Can we trust the LSB to comment on the rule of law?

The Legal Services Board is consulting on its future areas of work through a draft 2022-2023 business plan. Solicitors may be sceptical about what benefit its budget of over £4 million actually produces, but we are bound nevertheless to pay attention to its proposals.

The future will hold some of the same – for instance, it will continue its work on the ongoing competence of the profession. But some areas will be new. So it aims now to focus on the professional indemnity insurance (PII) market, to identify factors behind the current hardening of that market, and to find possible solutions.

The challenges in relation to affordable PII, and the accompanying problem of regulators finding it more difficult to secure adequate insurance-backed compensation fund arrangements, are serious matters. But, since the insurance market is cyclical, going from hard to soft and back again repeatedly over time, the work should surely not be focused on solutions for the present hard market – but rather take a comprehensive look at all phases of the cycle.

There is also a section on disciplinary and enforcement processes. The LSB wants to ensure, among other things, that there is professional confidence in regulators’ processes and outcomes. This is a little difficult to swallow in view of the fact that the LSB has just given the SRA a clean bill of health for the second year in a row, despite scandalous reports regarding the SRA’s costs in disciplinary cases against solicitors. Does the LSB really expect the profession to have confidence in its proposals, when the LSB itself has so regularly patted the SRA on the head despite these cases?

However, the aspect of the LSB’s proposed future work which really caught my eye is its concern for the rule of law. It reminds us – really it is reminding itself – that supporting the constitutional principle of the rule of law is one of the regulatory objectives in the Legal Services Act 2007, which is fundamental to the role of legal professionals in society. At last!

It also tells us that it is concerned about the increasing public criticism of legal professionals while discharging their professional duties. Well, better late than never, I say.

However, there is a snag in their concern. If the increasing public criticism of members of our profession came from any direction but the government, this problem would not arise. But unfortunately, as we know, the principal criticisms of lawyers these days comes from the government itself – for instance, from the home secretary and the prime minister. Do we need to rehearse the slurs about lawyers frustrating the immigration system, and indeed criminal justice altogether? Just this weekend in her New Year message, the home secretary was at it again, referring to ‘the legal merry-go-round of spurious asylum claims’.

As was pointed out loudly when the LSB was established, it is an important principle that the regulation of lawyers should be independent from the government. But this line was pooh-poohed as unimportant. Of course, no-one foresaw today’s government, with its disregard for longstanding rules protecting lawyers.

And the LSB is dependent on government patronage. Its chair and members are appointed by the lord chancellor, who has also been in the news recently because of his alleged sensitivity to criticism when he himself attacked lawyers.

Do we really expect the LSB to go hammer and tongs after the government which appoints it? Terms of office for LSB members last for up to five years, with the prospect of a second fixed term after that. If ever there was a conflict of interest, this is one, with several members still in their first term. Of course, the LSB does not point this out in its business plan. It is only we solicitors who have conflicts of interest, and cannot be trusted to regulate ourselves, not members of the LSB.

There is therefore a danger that, if the LSB does enter this arena, it will pull its punches because it does not want to endanger its own interests. Then it may be better if it does not enter at all, since it may only harm the cause of the legal profession by downplaying the gravity of the government’s actions.

The LSB is careful to say that it will focus on the role of regulation. This is presumably why it has never pointed out damage to the rule of law (right to a fair trial, for instance) by the government’s failures in legal aid.

But the government’s current criticisms do relate to regulatory principles, like our independence, which underpins the rule of law. It would be wonderful if the LSB came out fighting for us. But, looking at its recent record with the SRA, will it just pat the government on the head?

Jonathan Goldsmith is Law Society Council member for EU and international matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and are not made in his capacity as a  Law Society Council member, nor on behalf of the Law Society