Over the past 40 years, lawyers have come under the glare of a raft of reviews. Grania Langdon-down recounts how the legal profession arrived at sir David Clementi’s report

The legal profession has been waiting on tenterhooks to see whether the Clementi review – triggered by competition pressures, by concerns over the handling of complaints and by the demands of modernisation – will lead to fundamental changes in its regulation and structure.


But this is not the first time the profession has come under the microscope. Over the past 40 or so years, reviews and legislation have come at regular intervals.

Prior to the Competition Act 1998, UK professions were subject only to the monopoly provisions of UK and European competition law. After the National Prices and Incomes Board produced three reports on the legal profession in the 1960s, the then Monopolies and Mergers Commission (MMC) conducted a major review of the professions in 1970, producing a report that triggered a series of reports by the MMC on lawyers.

Then in 1974 came the Solicitors Act, which laid the statutory basis for the regulation of solicitors by the Law Society and gave solicitors a monopoly over litigation and other reserved activities.


In 1979, the Royal Commission on Legal Services, chaired by Sir Henry (later Lord) Benson, an accountant like Sir David, finally reported after a three-year inquiry costing more than £1 million. It largely focused on whether there should be fusion between solicitors and barristers, unanimously recommending that the profession should remain divided, with the bar retaining its monopoly over advocacy in higher courts and solicitors over litigation. The commission had a wide remit, but despite an 800-page report, it did not recommend any radical changes.


Martin Bowley QC, who spent 40 years at the bar before retiring in 2002, has written about the commission and subsequent reviews in his autobiography.


Farrand: breaking monopoly

He says Benson provided the bar with ‘a unique opportunity to drag itself into the 20th century’. However, it comprehensively failed to take it, and a working party set up to consider the recommendations achieved nothing, he recalls.

In 1984/85, solicitor Julian Farrand chaired a committee on conveyancing that led to the Administration of Justice Act 1985 and the end of solicitors’ monopoly on the provision of conveyancing services.


Mr Farrand, a conveyancing specialist, was professor of law at Manchester University for 16 years before becoming a law commissioner from 1984 to 1988. He contends the committee was never expected to reach agreement. ‘My own objective was to achieve that within the 18-month deadline. I had been dean of a law faculty, so chairing this body which was meant to be unruly was a piece of cake.


‘We produced two reports – one about breaking the so-called solicitors’ monopoly and the other recommending conveyancing reform. The compromise solution was to create a new profession of licensed conveyancers for those who didn’t want to qualify as solicitors so they could choose that route and still get some qualifications.


‘My dream result would have been to make conveyancing simple enough for people to do it for themselves, but that was never on the cards.’


In 1986, the Law Society and the Bar Council set up the Marre Committee, under Lady Marre, which looked at competition, consumer protection, self-regulation, access to legal services, legal education, rights of audience and the structure of the profession, including multi-disciplinary partnerships (in which the MMC had seen potential 15 years before). Its 1988 report recommended extending rights of audience to solicitors in the Crown Court – which prompted a note of dissent from six members of the committee. It also recommended that professions other than solicitors be permitted direct access to the bar, that solicitors should be eligible for appointment as High Court judges, and that training should continue after qualification.


The committee acknowledged that it was set up less than ten years after the Benson Commission. However, with echoes of Clementi, it said one of the main reasons was government pressure to see market forces operating freely in the legal profession, with an emphasis on dismantling restrictions traditionally held as essential to safeguard professional conduct and competence. It warned then that if the profession did not initiate change, then change would be forced upon it.


Mr Bowley sat on the committee. He does not remember it fondly. ‘One thing I regret about 1987 is the time I spent on the committee, which had been set up… in an attempt to settle areas of dispute between the bar and the Law Society. The committee was a classic fudge of the great and the good, the pompous and the incompetent. On the only issue of substance – rights of audience – it failed to achieve unanimity. The report was filled with lengthy generalisations and bland recommendations. It achieved nothing. It is now totally forgotten and rightly so.’


