26 March 2001
While much has been made of the controversy aroused by the Office of Fair Trading's (OFT) recent report on the professions, it is worth first dwelling on some of its positives.
A key conclusion on the education side was that "there is no evidence that the entry qualifications for barristers are unduly restrictive". After years of reform of education and training at the bar, including the introduction of validation for a range of institutions and improvements to pupillage, such a finding is testament to the great deal of hard work to develop a system fit for the 21st century. And it shows the extent to which OFT consultants LECG took soundings from a very limited market.
No real negatives came from the report regarding the use of the professions. LECG states: "These investigations did not uncover significant concerns among users of professional services, whether about quality, price or innovation." And though we have been sceptical about the OFT's findings, we are positive about the process that follows. If there are innovations or improvements which benefit the lay or professional client we will embrace them, and we have asked leading silk Sir Sydney Kentridge QC to lead the team that will evaluate the OFT's findings. We want this to be a positive process, but see no justification for a narrow, economic rationalism of the sort espoused by the OFT, to result in the removal of public interest benefits that arise from a strong, independent legal profession.
The Guardian's editorial column accused the OFT director general of sounding "a bit too much like an economics professor". It stressed: "There are vital social functions performed by the professions. As entities within civil society, self-interested or not, they do act as buttresses against the over-mighty state, and their codes of honour often challenge the mindless market."
The Times was stronger still, claiming that the OFT's report "risks excessive simplification... directs an essential bias towards the customer," and "is inclined to regard the provision of legal services and the sale of toothpaste as indistinguishable". It adds: "The Bar Council is entitled to protest that the range of recent reforms of its profession has been underestimated."
It is important to understand that the OFT did not conduct a public interest assessment of those areas of practice at the bar which it claims restrict competition. The OFT states that "this is a rebuttable presumption", and we agree. Its assessment leans heavily on the findings of LECG, which sought views on its provisional conclusions before going into print. LECG says that the aim of its report was "to assess the effect of restrictions on competition, rather than to carry out a full public interest assessment". It adds: "We see the full public interest assessment as a later stage."
Much has been made of the QC system, and the views expressed by the OFT in this area. Sir Leonard Peach has thoroughly reviewed the system and welcome improvements are being made. The Lord Chancellor has made it clear that it is he, rather than the Government, who appoints silks. There are strong reasons for this remaining to be the case, not least because of the public confidence that exists in the brand of QC. Why else do politicians so often reach for a QC to lead inquiries into things that have gone wrong in public life, from child abuse to corruption in local government?
Perhaps the weakest area of argument has been about multidisciplinary practices. The OFT claims that MDPs will enable firms to transfer resources in response to "fluctuations in demand". But it is hard to see why this cross-subsidy of professional services, which could cushion inefficient practices from the market rigours, is in the consumers interest. The OFT also suggests that MDPs would enhance customer choice. However, if two or more professional practices are tied in to each other, then surely the consumers' ability to make separate choices about, say, the best architect or best accountant for their needs is limited.
As always, many supposedly pro-consumer arguments are superficially attractive, but it is necessary to examine them far more closely.
Roy Amlot QC is chairman of the Bar Council