Facing the future

The profession should continue to adapt to 21st century realities, and provide a united voice for change where change is needed, says Kevin Martin in his speech to the annual Law Society conference in London earlier this week

We are living in age of economic, demographic and political turmoil. All of us, in one way or another, have experienced the harsh realities of the 21st century – terrorism, oppression, abuse and corruption.


Here in London we have recently witnessed tragedy on a scale I doubt any of us could have ever imagined. And, in the wake of that dreadful atrocity all of us have had a painful reminder of the uncertainty that we face in so many aspects of our lives. But that does not mean we cannot look to the future with optimism and with confidence.


As lawyers, we have an important role to play in all of this. We must continue to demonstrate our commitment to justice, to the liberty of the individual and to protecting and strengthening the rule of law. It is up to us to make the right choices, as individuals, as businesses, as members – and leaders – of the legal profession.


The profession has a history that has evolved over hundreds of years. In that time it has come up against – and surmounted – innumerable challenges as the world around it has transformed. This autumn, we expect a White Paper from the government. It will give us more detail about how the government intends to implement the recommendations of Sir David Clementi, about the way in which we will be regulated in future and the way in which legal disciplinary practices might work. That future is one of a legal profession fit for the 21st century. One able to deliver quality services to meet the needs of all consumers in ways that match their expectations.


The Law Society has embarked on a programme that will dramatically change how it looks and how it functions. As president, I am charged with the task of turning that vision into a reality over the coming year. From 1 January 2006, the Law Society’s regulatory functions will be overseen by the new regulation board and the new consumer complaints board. They are being appointed independently and will have a substantial proportion of lay members. They will oversee the day-to-day running of regulation and our complaints-handling. They will also settle the strategy and high-level policy in these areas, except on those issues where the council must, for legal reasons, retain the decision making function, such as rule making.


To command public confidence, professional regulation must be highly transparent and accountable. A regulator must be able to demonstrate that all of its decisions are made clearly and unambiguously in the public interest. The Law Society had already started on this path long before the Clementi Review. We were right in taking this initiative because with the advent of the Clementi review, they have become imperatives if we want to retain professional involvement in regulation.


The Lord Chancellor has made it clear that if we, the Bar Council and other front-line regulators are to retain our powers, we will have to separate our regulatory functions from our representative functions.


We will negotiate hard with the government on the detail of the Regulation of Legal Services Bill. We will want it to be absolutely clear that primary responsibility for regulation rests with the professional bodies, subject to proper separation of regulation from representation. We will want to see a legal services board that is an effective but light-touch oversight body. We will want to see a workable framework for the regulation of legal disciplinary practices, one that safeguards important values for clients, such as privilege, client confidentiality, and the avoidance of conflicts.


There has been much criticism of our complaints-handling; a lot of this has been backward looking. Actually there have been huge improvements. During my time as chairman of the the compliance board, the Law Society invested over £30 million in improving systems and processes.


During the past year, the Consumer Complaints Service has closed over 1,000 more cases than it received; and we are dealing with more than half of complaints within three months, and just over 70% within six months. The Legal Service’s Ombudsman quality rating is 66% of the 7% of cases referred to her. That means she is dissatisfied in less that 3% of the total caseload, a performance that compares well with other professional bodies.


The Law Society is committed to supporting the new office of legal complaints. I hope it will choose to retain the expertise we have acquired and to build on the investment we have made. If this does not happen, we risk derailing the excellent progress already made, an outcome that would not be in the public interest. And we will want to be sure that the overall framework for regulation preserves the profession’s independence from government and the right kind of professional involvement in regulation. So the stakes are high, but the Law Society’s record so far in defending the right to profession-led regulation is strong and successful.


These changes have given us a choice about the future of the Law Society's representation work and a unique opportunity to reshape it. The representation arm has a vital job to do – to be the professional partner of solicitors, their strong voice and their champion. And what of those who say the profession is too diverse and complex to have only one main professional body? I simply say: whatever the range of the profession, there will always be common ground between us. At the very heart, we all share the same core values: independence, integrity, confidentiality. The clients’ interests always come first.


It is inconceivable that a profession as vibrant and strong as ours would not have an equally strong national body to represent its interests, to promote its values and to provide it with sound leadership. As the nature and framework of regulation changes, the representation arm of the Law Society will have to position itself at the forefront of this new legal landscape. The new Law Society will be the voice of the profession, engaging, representing and communicating the views of solicitors to its regulators, to the government and to the public. It will need to be highly visible, credible and influential.


As the primary professional consultee of the regulator, the new Law Society will want to ensure that the regulator is setting and enforcing standards within the profession. If the regulators are not doing their job properly, the Law Society will hold them to account. Over the next year, the council will be consulting members widely on new ways of delivering our representation work – more closely shaped to their needs and expectations. The first step, which has just begun, is to test the market for the services we might offer to solicitors in the future, a process which is likely to run until the end of the year.


