Practice and Procedure

Keep Tesco out of the law

PUBLISHED December 6, 2006

The legal services bill now before the Lords would end up denying justice to the poorest in our society

It is a blockbuster, running to 322 pages and some 125,000 words, impenetrable even to the initiated. It is the legal services bill, which goes before the Lords today. Its inaccessibility means less effective scrutiny, less public involvement, and yet more self-defeating interference.

It is a bill to cure defects that don't exist - such as the supposed need for competitiveness at the bar and for London law firms to be able to compete internationally. And it directly intensifies pressure on four essential virtues of a good legal system - primacy of public over private interest, prevention of conflict of interest, preservation of absolute independence of lawyers from governments, and effective access to justice.

A parliamentary committee was established under the chairmanship of Lord Hunt of the Wirral to review the draft bill. Denied adequate time for deliberation, it laudably concentrated its critique on these four issues (plus the speculative costings of the reforms). The bill before parliament does little to address any of them. It is a titanic bill driven by the latest in managerialist chic, whipped on by competitive zeal. The real crisis in legal services - namely the implosion of legal aid - may actually be reinforced by it, despite the minister Bridget Prentice assuring the committee that "the purpose of the bill is essentially to put the consumer at the heart of legal services".

But I run ahead of myself. The most revolutionary part of the bill will not only allow solicitors' firms to set up partnerships with barristers and indeed non-lawyers but also - and here's the rub - to be majority-owned and controlled by outside investors. This is prescribed by part five of the bill and what are called "alternative business structures" (ABSs). Of course the bill provides a vast licensing system, including a fitness test. But, as with so much "protection", the bureaucratic steeplechase will "strain out the gnat and swallow the camel" and so favour the big boys. How many firms will want to sell out is uncertain, but that will not stop the creation of new in-bank and in-store providers.

Another trouble is that the new forest of regulations (ironic in a bill claiming to simplify the existing "maze") is unlikely to imbue in the new commercial owners the same hip-and-thigh commitment to an ethos that, the inevitable black sheep apart, effectively upholds integrity within the legal profession, often under severe pressure.

The government will argue that the bill starts with a list of (unprioritised) "regulatory objectives" and another of "professional principles" which all concerned must abide by. However, the strong probability is that "competition" (one of those objectives) will in practice override "access to justice" (another). Just as competition cuts waste, it also cuts out less profitable - and unprofitable - business: "widow's mite" cases and cases where the client is inarticulate, confused or unsophisticated. The more such cases you take, the more you lose - except in terms of providing justice for often desperately needy people.

Big business, with its unitised, commodified approach, will run a mile from such clients and feel no compunction in doing so. By contrast, many local solicitors still take the rough with the smooth in terms of clientele. Furthermore, most citizens often need help on several legal fronts and non-legal guidance that the local contacts and knowledge of the community solicitor can provide. Technology is no substitute..

Some proponents of ABS mumble about pro-bono work and the voluntary sector - Citizens Advice Bureaux and the few law centres - taking up the slack. But that presumes too far. Pro-bono work is not remotely a substitute for a proper national legal service. And CAB's are charities and usually dependant upon willing local lawyers for difficult and contentious cases.

It is not of lack of capital - the prime justification for the ownership reform - that hampers equal justice, but the burgeoning complications of advice combined with a bureaucratic and unastute legal aid regime, crippled by uneconomic rates of remuneration.

In today's law-constipated world nothing could be more important than a restoration of an approximation of equality before the law. But the belief that the shareholders of banks or supermarkets are going to put commercially unrewarding legal needs before maximisation of profits is unrealistic. So is the notion that the inevitable cherry-picking by commercial incomers of those profitable services susceptible to mass handling will not undermine the willingness and financial ability of high-street solicitors to go on handling the difficult, underpaid cases. It is bizarre that we should be the only country in the world contemplating capitalist legal-advice providers; very few countries even allow multidisciplinary firms. The reform must be resisted.