Earlier in the year, before the election, the Law Society brought its major concerns, anxieties and ideas together in one handy document, Delivering Justice: The Law Society Manifesto. The main theme was that of curbing the increasing power of the state and safeguarding the freedom of the individual.
Since the election, the government has met many of its demands. Two weeks ago, the new government published details of the full coalition agreement. It was pleasing to see commitments to: bring greater safeguards to the DNA database; defend trial by jury; curb the use of law aimed at the terrorist but directed at the misuser of wheelie bins; regulate CCTV; scale back the Vetting and Barring scheme; and to restrict kneejerk statutory response to any and every newsworthy criminal act. Best of all, the government promised a response to the call for a review of the many ‘new’ offences created in recent years.
There were other successes, too – not least the abolition of home information packs.
There are others, of course, who have taken a similar approach to the Law Society on these topics, but there is no need for us to be diffident. We have been both consistent and determined in campaigning on all of these aspects of national concern over the years. It goes to show that the sustained application of rational argument can bring success over time.
Looking forward, the last thing for the Law Society to do is to sit on its hands feeling smug. The fact that government is under new management provides a great opportunity for it and the profession to look afresh at old issues in need of a new approach. The immediate action taken by government to abolish HIPs is more than welcome, but there is much to do to reform the homebuying process. The Law Society is in the vanguard of developing new techniques and approaches to simplify the conveyancing process and we would value the opportunity to work closely with government on the subject.
Legal aid, too, is crying out for change. The Society is already undertaking a comprehensive review of access to justice in England and Wales, which assumes even greater prominence given the government’s commitment to review legal aid provision. The review has thus far published an interim report which is open for consultation on the Society website. The substance of the review will form the basis of the Society’s response to the government on behalf of the profession. I hope that a great many solicitors will contribute their views.
Perhaps most importantly, the new lord chancellor should encourage a period of reflection on the legal reforms of the past three years. Change is often a good and necessary thing, and there have certainly been a number of necessary reforms to the legal profession in recent times. But three years on from the passage of the Legal Services Act, there are some very valid concerns that not all has unfolded as originally envisioned.
Like any system which has evolved over centuries, the legal ‘ecosystem’ in which we operate is an inherently fragile thing. It is inevitable that if we tinker with any part of it then we risk unbalancing the remainder quite unintentionally. This is not to say that we should not change – but where we do it should be with caution and, as far as possible, full knowledge of the consequences.
We need to be clear about the possible adverse effect of the structural changes created by the act on the profession. We need also to be clear that, in attempting to implement outcomes-focused regulation within an ambitious timetable, we are not asking the impossible of either the profession or the Solicitors Regulation Authority.
Where there are clear advantages to reform, we need to make sure that the correct balance has been struck between creating opportunity and guarding against danger. On alternative business structures, for example, it is right that both the consumer and the profession should have the choice that new business structures will bring. Yet we have to ensure that any licensing system fully complies with those provisions of the act which stipulate a need to safeguard access to justice. It is also critical that a level playing field should exist for all providers of legal services in terms of both rules and regulation.
Our profession is unlike any other and requires real understanding of its unique status by those who seek to implement reform. Solicitors do not and cannot sell legal services in the same way that a local shop sells a can of beans, as one former minister once claimed. They are trusted advisers providing careful legal advice, often to clients in distress and undergoing mental and sometimes physical trauma. That is why we have to take extra care in driving reform forward and take stock of all that has happened since the passage of the act, to ensure that we do not fall prey to unintended consequences.
There is a great deal for the new lord chancellor to take on board, and my fellow officeholders and I will be on hand to offer our advice in the coming months.
Robert Heslett is president of the Law Society