We are at last seeing through the fog some details of the kind of justice sector which might emerge once our lockdown ends.
Both the Law Society and the Bar Council published research over the last week about the impact of the lockdown on their respective professions, and the results were equally depressing.
The Law Society research covered both small and large firms.
The larger law firm study was based on the responses of 84 firms out of 250 consulted in March 2020. Because the financial aspect of the lockdown had not yet started to bite, there is less information on the this, and more on how practice areas were being affected.
But it is not hard to find evidence of the severity of the economic consequences of our present circumstances. Through Law Society committee work, I have been in touch over the last week with solicitors from medium-sized firms, and they have spoken of furloughs of large portions of their staff, pay-cuts for the rest, and a reduction in drawings for the partners. As we know, some areas like conveyancing have dried up altogether, and the income from court work is reduced.
The Bar Council’s research showed that a typical barrister has gone from working over 50 hours a week to fewer than 18. 31% of criminal barristers will not be able to continue to practise within three months, and 53% of all self-employed barristers cannot survive six months. As with so many areas of this crisis, the financial impact is greater on barristers from BAME or state school backgrounds.
It is clear that none of the current restrictions are going to disappear overnight. It looks more likely that they will last for months, with the consequent destruction of many previously healthy legal providers. The severe threat to access to justice is clear, as well as to the income levels and size of our profession.
But the equally interesting development from the last week related to the future of lawyer regulation. We know that, under the cover of Covid-19, many decision-makers or opinion-formers have been advancing their own agendas. The most egregious has been the power grab by the Hungarian government which has now granted itself the (doubtless long desired) right to rule by decree. But other disputed areas have come under similar attack - like why bother about climate change any more when the economy is so desperately in need of rescue, or why bother with social mobility issues, either?
So it should not come as a surprise that the Legal Services Board has advanced possible changes to the reserved activities, which has long been on its agenda (for a definition of reserved activities, see Section 12 (1) of the Legal Services Act 2007). This came by way of its reflection on the impact of the pandemic on legal services.
After its last board meeting at the end of April, its chair noted ‘that in a post-crisis world, there may well be a pressing case to make changes to the ‘reserved activities’ described in the Act to better meet public need’.
This sounds ominous. When UK regulators, following the god of innovation, mention changes to the reserved activities, they usually mean reducing them from their current number of 6, or abolishing them altogether, particularly when ‘public need’ is mentioned in the same sentence.
Interestingly, the paper which went to the LSB Board on this topic mentioned only section 24 of the Legal Services Act 2007, which is about recommending additions to the current list of reserved activities. It was raised in a discussion of how ‘to assist in recovery of the sector’. If so, that would mean adding to the reserved activities, which many solicitors would consider as desirable. Will-writing anyone?
But we must not forget that there is also section 26 of the Act, which permits the board to recommend to the Lord Chancellor that certain activities should cease to be reserved legal activities. There is presumably nothing to stop the LSB recommending changes under both sections at the same time, which would mean a thorough shake-up of the principles supporting the practice of law.
These developments form the beginning of our understanding that, when permitted by the government to leave our houses in due course, the world will not look the same. Ours will be a poorer, smaller profession, with consequently fewer resources to pay for our regulation and representation. And we will be subject to different regulation, too, if the LSB has its way. Let us hope that it will at least be better regulation.
Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe
All views expressed are personal and do not necessarily reflect the views of the Law Society Council