Guest post by Crispin Passmore of Passmore Consulting and former director of policy at the Solicitors Regulation Authority
I have written before about the Law Society. One of the impacts of its poor governance is that the Law Society finds it much easier to be against things than it ever is for them. The most recent example is its response to the Independent Review of Legal Services Regulation being led by Professor Stephen Mayson.
This review is looking afresh at how we regulate legal services in England & Wales. It is not yet at the stage of a final report but is edging through the issues, potential solutions and ideas thoughtfully – not at all surprising when you consider the panel he has assembled.
There is no expectation that the government will pick this up immediately, more that it provides a basis to do so when it is ready. The various papers from the review are well worth reading.
- Now is not the right time because of new SRA regulations and Brexit;
- Reform to regulation will not tackle unmet or latent demand;
- Change creates uncertainty and costs, with unintended consequences for courts, tribunals and the judiciary;
- There is too much focus on promotion of competition by regulators at the expense of consumer protection;
- Only lawyers with a title such as solicitor should be able to deliver most legal services; and
- International trade depends upon the status quo
The Law Society finishes with a call for more investment in public legal education (PLE) and more money for legal aid.
Its arguments are similar to the ones Chancery Lane has made against all the proposals and reforms ever since the Office of Fair Trading published Competition in the Professions back in 2001. The Law Society fought hard against the Clementi proposals, against the Legal Services Bill and against how the Legal Services Board implemented the Legal Services Act.
The trite opposition we see now was similarly trotted out as the separate business rule was reformed, multi-disciplinary practices enabled, solicitors allowed to work freelance and in unregulated firms, and the new SRA Standards & Regulations were consulted upon.
What strikes me is that the Law Society has so little to say about how the market where its 200,000 members ply their trade should be regulated. Where is the vision? Where are the alternative proposals? Nowhere does it even acknowledge the problems with the current legal market and how it operates.
Across the world, legal needs surveys show that individual people and small businesses do not get the legal services that they would benefit from. Corporate clients have been building in-house capability and buying from alternatives to law firms because they were not satisfied. Competition is driving corporate law firms to respond. Many other law firms are innovating too. They are ahead of their trade association.
Let us just think about the frequent call to invest more in PLE. I do not know how much we have spent on PLE in the last 20 years but it is substantial. Yet the legal needs surveys do not suggest that understanding has shifted.
If that leads to a chorus of ‘we need more to have impact’, let’s look across to financial services. Billions of dollars and pounds have been spent trying to shift consumer behaviour, yet a meta-study of all research suggests that financial education explains less than 0.1% of changed behaviour.
PLE is money down the drain that could be spent on legal aid. So why do the Law Society keep calling for it in the face of evidence that it does not work? Perhaps it is just a smokescreen to hide the real issue that the legal market simply does not work for millions of people and businesses.
People do navigate the legal market effectively enough when the stakes are high. They find criminal lawyers urgently and get to barristers when they need them. The find lawyers to deal with assets, be that house purchase, will writing, creating trusts, or administering estates. And in England & Wales they have increasing choice, in part because of regulatory reform.
But for many other issues where law could help, especially for the less well-off and for small businesses, the legal market just does not meet their needs.
Even in the most restrictive and tightly regulated legal markets, such as the United States, the failure of professional monopolies is being recognised and leading to a rethinking of regulation in order to encourage competition, innovation and access. New products, platforms, services and channels are required to tackle legal needs not currently addressed on both sides of the Atlantic.
It is only right that we look again at how we regulate in England & Wales. Our legal market is one of the most significant in the world. We have led the pack in rethinking legal regulation and our reforms have made our jurisdiction very attractive to global legal businesses.
But we cannot rest on that – more is needed within the current system and to change that system. Regulation could be cheaper and more flexible; more dynamic and forward thinking. Professor Mayson is tackling that with an open mind. My reading of the interim report is that he is at pains to provide a real role and future for the Law Society.
The Law Society currently has a monopoly on the most important title in our legal market. And because of the reputation of our courts and judiciary, the accessibility and flexibility of the common law, and our reform of regulation including the Solicitors Qualifying Examination, its importance globally will grow.
As with most monopolies, the Law Society betrays a lack of investment, poor governance, high costs and low innovation. Perhaps Professor Mayson should be tackling the very existence of the Law Society in its current form?
The fact that the best Chancery Lane can produce is a dull attack on interim proposals and options suggests that they have little agency over their own future. If they can’t engage positively on the most important debates facing their members, then what is its point? Why is the Law Society needed at all?