Banging the legal aid, human rights, and diversity drums

A criticism often levelled at the solicitor profession is its inability to bring its considerable lobbying weight to bear against the government, unlike the Bar, which often appears to get its way when critiquing policy with which it disagrees.

This is perhaps unsurprising when considering the disparate nature of the solicitor profession, comprised of more than 160,000 practitioners with numerous specialisms and competing interests. ?The Bar, by contrast, is more often likely to speak with one clear and resounding voice. 

So, who is to blame? Some point accusatory fingers at the Law Society itself, citing ineffectual leadership and lack of direction as the primary causes for failure. The motion of no confidence in the senior leadership, which passed in December 2013, is still fresh in the minds of many both within and outside Chancery Lane.

The appointment of Andrew Caplen as president in July 2014 did much to undo the damage of what had come before. The Southampton-based solicitor received praise for his leadership while head of the supreme representative body, which still witnessed further cuts to criminal legal aid, a crisis within the court system, curbs on judicial review, and plans to scrap human rights legislation. 

Nevertheless, the former duty solicitor’s 12 months at the helm of Chancery Lane will be remembered with fondness by those who appreciated his soft yet outspoken style, even if it failed to convince the government to halt its justice reforms. Yet just as some began to admit defeat in the war for access to justice, the news came that the government was to postpone the start date of the new and hugely contentious crime duty contracts. 

The ‘flawed’ procurement process has led to a deluge of litigation, with 115 claims issued by 97 unsuccessful firms. The government, while not routed, is certainly in retreat and, from this position of strength, the Law Society has called for a parley between the Ministry of Justice and legal aid solicitors – rightly recognising that the cost of litigation, both to the state and the profession, could be enormous. 

This diplomatic approach typifies Jonathan Smithers’s first five months as the society’s new president. The high-street conveyancer and senior partner of CooperBurnett explains that, since the general election, the Law Society has continued to build bridges with the government in the hopes of influencing policy. 

‘We have very close contact with the front ?bench, with Michael Gove, Jeremy Wright, and all the other ministers,’ says Smithers. ‘It’s useful to be there to talk to Conservative lawyers and other parliamentarians. It’s a slightly different emphasis when you’re in the first year of a new parliament as opposed to coming up to an election. You have to keep on banging the drum. If we’re not successful now, we might be at some point in the future by keeping these issues live.’

A new Lord Chancellor and a resurgence of recognition of the importance of legal aid by the Labour front benches have certainly reinvigorated the access to justice campaign. Michael Gove has shown a willingness to talk to the profession and roll back unpopular policies, while Labour’s Jeremy Corbyn has announced an immediate review into legal aid by his party.

‘They’ve got to look back into what they did when they were in power because legal aid has been diminished for 20 plus years,’ remarks Smithers. ‘Even when there weren’t huge cuts, there were not increases, so it was getting nowhere against inflation.’ 

Nevertheless, previous mistakes could well be forgotten if Labour can weave some magic on behalf of the most vulnerable and the legal profession. ?‘If they’re going to do it properly, they’ve got to go back, and I suspect that keeping it narrow will be a challenge for them,’ Smithers adds. ‘We look forward to hearing what they have to say and if they can influence the current government with some thinking and research then all to the good.’

Human rights?

Smithers seems less inclined to be diplomatic ?on the thorny issue of human rights and the government’s controversial plans to replace the >> >> existing legislative framework with the panacea of a British Bill of Rights.

‘We’ve been very clear on our policy that we’d ?like the rights within the Human Rights Act to be retained, particularly the use of the Strasbourg ?court and the convention,’ says Smithers. ‘Our international standing is extremely important, as it is for this jurisdiction to be seen to be complying, even if sometimes we don’t like the judgments. That’s the very point: the court is independent. And guess what? We’re not going to like it sometimes.’

Since announcing plans to scrap Labour’s 1998 Act and sever the judicial link with Europe, there has been much conjecture as to what the Tories’ fabled Bill will contain, and, more importantly, what it will not. A recent leak to The Sunday Times suggests UK’s judges will be told not to follow rulings of the European court ‘slavishly’ but instead rely on the common law or rulings from Commonwealth countries when making judgments.

