Opinion: Deny the passengers, who want to get on

Solicitors who are employed in the Government service are not required to comply with the same regulatory system as other solicitors. According to the Law Society and most of the legal profession, that exemption is not justified.

Geoff Wild

The exemption that allows solicitors in the Government service to operate without a practising certificate, which is a strange anomaly in any event, should be abolished.

It is a core principle that all those who are subject to regulation should contribute to the cost of regulation. The basic principle is that those being regulated should bear the cost.

As far as the cost of regulating solicitors is concerned, the present position is that all solicitors providing legal services in private practice in England and Wales are required to hold and pay for a practising certificate and thus contribute towards the cost. Solicitors also have to qualify to get that certificate.

Solicitors in commerce, industry and local government are required to have practising certificates if they undertake reserved activities, or if they are held out as solicitors. Government solicitors, however, are wholly exempt from the need to hold a practising certificate in England and Wales, even if they do the same job as local government solicitors.

Scottish solicitors must comply with the same rules as those in private practice or local government. The anomaly applies to England and Wales and dates from the 19th century.

It is unclear why the exemption was originally provided. No logical and persuasive reason has ever been given as to why the exemption should continue to exist. It seems entirely anomalous that one, rather self-interested, pocket of people in Government should be protected from the same regulation and financial obligation affecting everyone else in the profession.

Simply saying that because Government lawyers do not hold client money there isn’t a regulatory risk doesn’t hold credence.

The argument is not about the risk factor. It is about the fairness factor and the need for equal treatment of everybody who contributes to the great new edifice of this regulatory regime.
The issue is about ensuring that people pay to fund the process of qualifying to be a solicitor and continue their professional education, which all solicitors are expected to do to advance their careers. The people who administer and enforce the rules of conduct must be paid fairly.

It is also about covering the cost of monitoring and enforcing compliance with the rules of conduct, which is a service that all other solicitors pay for. Government solicitors are governed by those rules, so they’re getting the service and paying nothing, which cannot be right.

When the CPS was created in the 1980s, prosecuting solicitors who had worked in local government and held a practising certificate there transferred to the CPS, a central department. The Government recognised that it was unjustifiable that that change of employer should mean that those solicitors did not have to hold practising certificates, so the Prosecution of Offences Act 1985 specifically required CPS solicitors to hold a practising certificate. That remains unaltered today.

Similarly, when the Bar Council’s practising certificate fees came into force as a result of the Access to Justice Act 1999, no provision was made to exclude government barristers from the need to hold a practising certificate.

Both recent changes have integrated practitioners working in the government service, so there is a discriminatory anomaly relating to solicitors in the general government service, who are clearly benefiting from something unjustifiable that involves other anomalies, too. Barristers who work for the Government must pay; solicitors who do need not.
It could almost be regarded as justifiable if the Government claimed that the solicitors who work for them are second-class solicitors. However, those people are not employed as second-class solicitors. They are employed as solicitors, equal to anyone in their profession.
They are subject to the same professional discipline as others and to the same rules in other respects. Yet the perception remains, partly due to the existence of the exemption, that they are somehow an inferior breed of solicitors.
The Attorney General has argued that there would be no public benefit from removing the exemption for government solicitors and that it would only put up the Government’s costs. If government solicitors are effectively regulated, as they should be, and are subject to the same professional responsibilities as their colleagues in private practice, local government, commerce and industry, the fact that the Government provides proper training does not negate the point that the basis of employment should be the same.
The blunt truth is that the Government is getting solicitors on the cheap, or solicitors in government service are getting their opportunity to be solicitors on the cheap ahead of everybody else, which cannot be good or fair. The rest of the profession thinks that some protectionism is going on, which is not good.
What is inappropriate, however, is for the same practising fees to be applied to all sectors, given that there are significant differences between the ways in which different sectors regard the use of regulatory resources. In the case of government and local government lawyers, the cost of practising certificate fees arguably should be less. There are certain activities in which there is no risk at all, but that does not mean that they should be wholly exempt.
The present law does not allow the Law Society to charge differential fees, so the Law Society cannot charge government and local government lawyers less. That anomaly needs to be changed.
The requirement to hold a practising certificate would not lead to an unfair burden being put on government lawyers of the future or on departments that in practice pay for that certificate. It would mean that there would no longer be an unfair exemption.
<em>Geoff Wild is director of law and governance at Kent County Council</em>