Lord Falconer – 2003 Speech to the Law Society Council

Below is the text of the speech made by Lord Falconer to the Law Society Council in London on 17th December 2003.

I’m delighted to be here today. Frankly, I’m also astonished to be here today.

Delighted because of the opportunity to speak to the Council of the Law Society. Astonished because I understand that I am the first Lord Chancellor ever to do so.

However, all I can say is that, given my declared intention to abolish myself, you struck well in getting the Lord Chancellor here for the first time because – depending on the will of Parliament – the first time may also be the last time.

I want to do two things today:

Firstly, to say something about that reform, and all the reforms we’re bringing forward, across the whole range of the justice system

And secondly, to say something – as your Chief Executive, Janet Paraskeva, has asked me to do – about how I see the future of your profession within that landscape of reform

But before I do so, could I just take this opportunity to thank Janet, and indeed this Council and the Law Society as a whole, for all of the positive contribution you make to our justice system. In Janet you have a first-rate chief executive, and though we are bound to take different views from time to time in our discussions, I believe both you and I would say that relations between the Society and me and my department are positive, constructive and helpful and I very much welcome that, and thank you for it.

The programme of constitutional reform we have already carried out in government since 1997 is a large one. But we believe there is more to do.

In The Queen’s Speech a few weeks ago, we set out our legislative agenda for this year. We have made provision to legislate on the policy proposals we put forward immediately on the creation of the Department for Constitutional Affairs That includes:

– the abolition of that office

– the removal of the Law Lords as the final appellate committee in the House of Lords

– the creation instead of a proper Supreme Court

– the ending of my power to appoint all judges in Britain, and of my role as the head of the judiciary

– the establishment of an independent commission to recommend judicial appointments

This is a big programme of reform and going with it is also further reform of the House of Lords.

But it is reform for a purpose. It is reform to help create a better system of justice in Britain. I’m proud of our justice system in Britain. I flew in this morning from a short trip to the USA, and though there are many fine things about the American justice system, I think we here in the UK can hold our heads up high about the British justice system. It is good. It does work. But just because it is good and it does work doesn’t mean that we shouldn’t seek to improve it. I strongly believe that the best time to reform and improve is not at a time of crisis, but from a position of strength and stability. And that’s what we intend to do.

Could I spend the rest of my time talking to you today to about the part solicitors play in the justice system. I want to touch on three main areas:

– how things seem to me now

– my own view of where we need to go

– and as a result, what I think we should do to get there.

Could I say at the outset that I believe and believe very strongly that the vast majority of transactions undertaken by lawyers serve the public very very well indeed. The public rightly look for good service from the legal system and from the lawyers within it, and in the vast majority of cases that’s exactly what they get. I believe that the profession in general, and of course solicitors’ part in the profession, can in the main consider that they do a good job, and do it well.

But at the same time, there’s no doubt that for too long, many people have found interacting with the legal profession daunting, or sometimes more than that: a complex, challenging, sometimes even alien experience, with lawyers sometimes operating in a manner and in an environment a world away from most people’s lives.

The significant areas of difficulty seem to me to be these:

– unmet need

– unmet demand

– customer care

– and associated with this, barriers to entry for people who wish to become solicitors.

It’s clear to me that there are customers’ needs which the system is not yet meeting. There are people who need advice, who need representation, who are not getting it. The National Periodic Survey of Legal Needs produced by the Legal Services Research Centre for the first time gives us hard evidence of unmet need. A need for help and advice on welfare problems. On family problems. It shows us the need for help and advice on problems arising from deprivation: on housing, debt, benefits, employment, immigration, and community care. People facing social exclusion often have a number of inter-related problems which need expert independent advice. Early intervention to tackle such problems can really help. I’m sure that the results of the follow-up survey, to be released in the New Year, will reinforce this view – and demonstrate clearly that there is unmet need to which the legal system must respond.

But there is unmet demand, too. Customer attitudes are changing. We should and do welcome that. Customers today demand more choice. Better prices. Higher quality. And again that’s quite right. We need to know in detail what people want from the legal system. What their unmet demands actually are.

