Legal Profession: Regulation

Lord Mackay of Clashfern Excerpts

Monday 3rd December 2012 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, it seems a long time since Burns Night 1989 when I introduced Green Papers about the reform or control of the legal profession. Your Lordships who are old enough will remember that these Green Papers provoked a certain ripple of interest from the judiciary and others. There have been great changes since then. In formulating the Green Papers we were principally, although not entirely, dealing with what looked like anticompetitive practices in the legal profession. To what extent a particular practice is anticompetitive is quite a difficult question. For example, it was thought that preventing the legal profession advertising was anticompetitive; I am not sure that the legal profession is better today with the kinds of advertisements you see on the television and in the newspapers. What one characterises as anticompetitive may, in fact, be something to do with the quality, independence and integrity of practitioners. If I am a reasonable member of a legal profession, I surely do not need to make my way forward by criticising my fellow practitioners. Relationships created in the course of professional work should, in my view, be the principal recommendation for a professional person.

Matters have since moved quite a distance. In my final proposals, which went through as an Act of Parliament, judges were given an important role in the control of the legal profession, which worked pretty well for a time. Gradually, the influence of judges was reduced until it disappeared altogether from the formal aspects of the regulation and eventually new standards were set up. I believe that the late Lord Nolan was the first to point out the need for a division in the Bar between its regulatory and representative functions, particularly in relation to the charges levied by the Bar Council for being a member of the Bar. If it was regulatory, it could be compulsory, whereas if it was representative, it should be voluntary. “No taxation without representation” might be an adapted expression for what he said.

It is also important to remember education in this connection. It was important in my judgment, and I remain of the view that it was probably correct, that a reasonably efficient system of education was required to maintain the professional quality of the Bar and of the solicitors’ profession.

It seemed to me, and I still take this view, that the different branches of the legal profession have different challenges to face. Therefore, I am glad that the Bar Standards Board, the Solicitors Regulation Authority and the other regulators which exist now in the legal profession have independent existence. I remember discussing the need for differences with Sir David Clementi. I think he did not fully agree with my point of view, which was why he suggested this overarching supervisory body for the legal profession as a whole. He thought that the legal profession should be regarded as a whole, and I could see the force of that. I also think that overspecialisation in the legal profession is detrimental to its success as a proper organ in the general affairs of our country.

We must recognise that it is important that the legal profession should be independent. In recent days, we have heard a little about regulation in relation to another independent part of our economy with a fairly heated argument on one side and on the other. That was part of the burden of the debate that we had on the Green Papers on that marvellous Friday, which I certainly remember with great—what should I say?—anxiety as to whether I was doing the right thing.

As I have said, education is important. In this connection, I would be glad if the Minister would comment on a report that I have recently read that the College of Law has been transformed, no doubt with the authority of the Privy Council, into the University of Law. I always thought that a university was supposed to be an institution which had perhaps not absolute universality but at least covered a few disciplines, including medicine and the like. But the University of Law seems to have only one discipline as its subject matter.

[Lord Phillips of Sudbury]

Is it not also true that the university which emerged from the College of Law is a profit-making entity? I rather think that it is.

[Lord Mackay of Clashfern]

I am just about to come to that point. I understood that the something or other—I am not sure exactly what—of the College of Law has been sold to a commercial organisation, which I assume has a profit motive in it. I do not think that it is a charity. However, the university would be a charity, at least under the ordinary definition of charity which prevails as an institution for the advancement of education. I would be glad to know a little about the Government’s policy in relation to having the legal profession taught, and a university financed, by a profit-making organisation. I am not against profit for profit’s sake at all but, hitherto, universities have not been regarded primarily as institutions set up for profit, except for the profit of those who profit from them.

The noble Baroness, Lady Deech, has led the Bar Standards Board with tremendous distinction. I sensed a certain amount of frustration in her remarks this evening about the way in which really efficient standard-setting for the Bar can be damaged by unnecessary and sometimes overcomplicated interventions by those who do not quite share the same objectives as the Bar Standards Board. I feel that the same may be somewhat true in the solicitors’ branch of the profession.

I hope that the Government will take very seriously the suggestion that this whole area should be subject to post-legislative scrutiny. The Joint Committees of this House and the other place have shown themselves to be very valuable in scrutiny of legislation. Post-legislative scrutiny of this legislation, which is so fundamental to the success of our free legal profession, is now due.