In the Media

Top judges attack key legal reforms

PUBLISHED June 25, 2006

The Lord Chief Justice and the Master of the Rolls this week cast doubt on whether the government?s proposed alternative business structures (ABSs) for delivering legal services will do anything to improve access to justice for the vulnerable.

Giving evidence before the joint parliamentary committee on the Legal Services Bill, the country?s two most senior judges also expressed concern over how such structures would be regulated.

The Lord Chief Justice, Lord Phillips, said: ?[The ABS structure] is going beyond Sir David Clementi?s recommendations in a dramatic way? People think it means they will be able to get legal advice from a kiosk in Tesco for ?5.?

Lord Phillips said it was more likely to be organisations such as claims management companies that would want to take advantage of the new regime and provide legal advice directly. He said lawyers may well go into partnership with accountants and estate agents, but that it was ?not easy to envisage? other types of partnership or ?see how they will improve access to justice?.

He added that it would be easy to imagine conflicts arising between estate agents and lawyers working within one organisation, where a lawyer may be under a duty to advise that a transaction does not go ahead.

The Master of the Rolls, Sir Anthony Clarke, added: ?Legal aid is not available for the vast area of civil disputes. It is very difficult to see how this suggestion is going to improve access to justice for those who need it. Anyone who is going to invest money is going to expect a return.

?It is far from clear to me how this will improve access to justice. I am not contradicting the whole idea of it, but it is far from clear.?

He added: ?There are going to be a whole series of ABS regulators, and like a ship choosing which flag to fly, there will be competition ? and it?s rather a worry. It is not clear to me why there is not a scheme for one [single] ABS regulator.?

In the same evidence session, Law Society Regulation Board chairman Peter Williamson called for clear criteria for the separation of the Society?s regulatory and representative functions to be written into the Bill.

The board wants the power to set the practising certificate fee in relation to regulatory aspects without the need for approval by the Law Society Council. It said in its submission that the representative body of a regulator should not have a power of veto over the regulatory body?s funds, suggesting that the representative body should instead be able to put its case to the Legal Services Board (LSB) if it considers ?that a regulatory body?s expenditure is excessive.?

The board also wants to be able to deal directly with the LSB and other bodies, and to make new regulatory rules without the need for these to be rubber-stamped by the Council.

Mr Williamson said: ?[This] has always been there as an implied part of the separation [between Law Society regulation and representation] we have at the moment. We all need sufficient clarity? The Bill talks about there being no representative influence over regulatory matters.?

Law Society President Kevin Martin said: ?The Society has already said in evidence to the committee that it believes separation of representation from regulation means that arrangements must be made to ensure that the regulation side has the resources it reasonably needs to carry out its responsibilities.?