With the benefit of this knowledge, and the content of the White Paper, we will consult all members of the profession in 2006. We will be asking: what are the most important services that you want from the Law Society? What can the Law Society deliver to you? None of us can afford to be spectators in all of this. We all have our part to play.


Equal access to justice for all is the principle on which the legal aid system was built back in 1949. So why are people in many parts of England and Wales struggling to find a legal aid solicitor within a reasonable distance from their home? Why are some of the most vulnerable members of society without any legal help and assistance in times of need and of crisis? Why is it that solicitors who commit themselves to legal aid work constantly struggle with poor pay and bureaucracy?


Since I took office two months ago I have highlighted on numerous occasions the parlous state of the legal aid system and the insultingly low pay of practitioners. How does the government expect to provide real access to justice, if the working conditions of the practitioners on whom the delivery of legal aid is dependent are so appalling?


Yes, there have been initiatives, draft strategies, pilots, reviews, etcetera. But we are left wondering whether the government or Legal Services Commission have any real vision in relation to legal aid. Why do we get the worrying feeling that their only guiding principle is how to keep the budget capped at £2 billion?


We need to take a new approach to legal aid. A radical approach. Real investment, properly targeted, could make a big difference. We have to put an end to the hand-to-mouth, penny-pinching approach. In the context of the government spending review for 2008 to 2011, I have made it clear to the Chancellor of the Exchequer that funding for legal aid needs to be properly planned in the government’s overall objectives.


Within the cash-limited legal aid budget, civil legal aid is constantly being eroded by the demand-led criminal legal aid budget. It makes absolutely no sense at all for criminal legal aid – essential to underpin a fair criminal process – to be managed as part of the same fixed pot as civil legal aid. And why is criminal legal expenditure spiralling out of control? It is certainly not because the money is going to pay the lawyers. The reason is the government persists in introducing criminal offences with little or no assessment of the impact that they will have on the demand for criminal legal aid.


And now the government makes seriously flawed proposals for price-competitive tendering in London – an extreme case of twisting the knife in the wound and frankly an insult to hard-pressed practitioners. This is not to mention the likely disproportionate consequences for solicitors from ethnic minorities.


We accept that it makes sense to create more resources for civil legal aid by tackling waste in the criminal justice system. We endorse the government’s aim of redistributing legal aid money saved on very high-cost criminal cases through better and more effective case management. But the latest package of short-term cuts is too hasty and ill thought-out.


We need to see more young solicitors choosing legal aid as a career. Students and trainees are undoubtedly attracted to the ideals of a career in social welfare law, but their enthusiasm is soon dampened by concerns about debt, job security and the poor public perception of legal aid lawyers. And who can blame them? My fervent hope is that the review by Lord Carter of legal aid procurement will be the opportunity we have all been waiting for to get this right.


We believe that all individuals are entitled to be treated with respect and dignity, and have the right to be heard. It is our duty as solicitors to ensure that these rights are safeguarded. It is our job to be the voice of those who fear that their human rights are threatened or are being violated.


In the current climate, there is plenty to keep us busy. The Law Society undertakes a vast amount of work all over the world in relation to human rights issues. We have campaigned against the death penalty imposed in breach of international standards, and intervened on behalf of lawyers in other countries who are threatened, tortured or unfairly imprisoned because of their legal work. But our work to protect human rights not only occurs on an international scale. Here in the UK, our own citizens are having their rights and liberties eroded. Legal aid is one such area but there are many more. Some of the new legislation proposed by government in the Queen’s Speech has caused us concern, especially in relation to identity cards, mental health and anti-terrorism.


The Law Society has been instrumental in persuading the government to back down on the more controversial aspects of the Prevention of Terrorism Bill, now Act – in particular, to accept that the most serious type of control orders must be made by judges rather than the secretary of state. Our campaign to safeguard the right to trial by jury has broadened and intensified following the government’s announcement in May that it would revive proposals to dispense with jury trials for some lengthy fraud cases. It is time the government acted as if it were proud of introducing the Human Rights Act instead of constantly legislating in conflict with it.


Individuals have the right to be treated equally and fairly, in all areas of their lives. As a profession, we have a responsibility to our clients – and to each other – to ensure we eliminate discrimination and promote good practice in our work. This is particularly true now as we face a number of new legislative obligations and we see, more and more, the diversity of society being reflected both in our profession and in our client base. There is still too great a pay gap – and opportunities gap – for women and people from minority ethnic backgrounds who enter the profession, even though they are participating in the profession in rapidly growing numbers.


The Law Society is very active on equality and diversity issues, and in the last few years we have undertaken a number of important initiatives, including the diversity access scheme, and the Race Equality Awards.


