Paterson, Hamlyn and the Separation of Regulation and Representation

Alan Paterson’s Hamlyn Lectures, Lawyers and the Public Good raise a number of very interesting questions about the future of professionalism post-Legal Services Act.  Alan is a passionate advocate of the importance of professionalism whom I have had the privilege of working with over very many years.  His brand of professionalism recognises the need to balance, not ignore, the forces of commercialism.  Under this approach, professionals deserve to be rewarded with status, financial reward and a degree of protection from competition in return for providing guarantees of quality, public service, access to justice and the like.  The material benefits of professionalism are not an anathema to professionalism but a crucial part of the bargain to be struck when balancing material benefits and the more obvious virtues (from the public’s perspective) of having ‘good’ professions.

One of many interesting points he raises is whether, in the face the many threats posed to traditional professional interests, the current regulatory framework is best placed to ensure that bargain is well struck.  He suggests, in particular, that separating representative and regulatory functions frees the professionally representative body to act singularly in the profession’s not the public interest; that regulation and professional interests are seen as being in opposition and necessarily separate; and, on my interpretation at least, that this allows the profession to dodge the irresponsibility for  professionalism.  It risks de-responsibilising lawyers.  In his support he points to the way the GMC is the obvious focal point for professional leadership of doctors in a way that the BMA is not.  I have some reservations about this argument.  There was already a strong level of antagonism within the Law Society and the profession towards regulatory agendas and that the Law Society was beginning to show itself as being ill-suited to managing the conflicting agendas that often played out in Law Society Council.  Similarly, the division of responsibility, and the role of oversight regulation, might be seen as giving rise to some useful and productive tensions.  To give an example, a plausible interpretation of the debate about the regulation of will writers is the intervention of the LSB and the response of the profession to the call for evidence based policy has, so far, led to a more productive and objective debate about the need for regulation in the area.
Nevertheless, Paterson’s concern is important.  Consider why it was that the Law Society, in separating out its regulatory and representative functions chosed to invest its ‘brand’ in the representative not regulatory function. Or why it pays  the CEO of the Law Society significantly more than the CEO (who manages a bigger organisation) more.   Whether this indicates the pre-existing priorities of the Law Society were dominated by the representative agenda or that splitting them has led to a downgrading of regulatory work is one to debate.  It will, more clearly, lead to a clear and not altogether healthy divergence between regulatory and representative agendas.

For those interested in the book of the lectures, click the link above.  Alan focuses on professionalism, access to justice and accountability of the judiciary.  He provides a wide-ranging and thoughtful review of the issues facing lawyers, legal aid and the future legitimacy of the judiciary.  A book packed with historical and political insight, it also contains some fascinating accounts, based on detailed work with Supreme Court Justices, of how the Supreme Court works behind the scenes.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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