The crisis of confidence at Chancery Lane

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Posted by Neil Rose, Editor, Legal Futures

Tough times for the Law Society

It’s been more than a decade since the last Law Society special general meeting (SGM), called by high-profile civil liberties solicitor Imran Khan over the Kamlesh Bahl affair and allegations of institutional racism. Though very different, next month’s SGM, debating a motion of no confidence in the president and chief executive, also goes to the heart of Chancery Lane, if not quite as painfully.

I am not going to debate the rights and wrongs of the Law Society’s position on criminal legal aid. What I will say is that is that it did not make the easy choice by deciding to negotiate with the government – that would have been to fall into line with the absolute opposition of the specialist criminal solicitor groups and the bar.

By breaking ranks the society has punched a hole through the unprecedented unity of the profession and made the job of those other groups more difficult.

But despite conspiracy theories about why the Law Society made the choice it did and the full terms of the ‘deal’ done with the Ministry of Justice, I far prefer to believe that it is truly acting in what – rightly or wrongly – it judges to be the best interests of its members.

The reality is that there is only so much any negotiation can achieve when the government is set on a particular course of action and so the outcome of the society’s engagement with Lord Chancellor Chris Grayling was never going to look that good. Damage limitation and achieving the ‘least worst’ result was always the name of its game.

I wonder if to some extent the society was propelled into its course of action by the lack of success in influencing the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and the criticism from many personal injury lawyers – which I share – that it put together an underwhelming campaign on part 2 of the legislation.

Anyway, next month’s SGM is the perhaps unsurprising result of its approach this time around; that the Law Society bye-laws allow just 100 members out of a total of 160,000 or so to requisition an SGM meant the bar for dissidents was pretty low.

Timing was a problem for the leadership – the window in which it had to call the SGM fell in between planned meetings of the ruling council and so it is no surprise that there will now be a specially convened meeting of the council following the SGM.

While this is ostensibly to consider the outcome of the SGM as quickly as possible, it does have the major benefit of ensuring that up to 100 council members will be there to vote against the motion in the first place. Though rapid action will indeed be needed if the motion is passed, arguably they could have kept a date in the diary for later that week so as first to await the outcome.

Of course, should all those who signed the petition turn up at the SGM, they will still probably carry the day. And in any case, the bye-laws provide that following the vote on the motion, whatever the result, a postal ballot of the entire membership can be demanded by 20 members present, or 25% of the members present, whichever is the less. This really isn’t much of a hurdle at all.

It’s worth noting too that the society could have delayed holding the SGM until mid-January, by which time it is thought likely that Mr Grayling will have announced his decision on the way forward. This would have rendered the SGM pointless in terms of influencing the society’s policy position, if not so in holding the president and chief executive to account, but Chancery Lane should get some credit for facing up to the issue at the earliest opportunity.

The council meeting has also knocked forward the start time for the SGM to 10.30am, which critics say makes it harder for those in far-off locations to attend. There is no particular consistency in the times when the various Law Society committees and boards meet – some start earlier, others much later – but if you book your train now, it shouldn’t be beyond any solicitor to get there at a reasonable price, even if you have to get out of bed early.

Should the motion be carried, obviously the pressure on president Nick Fluck and chief executive Des Hudson will be extreme, even though constitutionally an SGM decision is not binding. But the bigger question is whether these shenanigans will have any impact on the Ministry of Justice.

It should come as no surprise to officials that not all members agree with the Law Society’s position, but the fact ministers can say they have been talking to the society and listened to (some) of its concerns has undoubtedly been valuable cover for the reform programme. Even though a bit of divide and rule never goes amiss, this benefit probably means they will want the motion to fail.

The Law Society has plenty of critics from within its own ranks – to that extent criminal lawyers need to join the queue – but this is the first time they’ve come out into the open. Whatever the outcome, there has to be some soul-searching about how the society operates.

As if this was not enough, I have also written recently about the growing pressure over whether the society should continue to automatically receive around 25% of the practising fees paid by solicitors and law firms, which it spends on what are essentially representative activities. Without that guaranteed income, the whole Law Society model collapses.

This means we are approaching crunch time for the Law Society. While the odds are that it will survive this latest crisis of confidence in its ability to look after the interests of solicitors, I won’t be putting money on that quite yet.