Fighting the good fight, if not always winning

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24 May 2012

Sound off for Justice spent some of its considerable budget on masks for demonstrations

Posted by Neil Rose, Editor, Legal Futures

The last week has seen both a victory and a defeat for lawyer lobbying, and perhaps the most fearsome legal lobbying machine – the Bar – crank into action.

The victory came in the surprise climbdown by HSBC over its restricted conveyancing panel. A global banking giant felled by a campaign spearheaded by the Law Society but with strong support from the likes of the Bold Group. It was pursued at a national level, with coverage in several national newspapers, and also at a local level, with solicitors talking to their estate agent contacts. All should take much credit, and particularly the oft-maligned denizens of Chancery Lane.

If I were to guess, based on some of the press coverage, I would say that HSBC backtracked not because of concerns over access to lawyers, but because estate agents were reportedly advising prospective buyers to steer away from seeking a mortgage from the bank.

It matters not – but while the society turns its attentions to other banks narrowing their legal panels, it will also have to prove that the Conveyancing Quality Scheme it touts as the answer to lenders’ concerns is truly robust. How stringent is the reaccreditation process? Are firms actually being kicked out for non-compliance? Lenders will want to know that it is not just a badge put on all existing conveyancers.

The Law Society and many others were significantly less successful in persuading the Solicitors Regulation Authority to maintain a that is above the level of the national minimum wage.

I remain torn by this issue. It is all too easy to make the case for the minimum salary, and in very emotive terms too – which is why several people have, especially over the one-time prospect of trainees being paid £2.80 an hour in their first year – but is it a matter with which a regulator should concern itself?

Let’s set it against the regulatory objectives in section 1 of the Legal Services Act 2007 that underpin regulation nowadays, especially that of “encouraging an independent, strong, diverse and effective legal profession” – with an emphasis on the “diverse” given the disproportionate impact scrapping the minimum is predicted to have on women and those from ethnic minorities. On that basis, it looks like SRA critics have a point.

However, if one looks to the Legal Services Board’s description of what the regulatory objectives mean, and specifically what “diverse” means in this context, it says this: “We consider that for public interest reasons and good business sense as much as for meeting this regulatory objective that the legal industry should reflect the population it serves.

“At entry, retention and progression we will support approved regulators in ensuring that there are no artificial barriers or discriminatory hurdles to legal careers caused by regulation. We will promote equality and diversity through our regulatory framework and we expect approved regulators to do the same.”

On this reading, perhaps the minimum salary does not fit as obviously with the regulatory objectives as it may look at first blush. Further, as several members of the SRA board said when it was debated last week, surely there are better ways of addressing diversity issues than wage control.

Finally we have the Criminal Bar Association possibly gearing itself up to strike over legal aid. You can understand why – arguably the worst place to be in a legal career right now is at the junior criminal Bar – and certainly the threat received a huge wave of media coverage last Friday. However, those contacting the BBC Radio 5live programme I was listening to were not overly sympathetic about barristers’ pay.

At the same time, the Bar is good at this – better than the Law Society, I would judge. If nothing else it has better access to the government than most through the many barristers knocking around Westminster. Indeed, the Attorney General and Solicitor General remain ex-officio members of the Bar Council and attend its meetings.

Though successive governments of recent years have whacked the Bar with as much gusto as they have gone for solicitors, you cannot help but feel the Bar has more pull – just witness the very rapid government climbdown last autumn when the criminal Bar was up in arms over Legal Services Commission plans to end special payment levels for QCs. Some kind of deal over legal aid is far more likely than the sight of barristers with placards demonstrating in front of the Old Bailey.

But where legal lobbying has, in the main, failed miserably is over what is now the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The Law Society ran Sound off for Justice campaign, a slick (well, relative to previous Law Society campaigns at least) and expensive (£300,000 plus) effort that sat alongside lobbying by other coalitions.

Readers will know that I have a particular interest in the Jackson reforms, and here I think the professional bodies and other campaign groups should acknowledge an even greater collective failure. While most had the same objectives, they could not form a common position until the Law Society, Association of Personal Injury Lawyers and Motor Accident Solicitors Society cobbled together a compromise far too late in the day.

Who can say what would have happened had a coherent and unified voice been heard all the way through the bill’s passage through Parliament? But certainly it couldn’t have gone much worse than it did.

The legal profession does not have the power it once did as a lobby, but as the HSBC climbdown proves, now and again it can still bare its claws if it gets its act together.


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2 Responses to “Fighting the good fight, if not always winning”

  1. Whilst the change of heart by HSBC can be seen as a positive step, as far as CQS is concerned, the proof of the pudding will be in the eating. Some Bold Legal Group members have expressed the following concerns:

    • Absolute compliance by CQS accredited firms is needed
    • Rigorous policing is required
    • Public examples should be made of firms continually breaching the CQS protocol
    • More lenders should embrace the CQS (that might now come with time)
    • Insurers should endorse the CQS
    • The CQS should be available to all conveyancing firms (Licensed Conveyancers included)

    Just because HSBC has agreed to increase its panel it does not mean that the lender panel issue has gone away. I receive emails daily raising concerns about most other lenders and their procedures and policies and as a pro-active group we will continue to lobby where necessary.

    The HSBC issue might be seen as a victory but we should not sit back and think the match is over. It isn’t, it has just begun.

  2. Rob Hailstone on May 24th, 2012 at 6:46 am
  3. Very interesting Neil. I don’t think it’s quite right though to say the Bar has been hit with the same gusto as solicitors. LASPO hit the advice sector more than solicitors more than the Bar. Also there was a one off pay rise around the time of Carter, if I recall correctly, which had the solicitors looking askance. It was directed towards the junior Bar. I also had a quick look at rise in higher criminal legal aid fees over the last 5 years or so as a proxy for Bar income in criminal defence work. This increased faster than the very modest growth in the size of the Bar. To rely on it one would need bettter data, but it suggested earnings per head went up. I suspect this is doing more cases for less money per case (in real terms) but also because costs on big cases increased and that the senior Bar continued to do relative well. That is not to say the Bar is not in justified in at least some of its complaints, and the junior bar in particular, but in relative terms they have fared less poorly than solicitors.

  4. Richard Moorhead on May 24th, 2012 at 8:55 am

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