Why break up the Law Society?
28 May 1996
I agree with Martin Mears. Splitting the Law Society into separate regulatory and representational bodies would bring no advantage. Change can be achieved within the existing structure.
So why are some of his supporters trying to establish a new organisation - the Solicitors' Association - to take over the representational job of the society? Why did the idea originally win the backing of Mears' vice-president, Robert Sayer?
The argument is that the Law Society cannot act in the interests of solicitors while it must also take account of the public interest. In other words, when the Council makes professional rules, it cannot put solicitors' interests first.
This is a correct statement of the duties laid upon the council by law. But is it really so clear that the profession's interest lies one way and the public's another?
Take some of the rule changes of the past few years. Does anybody argue that client care obligations are not in the profession's interest? Or that keeping ourselves up-to-date with legal and practice developments is harmful to our interests? Or that we should not have compulsory insurance? Or that we should not be permitted to advertise?
Which are the occasions when the council has chosen the public interest at the expense of the profession's? Even if such occasions can be found, the truth is far more subtle. The council has the ability to take the profession's practical concerns into account when making rules in a way it would not be incumbent on any outside regulator to do.
And it does so. It listens readily to representations made in the consultations which must precede any decision to change the rules. These often change the course of a policy debate.
Sometimes, the council can use its freedom to make rules to head off the need for the Government to act in a way which would be detrimental to the profession's interests. Just consider the history of authorised conveyancing practition- ers. But it would be counter-productive to shout too loud about that.
The Solicitors' Association would wish a separate regulatory body on us. How would that have the freedom to act in the subtle way the council can at present? Why would it act with less regard to the public interest than the present council? And what if the Government decided to take it over and make it into an SIB for the legal profession? What obligation would such a body have to take account of the wishes of solicitors? Or their pockets?
The concept of two separate bodies has been born out of frustration with Mears' and Sayer's inability to deliver the action they promised last year. The proponents of the Solicitors' Association imply that breaking up the Law Society would solve the problems of low-price conveyancing and the high number of entrants to the profession, and curb the cost of their professional body. How? There never were any magic solutions to the first two problems. Both new bodies would still be bound by the law, which is the principal obstacle to the aspirations of the Association.
As for curbing the cost of the professional body, turning it into two must be more likely to increase the total amount paid by the profession. Two organisations are bound to lose economies of scale.
The new association could not lawfully step into the Law Society's shoes and tax the profession for dues, at least not under existing legislation. And do the association's proponents believe they would ever obtain parliamentary approval for a compulsory levy to pay for representation? Trades unions have lost that power: how could we argue we are different?
So the Association will need to raise its own funds on top of those levied by the Law Society. Good luck to it. May it fare better than its predecessor, the British Legal Association.
The present arrangements are illogical, and not understood by many in the profession. But they work. And they need to be better explained.
But breaking up the Law Society? That would undermine its effectiveness permanently, and that would be less in the profession's interests than any imagined failings of the council.