Hudson: who would want his job?
News of a potential split at the Law Society of Scotland, with 165 members from Glasgow writing to newspapers to call for an end to its representative role, may well cause some shudders at its counterpart south of the border.
The critics are unhappy with the legal aid cuts the society has agreed to and there may well be a hangover from last year’s bruising battle over alternative business structures. But the society remains both regulator and representative of Scottish solicitors, which of course is not the case in England and Wales.
Or rather, it’s kind of not the case. The continuing muddle of the Clementi compromise is that the Law Society of England and Wales has two guises. In the guise we mainly see, it is the representative body of solicitors. But in the other guise, which we will see next week, the society, rather than the Solicitors Regulation Authority, is named in the Legal Services Act as the approved regulator of solicitors.
The SRA, for all its operational independence, remains an arm of the Law Society, which is why the society’s ruling council – essentially a representative body – gets to decide on whether to approve the SRA’s application to become an ABS licensing authority.
It is also why the Legal Services Board has detailed internal governance rules and will check compliance with them on an annual basis at all the approved regulators where there is such a split (the Bar Council, Institute of Legal Executives, Association of Costs Lawyers, Institute of Trade Mark Attorneys and Chartered Institute of Patent Attorneys being the others). It is one of the board’s primary roles and in part justifies its continuing existence.
One might think it would be easier to allow the regulators to be free-standing – and there are those who think it will happen – but as I explained in , the Clementi compromise was about ensuring the various professions retained a stake in their regulation, and also keeping lawyers onside with the reforms.
But I guess what could make the denizens of Chancery Lane nervous is simply the idea of solicitors rising up against their representative body. It remains the case that the society is not especially popular among its members. I hear it all the time. This is somewhat unfair in my view – there remains a heavy historical hangover from the many unseemly shenanigans that went on in the 1990s and early 2000s which have forever prejudiced many solicitors against their professional body. Sole practitioners are arguing that it has not represented their interests over ABSs, but in truth the society has little choice but to be in there shaping a regime the government was determined to introduce.
The society has undoubtedly smartened up its act. I’m impressed by some of the support it gives solicitors – I think the practice notes are a particularly good innovation – and it has done sterling work on legal aid. The work and influence of its specialist committees have always been greatly undervalued, while the international department has done superb work in opening up markets, providing major value to City firms which might otherwise question the relevance of the society to their activities. The tension with the SRA can be a good thing – solicitors would want their representative body to lobby the regulator hard.
But at other times it seems behind the curve – its latest campaign on will-writer regulation is particularly strange, given that it is now a matter under active consideration by the Legal Services Board. Who exactly is the society trying to influence? Its communications generally lack imagination (the website is dull and hard to navigate, for example) – compare its website and especially its approach to social media with that of the Chartered Institute of Personnel and Development.
The Law Society undoubtedly still has a major role to play in the legal landscape, even if it is no longer quite as important as it thinks it is. There would be no point in setting up a rival organisation, as has been mooted at various points over the years, because that would only dilute solicitors’ influence. But it is hard to turn this tanker around, not helped by a council that remains deaf to calls to reduce its size – does a representative body need (at the current count) 92 members, at considerable cost to the profession? It has constantly ducked what has arguably been the one hard decision it has faced for the past few years, despite authoritative reports recommending a council of maybe as few as 30 members.
One hears much too about “Blueprint” (so important it doesn’t need a definite article), chief executive Des Hudson’s plan to shake up the society’s organisation to make it fit for the future, but as yet no details have emerged.
It is easy to criticise and a lot harder to do Des Hudson’s job. I certainly wouldn’t want it. The question hanging over the society, however, is the practising certificate fee. Should solicitors be able to choose whether to pay the (relatively small) part of the fee that goes to the society? Much of its work has been deemed regulatory in nature – so-called permitted purposes – meaning that it forms part of the compulsory fee, with the rest funded by commercial income.
But this is another part of the Clementi compromise. Maybe if the society truly had to work for its money – and if it was me, I would choose to pay, at least at first – then solicitors would get the professional body they want.
It’s important not to overestimate the importance of this “rebellion”. Yes, 160 solicitors are revolting, as it were, but another way of putting this is that 9840 solicitors are not. In a poll conducted last year, 70% of the profession confirmed they were happy with the Law Society of Scotland’s dual role. Since the rebellion, correspondence in the press from individual solicitors and an important representative body has been very supportive of the LSS. This rebellion is about the latest Legal Aid settlement which, unsurprisingly has left less in the pot than before. This is highly regrettable from the point of view of solicitors, the public and all concerned about access to justice, but the idea that it is likely to lead to a serious, widespread revolt against the LSS is fanciful in my view.