One regulator, different regulatory principles, any professions?

The Legal Service Board’s recent regulatory vision document sees the Board seeking to abolish itself. It wants to replace an array of approved regulators with varied jurisdiction over differing reserved activities and forms of alternative business structure, with one regulator. It wants simpler regulatory objectives, with the possibility of ditching things like public legal education and diversity from the statutory mix; a risk-based approach to defining which activities are regulated rather than the historical mishmash of reserved legal activities; and, regulation which is not based on professional title. Whilst it is possible to envisage a future for professional organisations, the weakening of professional power may be significant. It also wants a process for working out how to ensure regulation of legal services is independent of both the professions and government, the extent to which consumer representation should be ensured or enshrined, and the precise structure of a single regulator covering the whole market.

On one level, this can be seen as completing the job started by Clementi. Shifting from the political compromise that was Clementi’s B+ model towards a bureaucratically neater, simpler and easier to justify model: easier to justify to anyone (I’d say) but the professions themselves. Although interestingly, in market terms – as the document acknowledges – it is the title, solicitor, barrister, which has the most recognition.

At the heart of the document, lies an interesting question: has more independent regulation, and a greater focus on innovation and liberalisation, led to greater access to justice, improved quality, and helped a legal system deliver more strongly on public interest concerns? The Legal Service Board’s own attempts to assess these questions are laudable but significantly incomplete. They do not really have the data to make the judgement and nor does anybody else.

The Board’s evaluation document (linked above) sets out these limitations reasonably clearly. Interestingly, while they point to evidence suggesting improvements in quality in the market, which they hope are engendered by the reforms, and while they associate – in a loose sense – some improvements in legal service markets with ABSs, they also find ABS are most influential in the personal injury market. They do not draw the link here with their evidence that where there were concerns about quality they were most pronounced in the personal injury market. That may be an ABS issue or it may be a person injury market issue associated with (say) the Jackson reforms. Is there a tendency to note possible positive associations the ABS but not the possible negative associations? Maybe, maybe not, but we are a long way from understanding whether innovation and liberalisation has had an impact on cost, quality and technicality.

In truth, the regulators generally, and the Legal Service Board as well, have proceeded with the limited budgets for research and other means of evidence collection and generation. Assessing risk and evaluating reform may be done somewhat better than it has been done in the past but we are a fairly long way from evidence-based policy. The high watermark was probably an attempt to collate evidence around will writing. Here, whilst the work was interesting, and built from a very low base, the evidence was also quite modest in nature. It floundered on the rocks of political judgements made by everybody’s favourite Lord Chancellor. Perhaps chastened by the experience, or simply less interested in research, original data on other issues has been less imaginatively or usefully generated.

The canny reader will suspect I am building towards self-interested plea for more research. I suppose I am, although not necessarily wholly or mainly the kind of research that legal academics typically do (more’s the pity, perhaps). But what I am really building towards is, I think, a key question for the reforms discussion. The tension between activity based and title-based regulation is likely to be acute. Threaten title-based regulation and you threaten the occupational status and power of the professions themselves. Equally, the case for activity-based regulation has persuasive appeal, especially if the regulatory maze that Clementi was supposed to tackle is genuinely addressed.

It is not, in theory at least, impossible to reconcile the tension by having one occupation, with licensing arrangements tailored to each of the specific activities (in fact – in a way – the existing professions do this already just separately). But my point is more basic, trying to decide what regulatory structure would really work and whether we should ditch regulation by title and build on regulation by activity, we should have a clearer view of what really works. The Legal Service Board’s own assessment of the reforms is, whilst very detailed, also very high level. It has no means of tying regulatory form and the objects of that form together. At bottom, we rely on a good deal of conjecture and ideology alongside a rather slim evidential base.

Still, it was ever thus, and we are where we are. Those who would like to debate the Legal Service Board’s proposals can do so at an event we are hosting with the Board on 14 November. You can book here.

 

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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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