There are serious problems affecting the delivery of legal services in England and Wales. The litany I am about to recite is well known.
The court structure is crumbling, and Twitter buzzes regularly with reports from lawyers about the impact on both themselves and their clients. There have been such serious cuts to legal aid that many clients are going unrepresented, and unrepresented litigants are slowing down the courts. Solicitors and barristers are finding it harder daily to make legal aid pay, and indeed to survive economically in the profession, and criminal barristers have been on strike for weeks. Morale among the judiciary is reportedly very low.
At the same time, trust in lawyers is taking a knock. The government and other decision-makers regularly assault the core values, with public scandals around tax avoidance and more recently non-disclosure agreements helping them to undermine lawyers’ arguments in favour of the core values. There is a growing threat to the quality of legal services, and the consumer rights of clients, from the unregulated sector.
It is at this time of crisis that the Legal Services Board (LSB) has chosen to act in a most important field: the detail of the Law Society’s regulations regarding the relationship between the SRA and the Law Society between 2014 and 2017, in areas like the design and management of appointments to the SRA boards.
The LSB, having studied the problem in suitable depth, now agrees that whatever problems existed before 2017 in such areas were sorted out in 2017. It also agrees that whatever might have been wrong with the detail of the Law Society’s regulations before 2017, ‘we did not find that the SRA’s independent performance of its regulatory functions was impaired’, nor that any solicitor or client had been adversely affected. There had only been ‘the potential for the SRA’s independence to be impaired if the risks related to certain provisions were to crystallise’. But the risks never crystallised.
Yet the LSB still felt the need – at this time of grave crisis in legal services – to issue a public censure to the Law Society. This makes absolutely no contribution to the problems we face.
Indeed, the LSB does not intend to stop there. There is an ongoing review of the rules governing the relationship between the Law Society and the SRA (called the Internal Governance Rules or IGR), and the LSB told the world last week that ‘there is now an opportunity to provide us with further input on the IGR in light of the LSB investigation report. The LSB should receive any such input by 10am on 18 June 2018.’
Now I fully realise that the LSB’s mandate is limited, and that it is has no power to intervene in matters like the court estate or the morale of the judiciary. But timing is everything.
In addition, the LSB has very important statutory regulatory objectives to fulfil like ‘improving access to justice’ and ‘promoting and maintaining adherence to the professional principles’ (which is one to which it attaches no importance at all on the evidence of its activities). We have seen from the litany of troubles above that both access to justice and the professional principles are under tremendous attack. It could take action towards these objectives.
Yet it is at this time that the LSB chose to spend more than a year of its limited public resources to investigate the detail of the Law Society’s regulations in areas such as the design and management of appointments to the SRA boards between 2014 and 2017.
If we lived in a perfect paradise of affordable legal services, gleaming courts and a well-behaved government, the LSB might be justified in spending so much time and money examining the minutiae of the Law Society’s regulations on areas like board appointments. But it seems laughable now, made worse by the fact that the LSB persisted in issuing a public censure over something which it agrees was resolved through willing cooperation from the beginning from the Law Society.
It has as a consequence allowed public resources to be wasted in the energy-sapping and endless turf war between the Law Society and the SRA.
If you look at the list of recent LSB press releases, practically none addresses the real crisis facing legal services in England and Wales. The list gives the impression that the LSB is unable to escape from its own bureaucratic procedures.
Its stated goal is ‘to reform and modernise the legal services market place by putting the interests of consumers at the heart of the system’ (not the public interest you note, despite this being the first of the listed regulatory objectives). Even by its own standards, it is difficult to see how last week’s public censure advanced matters an inch.