I doubt there was much of ‘that lovin’ feeling’ at the Law Society on Valentine’s Day. Despite all its efforts to woo the prime minister and his henchmen from the Ministry of Justice, it was defiantly excluded from the much-publicised whiplash love-in at Downing Street on Tuesday. Only very special chosen ones, all insurers, were invited to gaze misty eyed at ministers as they played footsie under the table and pledged to join together to make their world a lovelier place.
It’s probably of little consolation to the Law Society that it never had a chance. When the high priest of this unholy union, the prime minister, says it’s the insurance industry that ‘is there to help when we are at our most vulnerable and at greatest need’, nothing the much-maligned defender of lawyers’ vested interests could say or do was going to have much impact.
The Law Society doesn’t seem to have grasped that facts and evidence have little to do with government policy making. That’s not quite as Machiavellian as it sounds. Most facts can be interpreted any number of ways and so what really counts is not necessarily the right decision, but the decision that upsets as few people as possible and certainly not the powerful ones.
The fact that there isn’t a compensation culture, as a whole host of evidence, including the government’s own report by Lord Young shows, is neither here nor there. What matters to the government (and Jack Straw) is that insurance premiums are too high. And what matters even more to them is that if they can find a way to reduce them, they will be making the biggest possible number of people happy, because we are all fleeced once a year to keep a car on the road.
That is at least part of the reason why it was the insurance industry and not the Law Society that was invited to be the prime minister’s Valentine. We may all be a bit sceptical as to whether a consequence of banning referral fees and cutting legal costs in personal injury cases will be reduced premiums. We may all also be a bit cynical about the prime minister’s assertion that we can rely on our insurer when we are in need. But for now he has their commitment and I guess he thinks that’s enough.
It has been clear for some time that government ministers, at least the ones concerned with justice issues, have felt far more at home and comfortable in the company of the insurance industry than they have with lawyers. I am sure others will come up with their own suggestions as to why this is, but I wonder if it has anything to do with the generally negative impression people seem to have of the legal profession?
This dislike is not new. Shakespeare famously wrote in Henry VI part 2 ‘the first thing we do, let’s kill all the lawyers.’ Was this a bit of light relief, a joke that even villains think they are better than lawyers, or actually a veiled compliment acknowledging the profession instils justice in society? Who knows, I’m not a literary scholar, but he didn’t, as far as I know, write a similar line about doctors, so there must be something about the very nature of being a lawyer that the rest of us take against.
I don’t think it’s because using a lawyer is predominantly a distress purchase. Going to the doctor is pretty distressing yet most people tend to hold doctors in quite high esteem. Maybe it’s because, as David Allen Green put it, the very ‘stuff of law consists of words and coercion. Lawyers, like wizards and witches with spells, believe that certain words when set out in formal and learned ways can have particular consequences’.
Far be it for me to disagree with someone as revered as DAG, but I am rather of the opinion that lawyers actually use those ‘certain words’ to cover up the fact that a lot of what they are doing is really quite straightforward and logical.
No, I think it is probably more to do with money. I don’t think lawyers are particularly greedy, nor are there nearly as many fat cat lawyers as the press might have us believe, but I often get the impression that lawyers view with a whiff of distaste the idea that what they do is commerce. And yet getting lawyers involved in any kind of dispute, whichever side of it you are on, invariably escalates the costs, often to the point where you will settle even if you think you are right.
Jerome K Jerome put it best, in Three Men in a Boat:
‘If a man stopped me in the street, and demanded of me my watch, I should refuse to give it to him. If he threatened to take it by force, I feel I should, though not a fighting man, do my best to protect it.
‘If, on the other hand, he should assert his intention of trying to obtain it by means of an action in any court of law, I should take it out of my pocket and hand it to him, and think I had got off cheaply.’
As I said, the facts about whiplash claims don’t matter. The reason the legal profession was excluded from the insurance summit is because the Law Society hasn’t been playing the right game, or at least it hasn’t been paying any attention to the rules. People, rightly or wrongly, don’t have a very high opinion of lawyers and, on the whole, don’t have much of a response to the noble idea of access to justice (until, of course, it’s denied them).
On the other hand, while they don’t much like insurers either, they have to buy insurance and having to pay less for it will be an instant winner. For all the nefarious motives we may wish to attribute to Cameron on this one, ultimately he’s been driven by the need to please as many people as possible as much of the time as possible.
It is, absolutely, a tragedy that the resulting policy will jeopardise access to justice for countless injured people. That is as much lawyers’ and the Law Society’s failure as it is the government’s.
QualitySolicitors
Louise Restell
Interesting post; there’s no doubt the tide has turned against the sector in this instance. What battle could personal injury market choose next? ELTO and Employers’ Liability Bureau would be worthwhile and potentially profitable.
As a Tory, I’m sorry to say that the MoJ has a very unimpressive team. The legal profession was initially hopeful about Ken Clarke on the grounds that he is a barrister, but despite his considerable success as chancellor in the past, he has not done well. As for Djanogly, it is puzzling how someone with so little interesting in or understanding of justice can be a minister in that department.
On the plus side, Dominic Grieve is an impressive Attorney General, and has shown himself ready to stand up for the rule of law. Perhaps we’ll see him at the MoJ in future?
Agree completely on all counts, see cross-party consensus can be achieved!
Consider, for a moment, the idea that there is a disconnect in the public mindset between Law and Justice.
The Law is the The Law… More or less (see later point)
Justice, on the other hand, is a far more nebulous concept, based nominally off the idea of what is Just and fair.
If a murderer who is quite obviously guilty is acquitted on a technicality, then The Law is satisfied, but Justice is not. The defence counsel, of course, have a professional obligation to seek the best possible outcome for their client, but it still leaves a sour taste in the mouth of those who were bereaved (to say nothing of the frothing outrage inevitably to be found in the tabloid press).
This does, of course, tie into the “mystical” nature of law – A solicitor may argue one interpretation of a word one day, and be arguing the opposite interpretation of the same word in the same statute the very next day, thus leading to allegations that the law was deliberately drafted to obscure the point and make more work for the legal profession.
Finally, here’s some questions I’d like to pose to other commenters.
* How far does the need to advocate cases where the law is bad (cf Libel) reflect badly on the lawyers who do so?
* Does our adversarial legal system inherently foster resentment of lawyers?
Very good point. And I wonder whether it is not just the public at large but sometimes the Law Society that is confused about your law vs justice point. Perhaps it is their inability to explain this difference or to address it in their campaigns that is at the root of their lobbying problem.
Louise – brilliantly put