There is much to applaud in the Clementi review, argues Edward Nally in his speech last week to the annual law society conference. Yet solicitors must be wary of threats to access to justice


What will life be like after the Clementi Review? How will the government’s view of [Sir David’s] recommendations change the profession and the Law Society? Life as a solicitor will be different. I believe it will change for the better.


The Law Society supports Sir David’s vision of legal disciplinary practices (LDPs). So too do solicitors. You told us so when we consulted with you before our response to Clementi. LDPs are the future of the profession, [offering] more career choice, perhaps even a better quality of professional life, [and] more options for business expansion and for external investment.


And the core principle at the heart of Sir David’s vision of LDPs is one we solicitors hold dear – the public interest. Securing more consumer choice, better value for money, providing greater access to justice and, above all, improving the service offered to consumers of all legal services. The Law Society is wholeheartedly committed to all of these aims.


But there is a bottom line in all of this. There can be no dilution of the core values and standards of the solicitors’ profession. There will need to be rules to prevent inappropriate cross-selling of services within LDPs. And safeguards against conflicts or any improper interference by external investors with the actual business of delivering legal services.


At its meeting in May, the Law Society Council agreed, in principle, to separate the governance of representation from regulation. In September, it signalled up to 50% involvement of lay members in any future regulatory body it establishes.


There will be an appointed chair. Solicitor members will be partly appointed and partly elected and all appointment procedures will follow Nolan principles that will be conducted independently of government.


The future of the Law Society as a regulator will be different. Although we don’t yet know what the Clementi report will say, we in the Law Society are committed to change.


We have realised that the governance of regulation must be separate from the governance of representation. Our own internal governance review has recommended changes, and our council has embraced them. These changes will take us as far as we can go of our own accord without legislation.


How should the Law Society’s non-regulatory functions be conducted in the future?


We recently launched a review of our professional service activities to look at how we can best support the profession and represent our members in the future. A consultation with the profession will begin early next year. All solicitors have an opportunity to think about what it is they really want from membership of the Law Society. A Law Society of the future in which it is highly likely that there will be voluntary members.


One of the goals of Clementi is to improve access to justice and consumer choice. But one of the Law Society’s goals is to ensure access to justice for everyone.


In the last ten years, we have witnessed the decline of a legal aid system originally intended by the government to ensure just that – equal access to justice. The vision was simple: justice for all; legal advice for the poor; and a fair income for the lawyers who help them. If only it had turned out that way.


Growing numbers of solicitors are giving up legal aid. Others struggle on trying to run businesses that are no longer economically viable.


But why should that matter to government? Because entire communities across England and Wales have been left without legal aid provision; the poor and the vulnerable denied proper access to justice – unable to pursue their rights.


Legal aid should be about the real difference that access to justice makes to the lives of ordinary people. Without that help the most disadvantaged members of our communities cannot defend their fundamental rights. We want to see a system that values legal aid lawyers, that pays them properly for the important work that they do, and provides new solicitors the option of a fulfilling career in legal aid work.


It is essential to invest in a new generation of solicitors willing to commit to a career in legal aid work. We want the government to put more money in to legal aid. There is only so much that can be done to improve a failing system within a limited budget.


This is a system in crisis. What we have seen is a progressive invasion of the civil legal aid budget because the government has failed to plan for the increased cost of criminal cases. The government must protect the civil legal aid budget from the increasing demands of criminal legal aid. What possible objection can the government have to ring-fencing the civil legal aid budget?


Respect for diversity and commitment to equality are also vitally important. Last year, more than half of our new solicitors were women; one in six was from an ethnic background.


But equality and diversity aren’t just about statistics. It’s not about being politically correct. As far as I’m concerned, it’s about overcoming inequalities, it’s about making our profession more inclusive, it’s about communicating better with all of our clients.


To do this and to do it properly we must build equality and diversity into every aspect of our professional work. It must be incorporated into the way we recruit, support and encourage solicitors and those working within the profession.


The Law Society’s revised anti-discrimination rule is wider in scope than its predecessor. Work is now in progress to increase the profession’s awareness of the new rule. And we will be doing a great deal to promote it and to enforce it.


Many forward-looking firms now recognise that not only is it right to have regard to equality and diversity – it also makes sound business sense. There is a lot of positive work being undertaken by firms to promote racial equality and diversity. To recognise their achievements, we are launching a joint awards scheme with the Commission for Racial Equality later this year and hope to make the first awards in 2005.


The Law Society is also assisting the profession to comply with the provisions of the Disability Discrimination Act. And we’ve recently published a handbook for all solicitors, providing essential guidance on how best to implement equality and diversity in to all aspects of their firms.


And what about equality of opportunity? I come from a working-class background and was very lucky to receive a grant to enable me to start training as a solicitor. But students entering the profession today are not able to enjoy that privilege.


The spectre of debt which faces them is appalling. The average debt for a law student today is about £20,000. Our legal profession has to reflect the society which it serves. How can it do that if the only people able to enter the practice of the law are those that can afford it?


