Regulating legal services: justice, not simplicity is the goal
In the last year, the future of legal services regulation has become a hot topic in regulatory policy, as the sector considers both innovation and consumer protection within the current regulatory framework established under the Legal Services Act 2007. The recent Westminster Legal Policy Forum keynote seminar on the future of legal services inspired lively discussion and diverse points of view on these issues. The pervasive theme throughout discussions: that legal services and legal services regulation must work for the public as a whole and for the consumer, is one with which we entirely agree. Access to justice means that there is a duty to ensure that regulation works for all, including the most vulnerable sections of society.
Whilst a number of speakers expressed a desire for simplicity in regulation, it is essential to remember that improved access to justice, not simplicity, is the goal. Matthew Hill, LSB Chief Executive, described the current system as complex, “built around professions and not consumers”. This statement rests on a premise that the two are mutually exclusive, suggesting that the current structuring of the legal system by profession is inherently against the consumer’s interests – facts which have not as yet been established.
Various concerns with the current regime have been floated in the last year, including those of unmet legal need in the LSB’s recent report, and the “nudging of consumers into the world of unregulated providers” in Professor Stephen Mayson’s interim report. Justice for the consumer and the public must be at the heart of legal services regulation, and of any proposed reform. A commitment from the sector to reasoned, evidence-based proposals will aid us in achieving this.
A key theme of Professor Mayson’s report is the proposal to layer the regulation of legal services according to risk. As noted by Derek Sweeting QC, Vice Chair of the Bar, the Achilles heel of this proposition will be one of definition: how will risk be assessed, and how will we define legal services?
Sir David Clementi ultimately decided to build upon rather than reconstruct the current system, utilising the existing regulators. We must carefully consider whether wholesale reform of this structure which was reviewed less than one generation ago is necessary, and recognise the real potential for disruption, confusion and ultimate negative impact on the consumer and the public.
Professional titles such as ‘barrister’ are established, well known and highly regarded by the public in England and Wales. Use of the title ‘barrister’ fosters a strong sense of professional identity amongst those who have been awarded it and this collective ethos supports the maintenance of high professional ethics. Regulated titles such as ‘barrister’ and ‘solicitor’ also provide the consumer (both domestic and international) with a clear signal that the professional whom they are instructing is regulated, insured and will deliver a high quality of work as well as abiding by a code of conduct. The value that this brings cannot be overstated, and is worth maintaining in the public interest.
We should remember that there is also scope for flexibility within the current framework which can be utilised. The list of reserved activities in the Legal Services Act 2007 can be amended or indeed extended to cover more activities. Authorised and licensed bodies have for a number of years allowed legal professionals from different disciplines to work together, and legal professionals to form businesses with non-lawyers. And we must not forget the opportunities brought by innovation and adoption of technological developments which may hugely benefit the consumer, without an overhaul of the current regulatory framework.
Our internationally renowned justice system is underpinned by a regulatory framework that must not be dismantled without a very high degree of scrutiny over robust, evidence-based proposals. Access to justice for the consumer and the public, not simplicity, is the goal.
Eleanore Hughes, Policy Analyst: Regulatory Affairs, Law Reform and Ethics
Eleanore’s work includes responding to regulatory developments which could impact the Bar, and contributing to consultation papers commissioned by various regulatory and academic bodies. Eleanore studied law at Exeter University where she was awarded a scholarship to spend a year at the University of Connecticut School of Law. Eleanore subsequently completed the Bar Professional Training Course and was called to the Bar. Eleanore is Executive to the Law Reform Committee and the Direct Access Panel. She is also an Ethical Adviser on the Ethical Enquiries Service.
Melanie Mylvaganam, Policy Manager: Regulatory Affairs, Law Reform and Ethics
Mel works on anti-money laundering/counter-terrorist financing, regulation and ethics; she has also worked on IT policy for the Bar including the creation of the GDPR Toolkit, and Brexit policy including the creation of The Brexit Papers. Mel’s role includes policy analysis and development, stakeholder liaison and project management; she also has management of the team of four Policy Assistants who support the wider Policy Team. Mel is an Ethical Advisor on the Ethical Enquiries Service, and is also responsible for the ethics library of documents on the Ethics and Practice Hub.