Yesterday, I gave a speech at the Westminster Legal Policy Forum about the future for legal services regulation. Part of the question and answer session was reported (identically) by both Solicitors Journal and Managing Partner under the headline ‘Lawyers could have prevented the financial crisis, suggests Stephen Mayson’. I did not say this, did not intend to say it, and the inference (based on what I did say) is completely false. Despite my protestations, neither magazine has so far seen fit to change their story. So here is my response.
Let me begin with a disclaimer. I hold a number of non-executive and advisory appointments with various organisations. What I say here represents my own thoughts and should not be attributed in any way to any of them.
In addressing the fascinating issue of the future for legal services regulation, I confess that I am starting from a possibly contentious proposition: that the current framework is still essentially founded on a Victorian guild and apprenticeship model.
Despite Sir David Clementi’s recommendations ten years ago for a new regulatory approach, unfortunately – though our structure has certainly been reconditioned – it is not as good as new. It is perhaps worth reminding ourselves that his proposals were not as radical as the provisions of the Legal Services Act 2007 itself (in that his views in relation to external ownership and multidisciplinary practice were more conservative than the Act). And so, in a strange twist, the changes in the legal services market heralded by Sir David’s report and enabled by the Act have resulted in a regulatory framework that is not truly fit for the purpose of regulating the liberated market that they have created.
The Legal Services Board has recently been consulting on the independence of approved regulators and whether to push further on the need for independence. Their preference would be for a change of rules to require that the chair of a regulatory board should be a lay person (in the same way that the Legal Services Act requires that the chair of the LSB must be a lay person).
I have broadly welcomed the policy of the Legal Services Act’s reforms of the regulation of legal services, and largely supported the LSB in its implementation of those reforms. That is one reason why I have been surprised by the strength of my fundamental opposition to the LSB’s preference for this rule-change.
Make no mistake: I am not arguing against independent regulation or even a perception of independence. Indeed, in my recent response (para 4.3.2) to the Ministry of Justice review of the regulatory framework of legal services, I argued for greater separation of the representative and regulatory functions than we have so far achieved.