Regulators: what do you do when the research base is weak?

The most important sentence in the Law Society response to the LSB’s consultation on will-writing regulation is this one

“We are not aware of any further evidence that would assist the LSB‟s review of will writing, probate and estate administration services.”

But so far the bit that has garnered the most attention is this paragraph:

“We are concerned about the significant weight given to the results of the research report, “Understanding the consumer experience of will-writing services‟ without regard to the
limitations of this research. The small sample size of 102 wills used for the shadow shopping exercise means that the findings should be treated as indicative rather than representative. While the research could be useful to gain a general insight into the will writing industry we would caution against using the results as the main basis for setting the regulatory parameters in this area. “

They are right that the research is a small sample but they are probably wrong to assume that the SRA’s new regulatory regime will make up for any quality concerns, ‘indicated’ by the mystery shopping research. Indeed, I could not help but wonder how deeply the irony police were sleeping when this passage was penned:

The LSB has within the past 12 months approved the Solicitors Regulation Authority‟s (SRA) new regime, which includes outcomes-focused and risk-based regulation, and covers all aspects of solicitors‟ work. While we accept that it may be appropriate for the SRA to consider changes and its approach to supervision, we consider the SRA‟s current regulatory approach is sufficient to regulate will writing and estate administration appropriately.

I may be doing the Law Society a disservice but my impression has not until now been one of their overwhelming confidence in Outcome Focused Regulation.

More seriously, their concern that the research base for the wills consultation is weak has some merit; but the question is what to do about it?  The approach they take here is: the research identifies a problem; we can say, because sample sizes are not big, that the size of that problem is not certain (this is both true and a coded way of them being able to reflect their membership’s belief that the research must be wrong); and they then claim that things have moved on and we can now be confident there will not be a problem.

I have a name for this strategy.  I call it the OSS strategy.  The Law Society would find itself, usually annually, excorciated for poor complaints handling and would say that the Ombudsman (or occasionally academic researchers such as myself) had a limited evidence base; and that anyway there had been significant reform of procedures and managemment and that they were sure things would now improve significantly.  When things got really bad, they changed the name (SCB meet OSS meet LCS).  It’s a strategy that worked when the regulators’ overseers moved on or were not that bothered, but not beyond that.  And it’s a strategy that led to the Legal Services Act.

A more constructive and persuasive approach would be to either accept indicative findings or conduct more thorough research.  They are right that the numbers of firms mystery shopped is low; but mystery shopping is an expensive technique (but also powerful when used properly) .  The research budget of the LSB; SRA and Law Society are all modest.  As an occasional beneficiary of research funding from some of these bodies if I were to call for more research funding , cyncial readers may very well reach for the words, “He would say that wouldn’t he?” but I would ask readers to note three occasions where research on key areas of legal practice have become something of a political football: QASA, referral fees and now will writing.   Regulators and the professions can either belly ache about the research or they can do better research. Only one of those outcomes is likely to lead to more appropriate regulation.  The question for all these bodies as they ponder their research budgets is, how much is that worth?

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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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