Ronnie Fox, senior partner of City firm Fox Williams, is less damning. He chaired the working party that presented evidence to the committee on behalf of the City of London Law Society. He says: ‘Someone described the committee as an opportunity for the profession to sort itself out and for the Law Society to relax restrictions which were seen not to be protecting the public but to be protecting lawyers and, to a great extent, that was done. The Law Society did change quite dramatically the way in which solicitors could market themselves and the way in which they had to keep themselves up to date.’


The Marre report was followed in 1989 by three Green Papers proposing the extension of advocacy rights and direct access. The subsequent White Papers were less radical, after opposition by the judiciary and the profession. The Courts and Legal Services Act 1990 ended the bar’s monopoly over advocacy in higher courts and solicitors monopoly over litigation.


In 1998, the White Paper ‘Modernising Justice’ led to the Access to Justice Act 1999, which gave all barristers and solicitors full rights of audience, as well as opening up the use of conditional fee agreements. It also put restrictions on the Law Society’s ability to use funds from the practising certificate fee for non-regulatory matters after the Society ran a campaign warning that the Act would lead to ‘Justice Denied’.


The following year, it was announced in the pre-Budget review that the Office of Fair Trading (OFT) would review restrictions on competition in the legal, accountancy and architects’ professions. Its brief was to consider whether the rationale behind restrictions – on entry to the profession, members’ conduct and demarcation of services – was really protecting the consumer from exploitation.



The OFT’s 2001 Competition in the Professions report was concerned that because the professions regulated themselves, there were no guarantees that restrictions were kept to the minimum necessary. Similar concerns also prompted the European Commission to begin its ongoing investigation into competition in a range of professions, including lawyers.



The issues raised by the OFT report led the then Lord Chancellor’s Department to issue its consultation paper, In The Public Interest?, in 2002. In its conclusions after the consultation, the newly formed Department for Constitutional Affairs decided to establish the Clementi review.



The Lord Chancellor, Lord Falconer, said: ‘The legal services regulatory system is complex and fragmented. There is a wide range of regulators with overlapping powers and responsibilities. This lacks transparency and is confusing to the public and therefore seems not to be very accountable. We need to establish whether or not the system meets the demands of a modern, changing legal services market.’


Tina Williams, a partner at Fox Williams, chaired the Association of Partnership Practitioners’ Clementi working party. ‘It has been a very interesting time between Marre and Clementi. There has been a huge matrix of commercial and regulatory pressure both at a national government and a European level – particularly with the European Commission’s drive for competition and the opening up of markets. There are no sacred cows any more.’


For former Law Society President Michael Napier, Clementi was triggered by a combination of factors – including modernisation and competition issues. ‘Add to that the adverse publicity about the handling of complaints against solicitors and the current government’s focus on both regulation and deregulation and whether a professional body can have both a regulatory and a representational role, and you can see Clementi was inevitable.’


But he questions how far the profession needed to be pushed into change. ‘The Law Society didn’t need any outside pressure to overhaul complaints handling. We knew things had gone badly wrong and we have reduced the backlog substantially. We also made a policy statement that we were in favour of MDPs [multi disciplinary partnerships]. In some respects we were ahead of Clementi, which is why the Society has been able to contribute positively to the debate rather than have to be dragged kicking and screaming to the table.’


Professor Avrom Sherr, director of the Institute of Advanced Legal Studies, says the pressure for modernisation has meant all professions have had to reassess their position in society. But he is rather more critical of the legal sector’s ‘infinite capacity to shoot itself in the foot’.


He adds: ‘I would say the Law Society is probably at fault in that it always seems to be resisting change until it finds itself with its back against the wall and is then forced to do things which if it had decided to do itself would have been easier to control. The interesting aspect of Clementi is that the competition issue gave it a way in that prevented the usual parrying of change. By coming at the issues from a slightly different angle, it managed to get underneath the profession’s defences and this is why it looks like having a more lasting effect.’


Grania Langdon-Down is a freelance journalist