The Legal Services Board (LSB) has joined the Solicitors Regulation Authority (SRA) in opposing a ban on professional McKenzie Friends.
The ban was proposed by the Judicial Executive Board (JEB) earlier this year, to protect “vulnerable litigants” from “unregulated and uninsured individuals of varying and generally unverifiable competence” carrying out reserved legal activities.
Neil Buckley, chief executive of the LSB, said: “We do not believe that the consultation paper adequately explains why a ban is necessary, what harm the ban would address or what the consequences of the ban might be for consumers.”
Mr Buckley said this week’s legal needs survey showed that 64% of consumers with a legal problem did not seek independent help.
“In this context, any moves to restrict consumers’ choices should be targeted and based on evidence of detriment.”
The LSB took issue with the suggestion that not banning professional McKenzie Friends would be contrary to the intention of Parliament and said the “alternative view on parliamentary intention could be equally valid”.
The SRA said it was “unconvinced” by the JEB’s arguments in favour of a ban and said a “blanket fee prohibition” might deprive litigants in person of support “even where there are no quality issues”. In its response, the SRA said the move “would limit the ability of charities to charge a small amount to cover their costs”.
The regulator went on: “The fee prohibition would also be difficult to enforce and would be easy to circumvent.
“Although the ways in which people find and use legal services are changing, and there is innovation in the legal services market, many people still cannot get access to the legal advice that they need at an affordable price.”
The SRA said it recognised the “potential challenges” that arose from the increase in the number of McKenzie Friends, but said courts had a “wide discretion” under their inherent jurisdiction to regulate proceedings.
The regulator said the draft rules of court, the subject of the JEB consultation, already provided that orders permitting McKenzie Friends to have rights of audience must only be granted for good reason.
“These powers enable the court to control the use of McKenzie Friends, and limit or prevent their involvement in litigation where it would not further the effective administration of justice.
“The tribunals are experienced in handling non-lawyer representatives, including those of dubious quality and behaviour, and it may be that learning lessons from the tribunal judiciary would be more effective than a ban on fees.”
In its response, the LSB also did not back the JEB’s other main proposal – that the name ‘McKenzie Friend’ should be replaced with ‘court supporter’, while the SRA agreed with the consultation.
The LSB said that while it supported the principle of renaming, ‘court supporter’ could be interpreted as “suggesting that the individual is part of the court infrastructure”.
The LSB also questioned whether a standard form of notice should be introduced for McKenzie Friends, warning against imposing “additional burdens” on litigants in person, and said there was insufficient detail from the JEB on the planned code of conduct for the LSB to support it.
The LSB added that it was not convinced that, by allowing professional McKenzie Friends, a “new branch of the legal profession” was being created, citing the low use of McKenzie Friends.
The oversight regulator has previously supported recognition of fee-charging McKenzie Friends as a “legitimate feature of the evolving legal services market”, as long there are safeguards. The LSB was responding to a favourable report from the Legal Services Consumer Panel.
The SRA agreed that a standard form notice signed by the litigant in person and McKenzie Friend should be introduced at the time of appointment, including a code of conduct.
The regulator said simple guidance should be given to litigants in person and prospective McKenzie Friends about how to complete the notice and courts should be able to grant permission for them to exercise rights of advocacy and litigation even without a notice.
Responding to the LSB, the chairman of the Bar Council, Chantal-Aimée Doerries QC, said: “The solution to government legal aid cuts is not to allow untrained, unregulated, and uninsured McKenzie Friends to undertake reserved legal activities, such as rights of audience before the courts, and to charge for these services.
“I disagree with the Legal Services Board’s statement today that the case has not been made for an outright ban on fee charging McKenzie Friends. Some paid McKenzie Friends charge as much as £125 an hour. Many members of the junior Bar, for example, will charge around £90 an hour, and all have completed a minimum of five year’s study, including 120 hours of advocacy training and a year of working under close supervision of a senior colleague, as well as being insured and regulated.
“Those who instruct a paid McKenzie friend would be better off employing a junior barrister or solicitor. This is often more cost effective and will always represent better value for money.”