Not so super regulator?

Both the Bar and the Law Society have criticised the LSB for seeking to stimulate the legal services market and acting like a market regulator respectively. I think the LSB overemphasise the benefits of markets, but it is difficult to see how ‘stimulating the market’ is not within their remit. After all the Act obliges the LSB to promote competition in services provided by authorised persons. Stimulating competition is clear on the face of the Act and that must imply acting in some ways at least like a market regulator.

There are some other inconsistencies in the criticisms. The LSB is criticised for doing too much research and acting without sufficient evidence. And I had to smile at the complaints made that the LSB appear to already have made up their mind about the Legal Education and Training Review. That allegation comes shortly after the BSBs consultation on aptitude tests closed and just after the SRA began its consultation on minimum salaries. I also make this prediction: the constituency most protective of the status quo, perhaps other than my dear colleagues in academia, will be the Bar. Whilst it would be unfair to say they have made up their mind, they have good idea of the direction of travel they want, I suspect. In other words they criticise the LSB for a human flaw they have themselves.

The real issue here is the perhaps not so long march to a super-regulator. There is an inevitability about this. The real choice is not whether but who and how. Early attempts at the alternative collaboration (or creative tension) between the complex of regulators are not very promising. The Bar has a powerful constituency and the backing of the senior judiciary, but it’s attempted leadership of the QASA scheme does not augur well for it. It was always going to be an unpopular project though, perhaps we should not judge it too harshly. And yet the Bars best hope relies on it showing itself best placed to regulate advocacy and that there will be a division of responsibilities between different activity based regulators. The difficulty with this approach is that clients and founders are driving the market toward integrating activities not dividing them up. This is one reason why there may need to be a market regulator, that collects good evidence and takes decisions independent of supplier interests.

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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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