Edward Garnier Presents His Review on the Isle of Man's Legal Services to Tynwald
Edward Garnier KC
On Monday 16 October 2023 Lord Garnier KC presented his Review of the provision of legal services on the Isle of Man to the Island’s Parliament, the Tynwald. Commissioned by the Minister for Justice and Home Affairs, Jane Poole-Wilson, in April 2021 to conduct the Review, Edward Garnier, assisted by
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On Monday 16 October 2023 Lord Garnier KC presented his Review of the provision of legal services on the Isle of Man to the Island’s Parliament, the Tynwald. Commissioned by the Minister for Justice and Home Affairs, Jane Poole-Wilson, in April 2021 to conduct the Review, Edward Garnier, assisted by 4 Pump Court’s Samantha O’Brien O’Reilly, handed it to the Government in March 2023.

https://www.tynwald.org.im/spfile?file=/business/opqp/sittings/20212026/2023-GD-0099.pdf

In the Foreword to the Report Edward Garnier wrote:

“After several unforeseen delays caused by Covid and other related and unrelated problems, I am now able to present to the Minister for Justice and Home Affairs and the Government of the Isle of Man my report following a review of certain aspects of the legal services sector. As will be well known within the Island’s political and legal circles, and to a lesser extent outside those communities, the catalyst for this Review was an earlier two-stage consideration of the Isle of Man’s legal services sector by the Tynwald’s Constitutional and Legal Affairs and Justice Committee (the “Committee”) and by the Government. First, in February 2018, the Committee announced it was to conduct an inquiry into the regulation of the legal services in the Isle of Man with reference to the role of the Isle of Man Law Society (“IOMLS”) and the Advocates Disciplinary Tribunal (“ADT”). In April 2018, the scope of that inquiry was extended to cover the process of becoming a Manx advocate. The Committee concluded its inquiry and reported its findings and recommendations to Tynwald in November 2020 (the “Report”). It suggested that reform was needed in several areas but also recommended that an independent review be carried out by someone with legal experience, but from off-Island and who had not practised in the Isle of Man, to consider the issues highlighted in the Report. Secondly, in April 2021, Tynwald approved the Report including some amended recommendations and a response from the Government in which some, but not all, of the Committee’s recommendations and conclusions were accepted (the “Response”). It was, however, agreed that there be an independent review. I was invited to conduct the independent review in January 2022 by the Deputy Chief Minister and Minister for Justice and Home Affairs, Mrs Jane Poole-Wilson MHK. This report is the result of that independent review (the “Review”)…

“I have found, perhaps unsurprisingly, a mixed picture: things to celebrate and things I believe need changing, but with all my conclusions and recommendations, I have advanced from the evidence and in a spirit of constructive criticism, admiration, and goodwill. I hope it will be seen that I have come with a lantern, not a pickaxe. This is my Review: it is not an indictment. The legal profession, the justice system, and the rule of law in the Isle of Man are not in the dock. I hope what I have to say will assist the Isle of Man and the Government, members of Tynwald, academics, lawyers, and users of the legal system in the Isle of Man. This Review is also intended to help the public, be they civil litigants, witnesses or criminal defendants, indeed, however they come into contact with lawyers and the legal services sector. In short, this Review is intended for all those interested in justice, and to help them see the legal services sector and those who practise within it as a valuable, valued, accessible, and relevant part of, 4 and contributor to, the life of the community and all those who live and work in, or visit the Isle of Man. This is, above all, a Review for public consumption and comment and I hope that it will encourage constructive new thinking and, where necessary and appropriate, reform. Chronologically, it follows on from the 1991 Clothier Report and 2001 Calcutt Report and, more obviously, from the recent Report of the Constitutional and Legal Affairs and Justice Committee and the Government’s Response to it. That said, the recommendations in this Review are mine and mine alone. They are put forward for consideration by others and are there to be tested and, if necessary, tested to destruction. I confess that the path to completion has not been smooth, but any difficulties thrown in my way have affected us all equally. That I have now produced a Review is a testament to the patience and willingness of my witnesses who many months ago took time off from their daily work and other activities to provide me with written and oral evidence. It is also a testament to the industry of Samantha O’Brien O’Reilly from my Chambers whose assistance has proved invaluable, and without whom this Report would not have been completed, and to the patience and goodwill of Mrs Poole-Wilson and Mr Dan Davies who may sometimes have thought that my Review would never see the light of day.”

The scope of the Review was defined as follows: “The review will consider reforms to the Manx legal services framework as identified in the Tynwald Constitutional and Legal Affairs and Justice Committee’s report, the Council of Ministers’ subsequent response and the recommendations approved by Tynwald in in April 2021. In particular, the review should consider: • the Law Society’s proposals to revise its system for qualification for Manx students and address the issues of a route to the Manx Bar for those without a legal degree. • requirements regarding training and continuous professional development post qualification. • the use and value of practicing certificates for improved consumer protection and oversight of all who practice law on the Island, including barristers and solicitors from other common law jurisdictions. • the process for re-qualifying as a Manx advocate for barristers and solicitors from other common law jurisdictions and identify any amendments or improvements to this system. • the current system of right of audience at the Manx bar and whether it requires amending, and if so, what alternatives there may be to this system. • the process by which non-Manx qualified legal professionals are permitted to practice on the Island and how they are regulated and what may be done to improve this system. • options for reform of the complaints process and the disciplinary system for advocates • the role of the Law Society as regulator and representative body of the legal profession; and • such other areas as may be relevant to consideration of the provision of legal services in the Isle of Man. The review should consider the views of a wide range of stakeholders connected to or affected by the provision of legal services in the Isle of Man. The review should not consider individual matters or give judgment on settled cases or those currently within the legal system”.

