The days of a ‘quiet August’ are a thing of the past. The change of government has ensured that Whitehall has remained a hive of activity over the summer – and here at the Law Society we have been far busier than anticipated.

As you will have seen, for me and the Law Society much of this has involved pressing for the Legal Services Commission to take action, so that we can work together to put right the outcome of the family legal aid tender round.

Last Friday, having exhausted all other options, we were left with no choice but to issue formal proceedings against the LSC. This is, of course, not a position that we arrived at lightly. But in the public interest we had to act.

Left unchecked, the tender round would result in gaps in the geographical availability of services, leading to conflict-of-interest issues. It would lead to the removal of vital services to particularly vulnerable groups, such as victims of domestic violence. It would also mean many clients having to find a new lawyer in the middle of their case, causing significant disruption to the family justice system and potential harm to the children caught up in those cases.

By our action, we are seeking a declaration that the LSC has behaved unlawfully on three grounds: that there was an unreasonable and unfair application of the caseworker accreditation criterion; that it breached its equality duty and failed to conduct an appropriate impact assessment; and that it failed to comply with its statutory duty to secure access to justice.

At the root of the problem is the fact that the LSC did not consider how many existing providers would satisfy the accreditation criterion. Indeed, its impact assessment was carried out before it had decided on all the criteria to be used for assessing bids.

Back in October 2008, the LSC made an assumption that 87% of existing public family providers and 71% of private family tenders would comply with the tender criteria and then, in June 2009, it estimated that most providers should be able to comply. Accordingly, it made no assessment of the effect on women, or indeed on other groups needing access to justice, if there was a dramatic drop in the number of providers.

We believe that steps can be taken to resolve the situation but that will require the cooperation of the LSC. We will invite the court to make a declaration that the LSC has acted unlawfully and then to adjourn for a short period, so that we may work with the LSC to find a solution to the problems that now threaten the family justice system. It is essential that the current contracts are extended for a period of three months so that we can ensure that families can be protected from the instability that the tendering process has caused.

Unintended consequencesIf there is one lesson that the family legal tender round has brought home, it is the need to guard against unintended consequences when making fundamental changes to the way the legal profession operates in this country. Indeed, in the Gazette last month, the LSC’s Carolyn Downs admitted that the dramatic cull in family law suppliers was not the intended outcome of the tendering round.

The importance of anticipating and legislating for the unintended was a point that the Law Society made strongly in its recent response to the consultation on The Architecture of Change, the SRA’s new handbook, which will guide its transition to outcomes-focused regulation (OFR). While we recognise that OFR has the potential to be an antidote to over-prescriptive regulation, the current timescales for implementation are very tight to enable the Solicitors Regulation Authority to be sure that the proposed system will be effective and fit for purpose. The changes are substantial and, if they are imperfectly designed or clumsily implemented, unintended consequences loom large.

Nor does the lack of time that the SRA has allowed itself augur well for driving through the necessary organisational culture change, a vital precursor to successfully implementing OFR. If that does not take place before the changes come into effect, solicitors face the potentially lethal mix of a set of regulations created in the spirit of autonomy and trust, overseen by a workforce still geared towards the previous approach to enforcement.

The promised culture change at the SRA has long been awaited by the profession and by stakeholders, including mortgage lenders and insurers. We look forward to this being delivered ahead of the introduction of OFR.

PII renewals periodThe professional indemnity insurance renewals period is well under way and is shaping up to be another challenging market. This is down to a range of factors which we will be analysing once the renewals period is over. Although many firms will renew without any problems, we are, of course, offering help to those who are experiencing difficulties, with our helpline acting as the first port of call.

Linda Lee is president of the Law Society