of Lords if they qualify as solicitor advocates.
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 " 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".
Background and previous attempts at reform
Benson Commission
During the 1960s the legal profession 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, 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 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,
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 affair in 1982 highlighted severe problems in the way solicitors 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 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 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.
Loss of conveyancing monopoly
The next major reform was the loss of the conveyancing 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, finished its report in September 1984. The government almost immediately changed the rules to allow for licensed conveyancers, 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 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.
Marre Committee
Following the loss of their conveyancing monopoly, solicitors 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.