In his first major speech as Justice Secretary on Monday, among other things Michael Gove started a negotiation with the legal profession on their "social responsibility". Specifically, he said that “those who have benefited financially from our legal culture need to invest in its roots . . . I believe that more could—and should—be done by the most successful in the legal profession to help protect access to justice for all.”
For the moment, he seems only to want lawyers to volunteer more of their time to serve those who cannot afford to pay for legal advice or representation. But Gove made it clear that the status quo is not defensible. The profession won’t precisely be negotiating with a gun to their heads but the Justice Secretary has certainly taken off his jacket to show them the holster.
Requiring suppliers in a market to fulfil social responsibilities is quite common. Royal Mail, for example, like postal service providers throughout Europe, has a universal service obligation. This means it is required to deliver post six days a week to every address in the country at the same price. It can’t cut off service due to the lack of demand or high cost. Banks, building societies and other firms providing loans and credit are required to pay a debt advice levy. Regardless of what they may themselves do to advise their customers or provide financial education in schools and colleges, they also have to provide a total of around £35m per year to the Money Advice Service.
Lawyers may complain, however, that some of them specialise in areas where there isn’t a lot of demand from less wealthy people who can’t afford to pay for advice. There aren’t many low-income people who need the help, for example, of an expert on international commercial arbitration. But then any new regulation for the profession could take the form of a "pay or play" obligation: either provide a minimum number of pro bono hours or pay into a common fund which contracts the advice or representation from those better placed to provide it.
A more salient criticism may be that lawyers already provide a lot of pro bono work. The most recent estimate from the Law Society is that the value of pro bono work in 2014 was £601m, equivalent to 2.8 per cent of the yearly turnover of all solicitors’ firms. That’s a substantial "levy", paid voluntarily.
But the trouble for the government with voluntary arrangements is that it can’t direct the advice or representation that is provided. In other words, the legal profession may choose to support individuals appealing against government decisions, rather than what Ministers may regard as more deserving cases. A compulsory levy would make it easier for the government to contract for advice and representation that plugs gaps and protects it from criticism.
The ideal solution—to preserve the independence of legal advice and representation while meeting the social need—would be for the profession to move first. There was a previous attempt in the early 1990s by the Law Society to create a levy on the revenues or profits of law firms. They sought voluntary agreement to it but didn’t get anywhere and so quietly dropped the plan. Gove has other battles to fight. The profession would probably be allowed to claim the credit for resurrecting the idea of a levy—perhaps paid to an independent body directed by representatives of the legal profession rather than the government—and resolving the standoff peacefully.
