Freedom fighters to the barricades

A legal profession regulated by layers not lawyers … Independence in tatters … Judges and trade union reps rise-up against proposed national reforms … The English legal system remains strangely unthreatened by non-lawyer regulators … Samantha Bowers reports

We’ve inherited so much from the Brits, but an open mind on regulation of the legal profession isn’t one of them.

The Inkies have had the press in a tizz of late with their doom and gloom predictions for law and justice in this country should governments be allowed to appoint the majority of the new National Legal Services Board – the rule-maker and regulator to be established under the national legal profession reforms.

The judges say the setup under the draft Legal Profession National Law, announced on May 14, would leave the rule of law in tatters because it gives the attorneys general control over the legal profession (though one wonders whether the potential for too much lay involvement isn’t rubbing them up the wrong way a little too).

The Australian floated Chris Snow’s suggestion that Australia adopt a regulatory model like the new Legal Services Board developed in England and Wales as part of their own regulatory reforms.

Snow is a victim of the defunct fraudster firm Magarey Farlam.

In a nutshell the English system looks like this:

• The LSB is a non-departmental public body, accountable to parliament.
• It’s responsible for overseeing day-to-day regulation by the “approved regulators” (the professional trade unions).
• Both the LSB and the regulatory arm of the approved regulators must have a lay majority. The LSB also requires a lay chair.
• The LSB’s chair/members are appointed by the Lord Chancellor (a political office, although subject to a statutory duty to uphold the law). When making appointments, the Lord Chancellor first has to “consult” the Lord Chief Justice (but doesn’t appear to have to listen to him). 

The profession in Australia is steadfastly unimpressed with the motherland’s structural approach to legal profession regulation.

Maybe we know something they don’t; if so it would be nice to discover what it is.

* * *

The Australian draft law envisages the Standing Committee of Attorneys General selecting most of the National Legal Services Board’s five to seven members.

The judiciary and the profession would each get to nominate three members, but only one from each group (also chosen by SCAG) would make it onto the board.

We are told this is dire straits for democracy, justice and life as we know it.

South Australian Chief Justice John Doyle declared:

“No promises of goodwill and consultation can alter the fact that the governments of Australia will appoint the members of the board, and can remove them. The government would be entitled to appoint those whom it thinks will implement the policies that it favours…

I have taken this opportunity to raise the matter, because I regard it as a threat to the role of the profession, and to the independence of our system of justice.”

Words that strike fear into the hearts of men. And his views seem to be shared more or less unanimously by the continent’s major legal bodies.

Doyle CJ’s comments assume SCAG appointees, by definition, could not be independent.

Glenn Ferguson, president of the Law Council, didn’t think it would help even if SCAG appointed only lawyers and judges to the board.

They have to be our lawyers, not their lawyers.

Tom Bathurst, from the NSW bar ‘n’ grill, said the rules made by the new board could well turn out to be satisfactory, but it couldn’t be said, “it’ll be all right”.

“Take Fiji. Look at what’s happened to Fiji since the government undermined the independence of the profession there,” he said.

Prez of the Law Institute of Victoria, Steve Stevens, agreed:

“We have a good system of government in Australia and we can say that goodwill will prevail and commonsense will prevail. But we can’t leave it open to manipulation in the future.”

* * *

Interestingly, independence was also a big concern – for similar reasons – in England when regulatory restructure was first canvassed there in 2004.

In its response to a preliminary review of the regulatory framework, the England and Wales Law Society cautioned:

“The Law Society believes that a paramount consideration of the review must be the retention of a legal profession independent of the executive. An independent legal profession is an essential feature of a democratic state.”

Sounds a lot like Chief Justice Robert French’s submission to the Council of Australian Governments (COAG)’s taskforce last year:

“Members of the Council [of Chief Justices] have asked me to express their concerns that any proposed [regulatory] model must maintain independence of the legal profession from the executive government. That independence is a corollary of the independence of the judiciary.”

Wayne Martini, the CJ of WA, said:

“The surrender of the independence of the profession to control by executive government is too high a price to pay.”

Victoria’s Chief Justice (Earl) Warren intimated that supreme courts might not recognise the national legal profession admission system.

The English profession seems to have resolved its concerns by requiring the Lord Chancellor to consult with the Lord Chief Justice about LSB appointments, as a “safeguard”.

In a Law Society briefing it said:

“The involvement of the LCJ further helps to ensure that there can be no arbitrary elements in the procedure, and that no appointment is political in nature.”

They don’t seem to have had any difficulty with the requirement for lay majorities either.

In contrast, NSW Chief Justice Jim Spigelman in February said there was only one way the board could work:

“The National Legal Services Board should consist of a majority of members appointed by professional associations and a chair appointed by the Chief Justices Council. Any other kind of structure would, in my mind, disentitle legal practitioners from describing themselves as professionals.”

Spigelman was also critical of a proposed national scheme for handling judicial complaints.

“If one wishes to promote a national judiciary this is the last thing one would turn one’s mind to. It is not clear to me why it has become the first.”

When Justinian asked whether, in principle, it would be okay if SCAG and the judiciary/profession each appointed the three board members, with the seventh appointed jointly, Steve Stevens from the LIV replied:

“We need to have a clear majority.”

The LCA’s Glenn Ferguson told us there was “no way” any candidates nominated by the judiciary and the profession wouldn’t be “outstanding people” for the job.

This may be so, but it’s unlikely to comfort consumers, particularly if they already have a perception (rightly or wrongly) that lawyers aren’t tough enough on their own.

Tom Bathurst said:

“When people talk about that perception, with all due respect they should look at reality.”

Stevens said allowing SCAG to choose the majority compromised the “perception” of the profession’s independence.

But didn’t Bathurst just tell us to look at “reality”?

* * *

Having said all this, England’s open mind on regulation and independence may be set to narrow.

According to Stevens, a few months ago the England and Wales Law Society indicated it was increasingly concerned about whether the current system was suitable.

Glenn Ferguson thought the English system was “proving to be complicated and expensive” and was “not a suitable model for regulating the legal profession in this country”.

Everyone is invited to comment on COAG’s draft Law until August 13.