Do Law Society elections have a future?
19 August 1997
Every year solicitors vote for a Law Society president, yet the position carries little power. Andrew Lockley examines the alternatives to this expensive constitutional peculiarity
While national politicians held their first election for five years, the Law Society has had its third in three years. Why is the presidency of the Law Society worth fighting for? It brings its holder great prestige but no real power. The Queen reigns, but she does not rule; similarly, the President can persuade, but he cannot govern.
The purpose of any universal franchise is to enable members of a governed group to elect their representatives in a government that will make decisions about their lives. This is so in professional bodies, as in national politics.
The Law Society of England and Wales, however, has a constitutional peculiarity. As well as voting for local Council members every four years, the entire solicitors' profession can choose a president every year.
Although the Council wields real power over solicitors' professional lives, individuals have run for president on policy platforms as if they themselves had the power to implement them. But there is no political machinery to support a president, which means his achievements will be minimal unless he can carry the decision-makers on the Council with him - or, in the future, her.
This is not good for democracy. Candidates elected on the basis of a manifesto of policies may have a mandate, but if they are seen to be powerless to carry through their programmes, electors will eventually become cynical about the democratic process which is supposed to allow them their say. They will challenge the expense involved; and even fewer will bother to exercise their vote.
This paradox of an election to an office without real power led the Law Society to consult earlier this year on constitutional change.
One way to cure it is to link the national election to real, political power. That political power could reside in the president, or in some other individual leader. Such an individual would need to be given additional authority - for example the right to control the professional body's budget, and the right to veto Council decisions. But these examples are clearly a recipe for constant conflict, and therefore possibly inaction.
An American president without Congress on his side suffers the same fate, but at least he has his own executive authority. But what if the Law Society were to make an open distinction between a figurehead president and another individual who held political power - in effect, a leader of the Council, with a role similar to the leader of the largest political party in a local authority? That would leave the president to play a role not dissimilar to that of a Lord Mayor of a large city. He is sometimes compared with such a figure today. He has a well-appointed parlour and chauffeur-driven car at his disposal, he chairs the Council and performs ceremonial functions.
Under present arrangements, however, presidents play two other vital roles not generally performed by mayors. First, the president represents the profession in dialogue and negotiation with Government and other important authorities. This gives him the ear of the Lord Chancellor and other senior figures. Many presidents have used this to advantage. Furthermore, by chairing the most powerful committee of the Council, ex officio, he can play an influential part in determining the management of Council business.
For a presidency shorn of even these two opportunities to exercise power, the expense of a national election would be unjustifiable. So could national elections instead become votes for leadership?
If we assume that parties espousing contrasting policy programmes could be identified (a big 'if' in professional politics, which are mercifully short on ideology), the leader of the largest party would be the leader of the Council. In national politics, such a person is elected by fellow party members, and put forward as the potential prime minister at the end of a national election.
Could that work in a profession? It would require a 'general election' of the Council every four years, with each party identifying perhaps two individuals who would serve as leaders during a four-year term on the basis of two-year search. It is difficult to imagine anybody in practice being free to serve a full four-year term. The system could be so devised that if a leader lost majority support, he or she stepped down.
The only other option for change is to end the constitutional anomaly of national elections for the presidency. The Institute of Chartered Accountants in England and Wales recently commissioned a review of its constitutional arrangements from a distinguished City solicitor, Peter Gerrard CBE. His conclusion was that the accountants should not move over to universal direct elections for their president.
It is, of course, one thing to maintain a status quo in which a universal franchise does not exist. But to take away an existing democratic right is another thing altogether. The most logical course would be to move to a different system, but it will not be surprising if there is no change - even if the result is spending almost £100,000 a year on an election to an office with no real power.