If, for example, we have Tesco law, will we discover that more people have a personal injuries claim ? That more people are victims of domestic violence? And if we do, what does that tell us about the current market for legal services ? Why are these people not going to solicitors at the moment? Why are some Personal Injury claimants choosing to use the unregulated businesses that have been springing up? And as we respond to these needs, we need to ensure that, in giving the customers what they want, we do it in a way which properly protects their interests. The link between regulation and better services is absolutely crucial. We must get the balance right.

In all this, the customer is vital. That means meeting customer need and customer demand. But it also means taking action when things go wrong.

Customers must not only be able easily to access the quality services they need at competitive prices, they must also be sure that, if things go wrong, their complaints will be handled quickly and fairly. Solicitors need to handle complaints properly and, if they don’t, the OSS needs to respond, and to respond quickly within a reasonable time.

I readily acknowledge that the majority of solicitors not only do high quality work but are properly responsive to complaints. But the few who are still unresponsive or take too long distort customer perceptions in a way which impacts on the whole profession.

I readily acknowledge that the Society has made, and continues to make, considerable efforts to improve its complaints handling regime. But more must be done. If the unhelpful, the inefficient, know that a complaint to the Law Society will be handled quickly and efficiently, they will be more anxious to avoid the complaint getting that far.

I am watching with interest the recent improvements in turnaround by the OSS, but there too the pressure for sustained, embedded improvement must be maintained. Maintaining that pressure is for you – but, it is also for me.

Failing the customer not just once, through the delivery of a poor service, but twice, in failing to put the original wrong right, or address legitimate complaints swiftly and fairly cannot, and must not, be allowed to happen.

To meet the needs of a diverse customer base we will also require a diverse profession. Talent must be drawn from all quarters of our society. We must do all that we can to ensure that the legal profession is open to the most able people in our country.

So we need to look critically at barriers to entry for solicitors. How can we drive down the cost of qualifying? Is there more the profession can do to help with those costs? It is in the interests of the profession to match the diversity of their customers with the diversity of their lawyers, so it is surely also in the interests of the profession to help bring this about.

Cost is a problem. So too is the availability of training contracts. I am setting out a vision of a much more competitive, much more responsive profession which is good for consumers. But better competition also benefits the providers by expanding markets; and with that expansion I hope we will see many more training opportunities, opportunities which are open to the widest range of people.

I believe that to tackle all these issues, the legal system and the role of the solicitor must change. Going forward, the role of the solicitor will only be judged to be working effectively if there is clear and demonstrable evidence that solicitors are continuing to serve the public well.

So I believe that the solicitors’ profession should:

– meet the needs and demands of the public looking for legal services by providing advice and services of real quality

– reach those parts of society which can most benefit from advice, irrespective of their means

– and be both diverse and representative, so that it is well equipped both to serve the public properly, and to play its full part in both the legal profession and the justice system, in particular by providing a pool from which Judges are appointed

How can we best achieve this vision ? How can we, working together, secure this better future for the solicitors’ profession within a legal framework, a legal system, which works better for the public?

Again, I think there are three key issues:

– regulation

– legal aid

– customer care

How solicitors provide services to the public – in what form, and at what price – is inextricably linked with regulation. Is the balance right between regulation and the needs of the customer? We have to find an answer to that question in a way which provides better service, consistent with proper consumer protection.

A diverse, flexible and responsive legal landscape will require a flexible, responsive and accountable, regulatory regime.

I know that, once again, the Law Society is working to meet this need. I welcome the significant work in simplifying the rules of conduct, for example, that has been undertaken by your Regulation Review Working Group. But more needs to be done. Despite welcome steps forward, current users of legal services, whether at the consumer or business end of the market, may not always be served by the existing model of regulation. We know that it can be over complex and can prevent growth and innovation.

So what we needed was a root and branch examination of the system as a whole, to establish what works well and what needs to be changed.

That’s why I’ve asked David Clementi to undertake this challenging task. David will report by the end of 2004. Ahead of that, he will issue a major consultation document early in the New Year. I want to see the Law Society supporting and contributing to this review. There can be no sacred cows in seeking to deliver the high standards of services that customers want.

But we must not let the welcome fact of the work of the Clementi Review put a stop to all progress in the meantime. We need to work together to examine areas where change for the consumer’s benefit can be delivered in the short and medium term. Multi-disciplinary partnerships, the role of employed solicitors, the probate market – these are just some of the areas we should look at quickly and imaginatively to see how we can respond rapidly to consumers’ needs whilst, of course, ensuring that their interests are properly protected.

