CILEX and higher rights of audience

Does size matter? It’s a perennial question – and here I ask it in the context of litigation and advocacy rights. CILEX (Chartered Institute of Legal Executives) lawyers can already obtain them for the lower courts. But while these are ‘smaller’ cases, they can still be complex – and result in imprisonment or large sums of money being handed over.

Rights of audience

So, if practitioners can handle these cases, should they in principle be able to take on matters in the High Court and above? I would argue they should. The essential skills are the same, even if the stakes are higher. They’re not going to appear in the Supreme Court the following day but, like others with higher rights, would build up their experience and expertise.

A key mission of CILEX is to broaden access into and career opportunities for those within the legal profession. We see higher rights as an important step in recognising the equivalence of CILEX-qualified lawyers to other practitioners. The barriers have been coming down steadily since the Legal Services Act 2007 and this is one of the major remaining ones.

Our regulator is currently considering responses to a consultation it issued on whether to seek the power to grant those with higher rights of audience as well for criminal or civil work (family lawyers who want higher rights will be able to take the civil route). 

Breaking barriers

There are other reasons to give CILEX members the opportunity to gain higher rights, such as improving the sustainability of legal services and opening up career opportunities in both the Crown Prosecution Service (CPS) and the judiciary.

CILEX has long advocated for the removal of barriers to its Associate Prosecutor members’ ability to progress their careers to become Crown Prosecutors – a move that would significantly widen the pipeline of available prosecuting lawyers at a time when the CPS is experiencing a recruitment crisis. 

The change would also allow CILEX members to become Crown Prosecutors, again enhancing their career prospects. This has been a significant component of the conversation we have been driving with the Ministry of Justice and the CPS, both of which see CILEX members as part of the answer to the issues in the criminal justice system.

Surveys by both CILEX and CILEX Regulation have shown overwhelming support among members for higher rights. We expect the ability to gain higher rights of audience will drive up the number of members applying to become Associate Prosecutors, Crown Prosecutors and, in time, judges. The make-up of CILEX’s membership – 77 per cent are women, 16 per cent from ethnic minority backgrounds and 85 per cent attended state schools – has already helped improve the profession’s overall diversity profile and could do the same for the judiciary.

Representation in the profession

The impact of widening the pool of potential judges and prosecutors cannot be underestimated at a time when a lack of specialist lawyers is adding to court backlogs and is putting enormous strain on our already creaking justice system.

Under CILEX Regulation’s proposals, members seeking higher rights of audience would have to complete additional training and assessment and complete at least one renewal period of their existing advocacy rights before applying. 

In our response, we urged it to consider how it might expedite members who have only criminal advocacy rights and not litigation rights and are therefore not eligible to apply as the rules are currently envisaged. 

If this proposal moves forward, the Legal Services Board will have the final say. The oversight regulator has recognised the importance of encouraging not only diversity in the profession but also diversity of provision in legal services, along with the need for more competition and consumer choice. Allowing CILEX lawyers to gain higher rights ticks all of these boxes.

Conclusion

CILEX, as we know it today, has existed for some 60 years and it is 14 years since the rules allowed our members to become partners in solicitors’ firms. This is without question a mature part of the legal profession. Any argument for barristers and solicitors maintaining their monopoly in the higher courts no longer holds good. As we have done throughout those 60 years, CILEX looks forward to breaking down some more barriers.

Matthew Huggett is president of CILEX (Chartered Institute of Legal Executives): cilex.org.uk