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