‘We’re waiting to see what’s published,’ says Smithers. ‘There’s no point in talking about something when we don’t know what the proposals are yet. I’ve heard some speculation from the last two party conferences of what it might say. I want to see what it does say. We’re lined up to give our opinion, talk to our members, and come to a formulated policy. Generally speaking, there is huge concern about the withdrawal from the European court.’

White elephant

?Smithers’s journey to the pinnacle of the solicitor pyramid began with his articled training in 1984 at CooperBurnett in Tunbridge Wells. He qualified in 1986 and became an equity partner in 1990. ?For over two decades he has been head of the firm’s property department and managing partner. The conveyancer was elected president of Tunbridge Wells, Tonbridge, and District Law Society in 2002 and president of the Kent Law Society in 2007. He joined the Law Society Council in 2007 and represented more than 2,000 solicitors in the Kent constituency.

This experience has stood him in good stead for taking over the top job from Caplen earlier this year. In his inaugural speech as president, Smithers said he would prioritise three key areas: championing the role of the solicitor in protecting the rule of law; highlighting the importance of access to justice; and stressing solicitors’ expertise in conveyancing.

Having practised property law for over 30 years, it comes as little surprise that Smithers would dedicate a considerable portion of his presidential time to championing an often overlooked specialism, despite its forming the backbone of the solicitor profession. Some might question, however, how emphasising the work of conveyancers sits alongside highlighting the work of legal aid lawyers and human rights defenders. Yet for Smithers the rule of law intertwines them all.

‘I want to leverage my expertise and use the influence wherever I can,’ he says. ‘It ties into my theme about the rule of law and the appreciation of what solicitors do in society. The ability of individuals to have proper independent legal advice when buying and selling properties is extremely important. We work in a system with lots of other people and I want to make sure that continues to be fully appreciated and that we work collaboratively to make the system better for the consumer.’

Smithers’s passion for property does, however, draw attention to the potential ‘white elephant’ in the room: the society’s divisive pet project, Veyo. In a highly publicised move, the Law Society invested over £5m in Legal Practice Technologies, a joint venture with global technology giant Mastek, to deliver an online conveyancing portal. Yet despite 1,880 firms ‘expressing an interest’ in the programme and some 80 signing up to work on the first development phase of the portal, Veyo has been beset with complications and delays. 

Des Hudson, the former chief executive of the Law Society, left his post as Veyo’s chair in August, while SearchFlow recently announced the appointment of two of the portal’s former directors, Stephanie Van den Haak and Maud Rousseau, to similar roles at the search provider. More embarrassingly, there is still no official launch date for a product that will supposedly revolutionise the conveyancing process.

While accepting there has been criticism, Smithers is unapologetic over the Law Society’s foray into playing technology provider to the profession. ‘We worked up a very strong business case at the beginning. We looked at what the market needed and wanted. We did a huge amount of research but it was a risk when we invested in it, but I think it’s a good example of the Law Society innovating for its members and improving the process for everyone,’ he adds.

‘Veyo is a project we’ve been working on for a long time and we’re keen to get it launched. We’re determined that if we launch a product, then it will be as good as it can be and address the market needs. We had a lot of publicity earlier on and unfortunately the product development hadn’t quite matched that in terms of timing but we’re trying to do something completely new and you learn lessons as you go along from that.’

Unfortunately the delays have allowed at least one competitor to steal a march on Veyo to produce a system that may truly rival it. Backed by the Legal Software Suppliers Association, the not-for-profit trade organisation that represents the majority of software suppliers to the UK legal profession, the Free2Convey portal is currently in beta testing and is set to go live before the end of 2015. Like Veyo, Free2Convey is promising a ‘chain view’, allowing conveyancers to chart the progress of each party in a transaction chain. Perhaps more importantly, it is free to use.

Nevertheless, Smithers remains confident that, ?in Veyo, the Law Society has a product that will become the industry standard for conveyancing transactions. ‘There’s a product which has been launched which looks like it might be a competitor. But no one has what we currently do. We’re trying to do something different. Competition is healthy and tells us we’re doing the right thing. Clearly, the sooner we can get on with this the better, but it’s ?got to be right.’