Edward Garnier made the following recommendations:

1. A degree ought not to be a necessary requirement for becoming an advocate in the Isle of Man so long as a robust system of legal education and training is in place.

2. The Deemsters and the IOMLS, as well as the Committee, individual practitioners, and Isle of Man law firms, should closely monitor the progress of the new SQE and apprenticeship systems in England and Wales with a view to reconsidering in two years’ time the requirements for entry to the profession as set out in Paragraph 5 of the 2022 Regulations.

3. The new system of assessment for trainee advocates implemented by the 2022 Regulations should be kept under review and considered again in two years’ time so that its success or otherwise can be measured.

4. Barristers/advocates appearing on Temporary Advocates Licences (TALs) should be invited where possible to take part in training sessions for trainee advocates or new practitioners so that good use can be made of their time whilst in the Isle of Man.

5. There needs to be a Director of Legal Studies in the Isle of Man, perhaps an office holder within the Isle of Man Law Society (IOMLS), who can monitor and guide trainee advocates as they progress through their studies towards their Bar examinations and beyond.

6. The Isle of Man judiciary should try to attend the training and other judicial studies available to both full-time and part-time judges in England and Wales.

7. The Bar examinations should be reformed to ensure that entrance to and participation in the Isle of Man’s legal profession should not be seen as equivalent to membership of a small exclusive club open only to those with the finances and professional connections to allow them to navigate the examination system.

8. The Bar examinations ought to focus on the law of the Isle of Man.

9. The syllabus for the Bar examinations needs to focus predominantly on Manx law and practice, whilst recognising that in any given case or legal problem to be solved, there will or may be similar or identical laws and practices in England and Wales, Scotland, Northern Ireland or Ireland that will need to be considered.

10. The syllabus for the Bar examinations should go into far more detail than it currently does.

11. A detailed syllabus should be published every year, similar to that in England and Wales and Ireland.

12. The system of marking and grading the Bar examinations should be more transparent so that candidates for the Bar can know what is expected of them.

13. The prompt and accurate updating of secondary legislation should be a priority for the Government, to ensure that advocates and litigants in person can access the correct version of the relevant legislation at any given time.

14. The IOMLS and the designers of the course at the Institute of Law Jersey should consider how the current lack of resources for trainee advocates can best be remedied, either by way of textbooks or otherwise.

15. The Guidance for applying for a TAL should be kept under careful review to ensure that it covers each ground of application and that it is accessible to the public, including those who are not aware what a TAL is.

16. Advocates, when approached by someone with a claim in respect of which that advocate is unable to act for one of the reasons set out in Section 17 of the Advocates Act, should direct members of the public to the Guidance for applying for a TAL.

17. The Isle of Man’s judges should remain the primary and statutory point of control over who may or may not appear before them and, whereas the use of TALs can be in the interests of justice, because it adds value to a particular case through the use of experience and expertise that is not available in the Isle of Man or it overcomes genuine problems of conflict within a small profession, it should not become the default position whenever an apparently difficult case or professional inconvenience emerges.

18. A workable requalification system should be introduced that caters for both the experienced and less experienced overseas entrant with, say, 10 years’ post-qualification experience providing the boundary between the need for requalification and some acceptable form of approval.

19. The Isle of Man should adopt the definitions in Part 3 of the UK’s Legal Services Act 2007.

20. The profession must embrace CPD now rather than waiting for others to impose a less welcome system later. The IOMLS should publish its new CPD regime as soon as possible.

21. CPD requirements for advocates with a litigation practice should include a compulsory advocacy requirement.

22. The IOMLS should actively review its proxy voting system.

23. Except where the facts or nature of the complaint require all or part of the hearing before the Advocates’ Disciplinary Tribunal (ADT) to be held in private, the default position should be that the substantive hearings (as opposed to the interlocutory i.e. administrative or case management hearings) should be open to the public. At the very least, the ADT’s website should publish information about, and the media should be informed of, the details of the ADT’s sittings and the nature of the complaint.

24. Either the Law Officers themselves, or an independent advocate instructed by one of the Law Officers, as opposed to the IOMLS or, as at present, the complainant, should present complaints to the ADT.

25. The ADT Guidance Notes should be prominently published on the IOMLS’s and the ADT section of the courts’ websites. Reference to this Guidance should be made in firms’ complaints policies so that it can be easily found if needed by members of the public.

26. The make-up and procedures of the ADT should be reformed but it should not be abolished. Appointments should be time-limited. The current membership of the ADT with over 6 years’ service on 1 January 2024 should be retired in order of length of service at 6 month intervals, so as to allow for the introduction of new members on rotation. Any new appointees other than the Chair should be limited to two three year terms, and that the next Chair be limited to two four year terms.

27. The reputational risk to the Isle of Man from the current system is not sufficient to justify the cost of separating the regulatory and the representative functions of the IOMLS. In order to minimise any risk, immediate consideration should be given to the reforms of the IOMLS and the ADT discussed in this Review.

28. A Code of Conduct for advocates should be published, along with an enforcement policy for breaches of this Code. This should include a general definition or a non-exhaustive list of examples of what constitutes ‘professional misconduct’, whilst not fettering the ADT’s discretion to decide what does and does not constitute ‘professional misconduct’ in any particular case as it sees fit.

29. The President of the IOMLS should produce an annual report (which must be a publicly available document) at the beginning of the legal year, in which particular reference is made to any changes of note to its workings and which details all ADT cases heard in the previous year.

30. Each firm should have on its website and in hard copy form available to its clients and potential clients an engagement letter explaining the relationship and terms of the contract between the client and the firm.

31. Each firm should have an understandable and accessible internal complaints system in place which should be published on their website and/or other publicly available sites, alongside the numbers and types of complaints they have received and how they have been resolved.