Falconer takes an axe to legal tradition

The Lord Chancellor has wasted no time in shaking up the Justice System. What will happen next?
 
IT IS ONLY weeks since Lord Falconer of Thoroton (Charlie to all) was catapulted into the office of Lord Chancellor. But he has wasted no time in taking an axe to the legal professionís constitutional framework. The scrapping of the ancient office of Lord Chancellor and the creation of a Supreme Court and a new independent judicial appointments commission are all policies to be implemented as quickly as possible.

Judges and lawyers are still reeling from the impact. But the new Lord Chancellor is unrepentant about the speed of reform. ìI donít think there has been undue haste. The right course is to make clear what you are going to do and then ó after consulting fully and properly ó then to do it. Far better to have clarity about the direction of travel and a clear and reasonably speedy execution of the decision,î he says. ìThe alternative is a long period of uncertainty.î

Clarity of direction is one thing that Falconer exudes. At ease with the media, with MPs or the public, he appears in consummate control of his brief. It is not a question of whether these plans will go ahead, he says, but how. The policy decisions have been made. Nor does reform stop there: this month a third tranche of measures will be published, when he outlines plans to divest himself of powers of patronage in appointing hundreds of vicars. The aim, he says, is to ìfree up the Lord Chancellor to focus on the job of being a minister with an agenda to connect with the publicî.

Delivery of services to the public is very much current Whitehall-speak. But in the new world of the Department for Constitutional Affairs, it means a fresh outlook. Falconer is keen to promote himself as a politician first (not a lawyer) and as a minister for consumers of law, not for the profession.

ìI believe that this is an area of government where real change is being delivered for the better, for the public, in providing help to more people who need it, in relation to public funding, in relation to the steps we are taking in opening up the market, in relation to making the courts ó criminal, civil and family ó work for the public.î

And there seems to be no time to waste. Three sets of proposals came out in July and consultation ends in November. Legislation will then be brought in ìas soon as possibleî. At the end of July he announced a full-scale review of the regulation of legal services under David Clementi, chairman of the Prudential, which could see a new legal marketplace, with lawyers and other professionals in one-stop shops and solicitors employed by supermarkets.

Falconer will not pre-empt the Clementi review. But the writing is on the wall for pure self-regulation. ìHow the legal professional bodies are regulated is very complex and based on a series of historical additions to the system. It is very difficult for the public to access, and it is not effective in either promoting a market that protects the consumer and promotes change . . . and also deals effectively with complaints from the public about quality of service and the conduct of solicitors.î

The system needs change, he says. ìAnd there looks like quite a strong case for bringing in an element independent of the professional bodies.î One possibility is a legal services complaints commissioner. ìThere is a sense that the processing of complaints by solicitors has been a considerable problem for the profession over a considerable time. Iíve not made a decision but Iíve made clear that all steps necessary should be taken to make complaints handling as effective as possible.î

The Clementi review will look at some of the last legal rules and restrictive practices ó whether, for instance, banks and building societies should offer conveyancing. Falconer is already opening up the probate market to financial bodies and this is likely to take effect by the end of the year. The conveyancing reform was fiercely resisted nearly 15 years ago when proposed by Lord Mackay of Clashfern, then Lord Chancellor. Now it looks certain to happen.

ìSubject to proper protections for consumers, I think that is the right direction of travel, itís the way the market is going,î he says. People now tend not to consult one solicitor on all their problems or aspects of their lives. ìMore and more they want to see the provision of these services in a convenient and accessible way ó thatís what the market is looking for.î

That includes solicitors being employed by businesses such as supermarkets, he says, the so-called Tesco law. He is a keen as the Law Society is, he says, to make that happen, but it will not mean the death of the high- street solicitor, who will remain to offer one of a range of services to the public.

If he is on side with the Law Society over ìTesco lawî, there are tensions over the funding of legal aid, where pay has been depressed and ìadvice desertsî have formed. Both he and the society see a need to reform legal aid, albeit differently. But their aims are the same. ìWe want a market in legal services that reaches places that have not hitherto been reached.î The State, he says, must provide funding to provide legal services ìfor those who canít afford it and that should be targeted on the socially excluded ó those who really need it. Side by side, the market should be freed up as far as possible, consistent with consumer protection.î

In the meantime, his focus is on dismantling the post of Lord Chancellor, creating a Supreme Court, appointing judges and considering the future of the QC rank. The Law Society favours scrapping the silks system but Falconer says that no decision has been made.

In the first hours of the brave new world of a modern, purely political Secretary of State for Constitutional Affairs, walls were pulled down in Selbourne House for the new ministerís office. It then became clear that he would have to continue as Lord Chancellor for a while longer: for one thing, he has to sit as Speaker in the House of Lords until peers decide what to do about that role. So Falconer still spends time in the famous Pugin-decorated apartments of his predecessor, and reluctantly dons his wig and gown to process into the chamber each day.

But he no longer sits as a judge and would rather be called Secretary of State. ìThe critical decision was that I would no longer be a Lord Chancellor who was Speaker of the House of Lords, head of the judiciary and a Cabinet minister,î he says. ìOf course it is going to take time to deliver that.î Meanwhile he will ìdeliver loyallyî the functions of the post he is abolishing. ìBut I am also putting myself forward as a mainstream public service delivery minister determined to make that public service work as well as possible.î