I’m pleased that many solicitors have already discovered the dual benefit of promoting equality. On one hand, it brings real and tangible benefits to the business: improving staff retention, offering access to new markets and providing high standards of service. On the other hand, it reflects how an individual practice and the profession as a whole demonstrates a commitment to fair play, respect and equal treatment. Our aim now is to encourage more firms to adopt and progress equality and diversity policies.


Turning to pro bono work, the fact is that without it, there are individuals who would not otherwise be able to obtain legal advice because of the current crisis in legal aid. But that does not mean that one is a substitute for the other.


The Law Society demonstrates its commitment to pro bono work in a number of ways, most notably through its involvement in National Pro Bono Week but also more recently in the wake of the first London bombings, when we established a special helpline in conjunction with the Solicitors Pro Bono Group. To date, over 40 firms and individual solicitors offered their services. We have dealt with over 100 requests for assistance, and from each request several more cases evolved, concerning family members and friends of the original contact. I am extremely proud of the profession’s response.


The Law Society has also been active in relation to stamp duty land tax. It is now well over a year since it was hastily introduced by government and its impact has been disastrous for practitioners and for taxpayers alike. We launched a campaign in May and support has been overwhelming, with over 4,500 solicitors backing the campaign. And we are beginning to see results. Within the last few days, Revenue & Customs has agreed to make several changes to its systems which, if successful, will meet many of our central concerns. It has also indicated a willingness to work with us to address the outstanding issues. When the Law Society and solicitors stand united, the voice of the profession is difficult for government to ignore.


The Law Society is also taking a lead role in preparing for the advent of home information packs (HIPs) in 2007 and has set up a task force to ensure that the profession’s voice is heard as part of the debate. Putting aside doubts about whether they will actually bring the benefits that government claims for them, there are also concerns about the impact they could have on the conveyancing market. So it is vital there is an effective dry run and time for a full evaluation of the impact of HIPs before they are brought in to force.


The Law Society is doing everything in its power to ensure the system will be workable and solicitors will be at the forefront and equipped to be leading providers of HIPs.


This is why, despite our reservations about them, we have nonetheless engaged in detailed discussions with the Office for the Deputy Prime Minister about their contents and the regulations governing them. I want to emphasise that the regulations are not finalised. We do not know what will be prescribed as the content of the HIPs. Therefore, I would caution any firm of solicitors from buying into any IT package to prepare them on-line. The Law Society is currently working towards a solution that will enable solicitors to play a central role as providers of HIPs.


The civil courts are suffering from a serious case of underinvestment. Cost and complexity, the two issues that Lord Woolf wanted to address in his civil justice reforms six years ago, continue to be problems. It is time for the government to wake up to fact that self-funding is clearly not working and as a result the whole system is under immense pressure.


If our system is not being properly resourced, what message do we give to the public? What is needed now is a focused injection of funds from the government to provide essential resources. There must be a better and more joined-up use of technology. At the Royal Courts of Justice you will see expensive and extensive ducts for computer cabling – but they stand completely empty. Apparently, the money ran out for the cabling and the computers. How ridiculous is that?


The consequences of a failure to invest in the courts would be detrimental, not only to the justice system but also for the economy. This is particularly true of the Commercial Court in London. Its facilities are entirely unacceptable and there is deep concern that, as a result, parties may in future choose to litigate elsewhere. The knock-on effects of this for London might mean that fewer international firms choose to base themselves in the City.


This year we are immensely proud to host the Solicitors Annual Conference as part of the 50th anniversary Commonwealth Law Conference. We share a strong bond with our colleagues throughout the Commonwealth.


The Law Society continues to work diligently and effectively to promote the solicitors’ profession internationally and to open up practice rights for English and Welsh solicitors. We do this both by using multilateral trade talks to advance the interests of the profession and through bilateral negotiations with bar associations in other jurisdictions.


We will continue to ensure that World Trade Organisation negotiations reflect the interests of solicitors by gaining access to major markets that are currently closed, particularly India and Korea. We will also continue to work towards getting better access in other markets, such as China, Malaysia and Brazil, where our members have interests.


Our commitment to opening up practice rights for English and Welsh solicitors is not just a commercially driven concern. International competition and external influence can help to develop well-functioning justice systems as well as promote inward investment and economic development. Liberalisation does not only mean more fee-earning opportunities for English and Welsh solicitors, but an increased market for all lawyers, domestic and foreign.


I see a profession that is strong in its independence, in its vision and in its commitment to the values that unite it. It is a profession that needs a firm hand on the tiller to lead, to represent and to speak with confidence and with passion on behalf of its members. One voice, heard by all those it wants to influence, both here and across the globe. It is my extraordinary privilege to be that voice this year. I will strive not to let you down.


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