April 19 2024
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Has Grayling got a problem with evidence?

Has Grayling got a problem with evidence?

In saying ‘no’ to regulating will writing, it would appear that the Justice secretary, Chris Grayling, has something of a death wish. At the very least he is making it almost impossible for him to be left alone in a room with more than one lawyer any time soon. By brazenly rejecting the recommendation of the Legal Services Board he has not only ignored overwhelming evidence of significant consumer detriment but cocked an almighty snook in the direction of the broad consensus calling for regulation.

Still, at least Grayling is consistent in not passing up an opportunity to really annoy the legal profession regardless of who else might get caught up in the crossfire. In continuing the destructive slash and burn of legal aid he has shown a callous contempt for both the rule of law and those in need of legal advice and representation. In discounting concerns about the will-writing market he is showing how his deregulatory zeal cares little for consumer protection.

Grayling is not the first government minister to have a problem with evidence. Even this week the education secretary Michael Gove has been lambasted on Twitter for the ‘evidence’ on which he based his comments about the history curriculum, but I suppose at least he recognised the need to have evidence. The Justice secretary seems unconcerned about its importance.

I write as a convert to the regulation of will writing. Once upon a time I was somewhat sceptical about the loud hollering for regulation, which came mainly from the legal profession and its offshoot, the professional will writers. Lawyers calling for more regulation could surely only mean one thing: protectionism, barriers to entry and higher prices for consumers.

More to the point, there were as many problems with wills written by (regulated) solicitors as there were with those written by (unregulated) will writers.

I was quite sure the main problem was that not enough people were even writing a will. About six out of ten British adults don’t have a will and, even more worrying, those without children are more likely to have a will than those with children at home. The main reason is almost certainly because people haven’t got around to it, but why make this even less likely?

Research earlier this year for the Legal Services Consumer Panel showed consumers believe there is sufficient protection for them when they buy legal services, even though they don’t know what it is, and are content to pay extra for this peace of mind. This is hardly surprising. For most people, legal services are never going to be frequent purchases and will nearly always be accompanied by a stressful life event.

Despite this, Grayling blithely suggests that there should be ‘greater efforts made to educate consumers on the different types of provider and their respective protections and options for redress’. No suggestions as to how this might be done, and never mind that in the meantime decisions will be uninformed, with little shopping around, especially when it comes to less-educated consumers.

Responding to Grayling’s decision, the Legal Services Consumer Panel said: ‘This decision is extremely disappointing news for consumers and makes no sense given the sheer weight of evidence of consumer detriment and the wide consensus backing regulation. Anti-regulation dogma has triumphed over what is in the best interests of consumers.’

I think the Panel was quite restrained, given that it is hard to see this as anything other than another dig at the legal profession. As Neil Rose pointed out on his Legal Futures blog, the government thinks nothing of dealing with the fewer than 10% of fraudulent whiplash claims by giving all the cards to the insurers and risking that a far greater number of genuine claimants will lose out. This thoroughly disproportionate response is diametrically opposed to the one it has now taken on will writing.

It should come as no surprise to find this government, in particular the ‘Justice’ department, valuing doctrinal zeal over everything else, even common sense. The key issue with will writing, even if you empower and educate consumers to make informed choices, is that mistakes normally don’t come to light until it’s too late and the original client has died. But maybe that’s the point – fewer wills, more people dying intestate, more estates surrendered to the Crown. Cunning eh?