Deregulating the law professionA conference on the future of the bar in England and Wales needs to ensure that those working in law can keep their independence
Barristers' leaders are holding a major symposium on the future of the bar in England and Wales. Photograph: Doug Menuez/Getty Images
Lawyers are not alone in wondering whether they'll keep their jobs when the cuts begin to bite. But, unlike most professionals, they have little idea what state their profession will be in by the time of the next general election in 2015.
Tonight barristers' leaders are holding a major symposium on the future of the bar in England and Wales. The chairman of the bar council, Nicholas Green QC, will report back on changes the bar has made to meet the new regulatory requirements imposed by Labour.
"Our task is to modernise the bar and to ensure that it emerges from the recession all the stronger," Green is expected to say. "I have no doubt that we can do this."
His counterpart at the Law Society, the solicitors' leader Robert Heslett, fears that the planned reforms will deprive the legal profession of the independence that has given it a "sky-high reputation across the world".
This legal equivalent of the deregulation big bang is popularly known as "Tesco law", although there is no suggestion that the supermarket chain is planning to stock up on lawyers and sell legal services cheap.
As things now stand, solicitors and barristers will be allowed to work in so-called alternative business structures from October 2011, accepting outside investment and even operating under external ownership or as public limited companies. There has been much speculation on whether the coalition government will slow down the rush towards deregulation. No doubt that depends on whether it would save money.
Although two main professional bodies are "approved regulators" under the Legal Services Act 2007, they were required to set up their own regulatory bodies – the Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB). It was not clear how independent the SRA and the BSB were meant to be.
In a major speech last month, Heslett admitted that the Law Society had gone "the wrong way in the early years" by implementing an "incredibly destructive process of absolute separation" between its representative and regulatory roles – something that was not required by the legislation. "An artificial separation led to huge misunderstanding on both sides which bred mistrust and threatened the whole effectiveness of regulation," he said.
The SRA has now moved away from a prescriptive set of rules to one meant to give solicitors some freedom in the way they meet statutory requirements of independence and integrity. This is a system of "outcomes-focused regulation", under which solicitors will be given a list of desired outcomes with guidance on what they mean.
But it's a huge change, and one that Heslett says should not be introduced in little more than a year from now. He is also worried that the Legal Services Board, set up by Labour as an overarching super-regulator, is too close to government and might even "seize control of regulation for itself".
In the beginning, there were also tensions between the Bar Council and its regulatory arm. But now that the BSB is chaired by Baroness Deech, an academic lawyer with decades of experience in running diverse public bodies, there seems to be much greater respect on both sides. Although the BSB operates under delegated authority from the bar council, the representative arm of the profession regards its regulator as genuinely independent.
Deech, too, will present some very clear ideas tonight on how the bar must modernise in order to survive as a discrete profession in the changing legal landscape. Like Green, she is convinced that an independent referral bar is essential to the rule of law.
This is not just the restructuring of a much-maligned profession; it's a reform that affects us all.
Joshua Rozenberg is a freelance legal writer, commentator and broadcaster
http://www.guardian.co.uk/law/2010/jun/ ... ar-council