For some potential lawyers, getting started in the legal profession can be an almost impossible task. The Law Society wanted to find a way of helping those talented individuals. So we launched our diversity access scheme last year. It has been a great success and we continue to drive forward a wide-ranging review of the education and training framework for solicitors.


Sadly, some women solicitors, in particular, give up their legal careers when the obstacles they face become insurmountable. We are helping the profession to ensure that recruitment policies and working practices are open and fair. We are undertaking research to find out more about the career experiences of disabled solicitors.


Career progression is undoubtedly a major problem. This is particularly true of the bench. The number of women solicitors who meet the criteria for judicial appointment has grown substantially. But women continue to be significantly under-represented in the higher ranks of the judiciary.


There is no doubt that the system of appointments was deeply flawed and some of its processes discriminated against many categories of potential applicants. The fundamental principle in appointing judges is – and must remain – selection on merit. But if potential applicants don’t have confidence in the appointment system it will deter them from applying in the first place.


This week the government published a consultation exploring ways of increasing diversity within the ranks of the judiciary. We have worked closely with them to develop this. And earlier this year, the Law Society launched a training programme to assist solicitors to apply for judicial posts.


The Law Society strongly supports the Government’s plans to establish an independent Judicial Appointments Commission. It is also high time that the QC system was reformed. We are at present in discussions with the Department for Constitutional Affairs, the Bar Council, and the legal professions in Northern Ireland, about a new system of accreditation to replace the old QC scheme. We hope to reach agreement on what the new scheme will look like by the end of this year.


We’re working hard to achieve this but make no mistake, we will not sign up to a scheme that does not eradicate the flaws of the old QC selection system. The new accreditation scheme must be objective, it must be transparent and above all, in time it must be opened up to all areas of practice – not just advocacy.


And if that means we are not ready by the end of the year – then so be it. We will not sacrifice a high quality scheme to achieve an arbitrary deadline.


The Law Society supports the recent proposal by the Lord Chief Justice and the Master of the Rolls to create a unified civil court.


We believe it will cut costs, reduce delays and enable much needed maintenance and modernisation to be carried out. A single set of rules and procedures will remove the need for training in two systems.


A note of caution though – any plans must preserve the quality of our judges and the specialist courts. Proposals such as these are all part of the ongoing future of the law and the legal profession.


Modernisation at times though can be tricky. There is, for example, the thorny question of referral fees. The Law Society Council decided last year to amend the introduction and referral code following a lengthy period of intense debate spanning a number of years. We did so because the old rule was unclear – there were too many exceptions and it was hard to enforce. But, most of all, because it did not provide for complete transparency and disclosure of referral arrangements to our clients.


We will review the working of the new code by April next year, as we pledged to do. If it is not working then we will look to address any difficulties. But the Law Society cannot ignore the fact that the decision taken by the council was made in the public interest. The code has been amended to ensure that the solicitor’s professional judgement, independence and ability to act in the best interests of the client remain paramount in any referral arrangements.


If the new code is not working for the public then that is when we will act. Any changes we make have to be based on hard evidence, not on emotion.


Human rights are fundamental to the liberty of our clients, to our democracy, to our security and to our economic prosperity. It is for these reasons that the work we do in relation to human rights is so vital.


Take for example the problems faced by those seeking asylum in the UK. We need an asylum system that is fair, properly controlled, consistent and humane – it is the responsibility of the government to deliver that.


The Asylum and Immigration Act was one of the most controversial pieces of legislation we have seen for some time. The proposal to oust judicial review was outrageous. Such a move would have seriously undermined the rule of law, denying an individual’s fundamental legal rights. The Law Society fought hard against this proposal and it was eventually dropped.


When new legislation is proposed, wouldn’t it be sensible to ask what its purpose is and how this can be achieved as effectively as possible? And once a new measure has been implemented, doesn’t it make good sense to ask – is it working well? And if, over time, it’s obvious that new legislation isn’t working well or it’s having unexpected consequences, then shouldn’t it be amended or even abolished?


If only the government would take this approach in relation to the new money laundering regime. The Law Society will not ignore the growing uncertainty and concern being voiced by the profession and our clients about the impact of the Proceeds of Crime Act 2002 and the Money Laundering Regulations of 2003.


Solicitors have an important role to play in the fight against fraud and terrorism – but the current regime is too complex and onerous.


I want to see the government acknowledge that legal professional privilege should be cherished and not eroded further in the pursuit of grapeshot legislation. If that involves a legal challenge by the Law Society, or our intervention in a test case on the proportionality of the regime – then we will do just that.


And finally, I want to mention the extending reach of the Law Society’s work internationally. I have already mentioned the importance of our human rights work. The English and Welsh profession has a tremendous role to play in the developing economies of India, China, Brazil and many other countries. We will continue to lobby for practice rights for English and Welsh firms around the world.


I hope that I have left you in no doubt of the strength of my commitment. My commitment to ensuring that collectively we provide our clients with the very best service. And my commitment to the modernisation of legal services and to leading our profession in to the 21st century.



This is an edited version of the speech given by Law Society President Edward Nally. A full version can be found on the Law Society’s Web site at: www.lawsociety.org.uk