Whether it succeeds or not, Smithers believes that Veyo is a prime example of the Law Society’s ability to innovate to the benefit of all solicitors. ‘The big firms have to deal with the small firms. That’s why you need a common platform. That’s the idea but putting it into reality is proving tough.’

Diversity questions

?Despite improvement, the practice of law is still seen as dominated by white, middle-class males. Recent controversies, including sexist exchanges on social media and ill-considered comments from Supreme Court justices, have reignited the diversity debate. The statistics speak for themselves: while three-fifths of all new admissions and 48 per cent of all practising solicitors are women, only one in four currently make partner. 

With just 6 per cent of partners identified as coming from ethnic minority backgrounds, it is easy to understand why the latest report from the Black Solicitors Network described improving diversity as a ‘painfully slow’ process. Will we ever see true equality at the top of the profession?

‘Absolutely,’ replies Smithers. ‘Equality of opportunity, diversity, and inclusion are very high on our list. We’re not in a position as a representative body to mandate equality, but we want to work as hard as we can to enable anyone, regardless of their gender, ethnicity, or other characteristic, to get wherever they can in firms. Sometimes that takes a while. If we can accelerate that, if we can facilitate it in any other way, then absolutely we will do that.’

How to improve equality at the top of the profession is a debate that will continue to rage, but it should not be forgotten that issues also exist at the junior end. An oversaturation of aspiring lawyers saddled with crippling debt and no guarantee of qualification as a solicitor or barrister has raised questions as to whether the regulators and representative bodies should be demanding change from profit-making educational institutions.

‘There has been an oversupply for quite some time,’ recognises Smithers. ‘But it’s up to every individual to make these choices when they apply. They go into it with open eyes. It’s a risk when they’re doing that. I don’t think it’s for me to say to anyone, “You really shouldn’t be doing that”, because that’s not the job of the representative body. What I would say to anybody considering training is, think long and hard about what the outcomes are. It’s expensive. Do you think there is a reasonable prospect of getting a job? Have you looked into it? Have you done work experience? Are you going in with your eyes open? It’s a competitive market.’

The Law Society has criticised plans by the Solicitors Regulation Authority to reform the approved pathways to the profession, arguing that the removal of the venerable ‘gold standard’ training contract would leave the UK’s global reputation ‘under threat’ with a watered-down qualification. However, Smithers admits that the breadth of training is not as wide as it might be, which could limit the experience of young lawyers. 

‘Solicitors are funnelled into a particular area the moment they qualify. It’s partly driven by economics. Training contracts are not perfect but I’m sure there are things we could do to improve. We’re not trying to set something in stone and say that’s how it should be. What we’re saying is take the best of something rather than saying we’re going to change it completely.’

Inefficient monopoly

Perhaps more than any other legal personality, Smithers has appeared in the national press to ?rail against recent rises in civil fees, the unconscionable criminal charge, and court closures. While the government has argued that the justice system must start paying for itself, Smithers counters by highlighting that the courts are an inefficient monopoly.

‘I don’t have a choice in how much they cost,’ ?he says. ‘Is the court system running in the most efficient way? Judges sit relatively short hours, they can turn up to court, the witnesses or the prisoners aren’t there, or the papers haven’t been served. The cost of HMCTS is what it is with those inefficiencies.’ 

Smithers has previously opined that it would be wrong in principle for the courts to be run on a ?profit -making basis by the government. ‘I don’t think that’s the way to run our justice system, which is central to what it means to be British. ?That sense of justice and fairness is all part of what makes us the nationality we are, and this really militates against that, which is a concern,’ he adds.

‘This is one of the reasons why we’re talking about it so much and trying to raise it in the public consciousness. It’s all very well lawyers talking to lawyers about it. We all get the arguments but we’ve got to get that message out. People go to the NHS, they use the education system, but not everyone uses the legal system. They don’t realise they’ve got its protection all of the time. It’s a hard sell but we’ve got to keep on going.’

John van der Luit-Drummond is deputy editor for Solicitors Journal @JvdLD john.vanderluit@solicitorsjournal.co.uk