Hale: rule of law issue
The Legal Services Board (LSB) is to meet with the deputy president of the Supreme Court, Baroness Hale, after she expressed the senior judiciary’s concern over its statement last year that the regulatory objective of ‘encouraging an independent, strong, diverse and effective legal profession’ was “problematic”.
The LSB has already written to Baroness Hale, and will meet her next month, after her comments in late March to the House of Lords’ select committee on the constitution, where she was giving evidence with Supreme Court president Lord Neuberger.
Asked whether there were any aspects of the rule of law to which they wanted to draw the committee’s attention, she replied: “It is our view as judges that the quality, independence, integrity and professionalism of the legal profession are essential to the proper administration of justice and the rule of law.
“It is not our role to speak up for the legal profession – we left that many years ago – but it is a rule of law issue. The present system of regulation for the legal profession is very complicated, but it was a very carefully worked-out balance between different types of regulation and different regulatory bodies.”
Highlighting the LSB’s statement – contained in its vision for the future shape of legal regulation – Baroness Hale continued: “They seemed to think it problematic because the independence of the legal profession might be seen to conflict with consumer interests.
“The whole point about the independence of the legal profession is that you are independent of your clients; your duty to the court comes before your duty to your client. Obviously your duty to your client is incredibly important, but that is true whichever branch of the legal profession you are in.
“That is what that objective is about maintaining. So if the top regulator thinks that is a problem, it is a problem for us and for the rule of law.
“It is very much a straw in the wind or a cloud on the horizon, or whatever, but we thought it quite important to draw it to the attention of this committee, so that, in a rule of law sense, you can keep an eye on it.”
In its vision document, published last September, the LSB said the objective was problematic because “it does not appear to stem from the fundamental justification for sector-specific regulation, namely the public interest and consumer protection”.
It continued: “There will be occasions when the profession’s concerns will not coincide with these interests. It is highly unusual for a regulator to have such an objective.
“Furthermore, it does not reflect the make-up of the supplier base in the modern legal services market – where other professionals, such as accountants, are authorised to provide reserved work, and unregulated providers have gained some market share in areas such as will writing and intellectual property.”
The LSB argued that the “high international standing” of the legal profession would instead be reinforced by an “overarching public interest objective (and/or a secondary objective expressed in terms of preserving and enhancing the economic and public value of the sector) rather than making the encouragement of a strong legal profession an objective (or part of an objective) in its own right”.
The minutes of last month’s meeting of the LSB recorded that then chairman Sir Michael Pitt had written to Baroness Hale – with a copy to the chairman of the select committee, Conservative Long Lang – “to reassure her that the LSB believes the rule of law is of vital importance, and that it does not believe that the independence of the legal profession conflicts with consumer interests”.
One is tempted to say ” better late than never”….but it is already far too late.
The judiciary may wake up to the fact that “they” will be coming for them next….but probably not…..