Editors' Blog

An unnecessary risk

Posted 4/06/2007 by Alex Novarese

'Concurrence' is an unwieldy concept for the Government and legal profession to publicly lock horns over but it has happened.

Perhaps 'independence' rather more succinctly describes the tangle at the centre of the letter written on 1 June by Bar Council chairman Geoffrey Vos QC and the senior partners of the entire magic circle, calling on the Government to relent over plans to have the Lord Chancellor solely appoint senior members of the Legal Services Board.

The letter (the full text of which can be seen below) presses the Government to accept the recent amendment to the Legal Services Bill by the Lords, which would see the Lord Chancellor make appointments with the “concurrence” of the Lord Chief Justice.

The understandable line of attack being that the perceived threat to the profession’s independence risks impacting on the £2bn in legal services exports UK firms make every year. This is because of mounting concerns that have been voiced abroad - notably by the German bar and the CCBE - regarding UK Government interference.

The senior lawyers behind the letter claim convincingly that this is no theoretical debate, with Vos stating that he “can’t overestimate the level of concern” he has encountered regarding the perceived threat abroad to the independence of the UK profession.

The letter is also interesting in illustrating the frustration that senior members of the profession feel regarding the Government’s unwillingness to listen regarding the Legal Services Bill.

Asked why they have chosen to go public with their concerns, one of the letter’s senior partner signatories says: “Frankly, this is not for the want of having spoken privately to Charlie [Falconer]” - sentiments broadly echoed by Vos.

That also partly explains why the letter has been addressed to well-regarded Treasury minister Ed Balls, who has been closely involved with Chancellor Gordon Brown’s High Level Group on Financial Services.

This frustration is all the more galling given that the profession has supported the Bill, even the Bar Council, which has wisely reversed its stubborn resistance of several years back.

In this context, senior lawyers are bewildered as to why the Government should be so inflexible over an issue that has no obvious political advantage. Tensions have been aggravated as the concept of the Government having sole power of appointment to the Legal Services Board was absent from the original Clementi proposals and the following White Paper.

As one senior partner comments: “I just can’t see what the upside is for the Government. It’s an unnecessary risk. The suspicion is that this is something that has been put in by some draftsman and now they are digging their heels in.”

A fair point. With the Lord Chancellor still wrangling with the judiciary on similar independence concerns regarding the troubled birth of the Ministry of Justice, it seems a pointless battle-front to open.

Today’s Commons debate will demonstrate whether the Government is willing to go to the wire on this one. Should they reverse the Lords amendment, the Government could in theory be overturned again by the Lords. That would create political embarrassment out of all proportion to the capital to be gained from reforming something as obscure, in saloon-bar debating terms, as legal services. In such a scenario the Government would have to accept the amendment or junk the entire bill.

It seems the legal profession is not the only one facing an “unnecessary risk”.

alex.novarese@legalweek.com