The build-up to the possible removal of our prime minister is, in my eyes, tedious in the extreme. I am not interested in the daily manoeuvring. But I recognise that the outcome may be significant for solicitors. Assuming that there is a change of prime minister in the coming weeks, what will change for us? Of course, it depends on whether the replacement is from the left or right, but there are signature policies which may be ditched.
First, the proposed removal of the right to a jury in a substantial number of criminal cases is unpopular more or less across the board and may not survive. There is growing evidence that it will not achieve what it sets out to do, namely, reduce the appalling backlogs. So why keep it?
Second, the Ministry of Justice proposal to take the interest on lawyers’ client accounts to use for its own general purposes has also provoked a strongly negative reaction, and not only from the profession. Given that the impact on small and medium-sized firms is likely to increase legal aid and lawyer deserts, why persist? (If it is continued, presumably it will at least be in a different form, so that the funds are earmarked for specific access-to-justice projects, instead of going into the MoJ’s general funding.)
A more interesting question is whether strategic litigation against public participation (SLAPPs) legislation, which appears to have been kicked into the long grass by the current government, will reappear with more urgency. As an area of law, it is a minority interest, rarely encountered by most solicitors. But it is a powerful weapon to hammer our reputation, so we should pay attention.
The government laid out its SLAPP plans in its Anti-Corruption Strategy, published in December. It said that, when informed by wider evidence, it will consider the future approach for comprehensively tackling all SLAPPs by 2029. (There are already anti-SLAPP measures when connected to economic crime.)
There was a long article in the New Statesman last week urging quicker action. It was titled The Slapp trap – As media lawyers battle to keep Britain’s libel industry lucrative, hopes for reform are fading (the title shows how it affects all our reputations).
The article’s thesis is that the government’s enthusiasm for dealing with all SLAPPs was stopped in its tracks by a powerful lobby of ‘leading London libel lawyers whose members have in the past represented Russian oligarchs, the disgraced Tory peer Michelle Mone, and even Jeffrey Epstein’.
SLAPPs is one of those areas on which there are always two sides – claimant against defendant, Article 8 of the European Convention on Human Rights (right to reputation) against Article 10 (right to free expression). The Law Society represents both sides of debate; the Solicitors Regulation Authority has tried to sanction libel lawyers whom it felt had wandered into SLAPP territory, but has had its fingers burned.
The question is whether a change in prime minister will increase the urgency in dealing with SLAPPs beyond economic crime.
The government’s Anti-Corruption Strategy also mentions lawyers in another capacity: the question of our contribution to what our critics call the professional enablement of wrongdoers. It was as part of this drive that the announcement was made some months ago that responsibility for our anti-money laundering supervision is to be transferred to the Financial Conduct Authority. There are rumours that there will soon be more complaints from an international institution about lawyers hiding behind legal professional privilege to enable corruption. Will a renewed government take further measures?
Finally, I would like to address the candidates to be our next prime minister (including the current post-holder) with one of my own pet concerns. The courts, and those who appear before them, are highly regulated. But the statistics show that more and more disputes of higher and higher value are being settled outside our court system, through international arbitration.
London is a great centre for this, which contributes to the wellbeing of our economy, and is to be warmly welcomed. But it means that more and more cases are being transferred to a system which is patchily regulated, often only partially regulated, reducing the value of our court regulation system.
I know that international arbitration is a successful and complex area, but there are dangers in its lack of overall supervision: conflicting ethical codes; ineffective sanctions against wrongdoing by its participants; and a lack of transparency in its operations.
Whatever changes in any area, I suspect the French cynic will be proved correct, though: ‘Plus ça change …’
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. 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
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