A persistent challenge to the professions in the current phase of so-called ‘Broken Britain’ is what to do about two groups: first, those who are forced to carry out their own professional services themselves without any help; and, second, the role of unregulated providers.
It is obvious that if the government has no resources to invest in the sectors in which the professions work, then citizens will take action to protect their interests without assistance, and unregulated providers will spring up to fill the gap no longer filled by professionals.
This is not restricted to the legal profession. Here first are a few recent instances from the health sector.
Last year it was reported that some of our fellow citizens – 10% of the people sampled – had resorted to DIY dentistry, including pulling out their own teeth, because of lack of access to a dentist.
And just a few days ago, a doctor complained that the NHS was advertising people who were not doctors as a ‘physician’ (not a protected term, rather like ‘lawyer’) and ‘cancer specialist’ to whom patients would be referred.
This all sounds depressingly familiar.
We have our own litigants in person (LIPs), the equivalent of those who are obliged to pull their own teeth. A few weeks back, the Law Society – together with Support Through Court, a charity which helps people who are facing the civil and family courts alone – ‘lifted the lid on what it’s like for people navigating the court process alone’.
The figures for family courts, broken down into designated family judge areas, were given by the government last year in response to an MP’s question, and are hair-raising. Lack of representation is doubtless in turn contributing to the other ‘Broken Britain’ symptom, court backlogs.
To take just one area, Medway and Canterbury, there was a 236% increase in backlogs and 290% increase in unrepresented parties between 2016 and 2023. In public family law cases in Medway and Canterbury, 30% are unrepresented.
Many of the family cases are eligible for legal aid, but those eligible can’t find a legal aid provider with capacity to take on new cases. Others are not eligible for legal aid, but don’t have the resources for private representation. Many cases involve domestic abuse, which grow into emotionally distressing cases, further exacerbated if people are forced to represent themselves.
The obvious answer, as expressed by the Law Society, is to uprate civil legal aid fees and uprate civil legal aid means test eligibility. But does anyone really expect that to happen, whichever party wins the general election?
As for unregulated providers, the Competition & Markets Authority (CMA) has just been consulting on whether to provide compliance guidance for unregulated businesses providing will writing, online divorce, and pre-paid probate services. This comes after its investigation into will-writing and other unregulated legal services last year.
What is the best advice to give unregulated providers in these circumstances? ‘Tell your client to go and see a solicitor’? This is unlikely in view of the CMA’s belief that ‘unregulated providers very often offer services that are innovative and convenient for consumers, and that can be cheaper too.’
The draft guidance under consultation shows where some of the problems might lie. So, under will-writing, the CMA proposes to the unregulated:
- Don’t make misleading comparisons when marketing your services, for example by comparing the (higher) cost of a bespoke service provided by a solicitor with your (lower) cost, omitting the relevant fact that the higher cost reflects a very different service; and
- Don’t lead consumers to think that by purchasing your service they are engaging a firm of solicitors or other regulated legal professionals on their behalf if this is not actually the case, or that the service provided is otherwise benefitting from regulatory oversight if that is not the case.
What is the best course of action? To raise the standard of unregulated providers to ensure that they do less damage; to bring them into some sort of regulation; or to keep them as they are in the hope that it will drive more people to where they should be going (solicitors)? The public interest argues in favour of the first two options.
The two main parties’ manifestos have little or nothing to say about these issues.
The Conservatives will expand the Pathfinder Courts pilot in family court proceedings and continue mediation vouchers to help more families resolve private law child arrangements without an acrimonious court battle. They will expand the provision of legal aid at inquests related to major incidents where the Independent Public Advocate is appointed or in the aftermath of terrorist incidents.
The Labour Party will provide legal aid for victims of disasters or state-related deaths.
Help will not be coming quickly when it comes to LIPs and the unregulated. Things will likely grow worse for a while longer.
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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