Turning to legal aid, I attach particular importance to the legal aid work carried out by dedicated and conscientious lawyers and advice workers. I know their work is not always appreciated. But it is of central importance to our ambition to be a society that protects the rights of the most vulnerable. I intend to ensure that we continue to support the vital public service they provide in tackling social exclusion and in protecting the fundamental rights of some of the most vulnerable members of society.

I doubt that any one would deny, however, that there are problems with the legal aid system. We are all working to find suitable solutions. I know you in the Law Society have been working hard on a strategy for legal aid, and I very much welcome your contribution to the debate in this vital area.

But the task of dealing with the problems with legal aid is made all the more difficult by the fact that there is unlikely to be any increase in funding. Our budget this year is some £2 billion. That’s a big bill by any standards – £500 million more than in 1997/98 when the Government came to power.

The Government has a responsibility to ensure that we are getting the best possible value for money from the legal aid system. We must therefore seek to minimise our transaction costs and reduce bureaucracy on the Government side. In order to develop more robust controls, we need a far better understanding of why the cost per case has increased in some areas. We need look at the legal processes which drive legal aid costs, as well as rigorously cost all policy change so that we can estimate and fund consequential legal aid costs.

We are also consulting on proposed changes to the Criminal Defence Service. The aim of the changes are to better target resources and to get real value for money by removing from the scheme less serious matters. No final decisions have been made on which proposals to implement, although I have been considering responses received during the consultation period before making final decisions on what changes to make.

Finally, customer care. Once lessons have been learned we need to share that new knowledge with others – particularly with customers. I very much applaud the Clients Charter that was introduced earlier this year. But I want you to do yet more: more to ensure that the customer can make positive choices based on good information. A simple example of this is that yet again, ‘delay’ and ‘lack of response’ were the main causes of complaint referred to the Law Society last year. How many of those issues would have been resolved if the customer had been better informed?

I believe that the Society has the potential to bring about significant changes and improvements to practices and policies by working closely with others. It has also demonstrated an ability to adapt to new environments and meet new challenges. The appointment of a Legal Services Complaints Commissioner will provide the Society with a further opportunity to showcase these skills in a prominent and meaningful way. The role of the LSCC will bring a new perspective to how complaints have previously been examined – a perspective I believe which will benefit both the organisation and the complainant. I look forward, with the Society, to a time when the legal profession is heralded as a model of excellence in customer care.

There are, of course, other issues, such as the Community Legal Service, for instance. I believe that the CLS is a success. I think it has an important role to play in ensuring the responsive and flexible delivery of legal services. Partnership coverage across the country is now extremely close to 100% and continues to progress far ahead of the government’s own targets. The take-up of the Quality Marking scheme has been exceptional.

But the CLS cannot stand still. We are continuing to move forward in a number of ways. If the Community Legal Service is to reach its full potential we realise that we need to continue to work hard to place legal and advice services at the heart of the government’s social inclusion strategies. We are also working with frontline staff: for example, to provide guidance on the CLS for Job Centre Plus staff. And an independent Review of the Community Legal Service is already underway which will provide a road map for the CLS for the next few years.

I know all of this, coming as it does within a wider programme of reform of the justice system, is a big agenda, both for you, as a Council, and for the solicitors you represent. And for us as a Government.

But I know as well that you will want to work to achieve it. Because I know that you want to represent solicitors as well as you can. Because you want to make the legal system in which they operate work as well as it can. Certainly, for those working in it. Of course their work must be properly recognised and properly rewarded. I know there are important financial and other issues to be addressed. But most importantly of all, for those whom the system, and all those working within it, including me and including you, are there to serve: the client, the customer, the public.

I know that is a shared goal. A shared objective. And I’m confident that you know and believe that the best way of reaching that goal is by working together. That’s always hard. It always needs patience, and co-operation. And sometimes, especially at times of real change, there will be difficulties along the way.

These are real challenges. Difficult challenges. But I believe that by working together, we can overcome those difficulties. We can resolve what problems we have. Because we want to meet the challenges which are there for us all: the challenge to improve choice, the challenge to achieve excellence, the challenge to promote innovation and the challenge to secure equality.