An independent review of legal services regulation

The announcements are out, and the work has started!  I’m honoured to be leading a fundamental review of the current regulatory framework for legal services in England & Wales through the Centre for Ethics & Law in the Faculty of Laws at University College London.  Full details are available here.

The independent review is intended to explore the longer-term and related issues raised by the Competition and Markets Authority (CMA) market study in 2016, which concluded that the legal services sector is not working well for individual consumers and small businesses, and that the current regulatory framework is unsustainable in the long run.  It called for a review of that framework to make it more flexible as well as targeted at areas of highest risk where regulation is most needed.

The time for the review is right.  In the light of Brexit, ‘taking back control’ presumes full confidence in our domestic rule of law and legal institutions, as well as maintaining our performance and competitive position in the global economy.   The provision of effective and properly regulated legal services is critical to maintaining the rule of law, and the effective and efficient administration of justice.  It is also necessary for sustaining the UK’s position and reputation as a world-leading jurisdiction for the governing law of international transactions and for the resolution of disputes (though this already appears to be under some pressure as a result of Brexit).

The review’s objectives will be to consider how the regulatory framework can best:

  • promote and preserve the public interest in the rule of law and the administration of justice;
  • maintain the attractiveness of the law of England & Wales for the governance of relationships and transactions and of our courts in the resolution of disputes;
  • enhance the global competitiveness of our lawyers and other providers of legal services;
  • reflect and respond flexibly to fast-changing market conditions being driven by innovation and advances in technology;
  • protect and promote consumers’ interests, particularly in access to effective, ethical, innovative and affordable legal services and to justice; and
  • lead the world in proportionate, risk-based and cost-effective regulation of legal services, consistent with the better regulation principles.

The review’s scope will accordingly reflect these objectives, and will include: regulatory objectives; the scope of regulation and reserved legal activities; regulatory structure (including who should regulate), governance and the independence of legal services providers from both government and representative interests; the focus of regulation on one or more of activities, providers, entities or professions; the extent to which the legitimate interests of government, judges, consumers, professions, and providers should or might be incorporated into the regulatory framework; and how best to avoid the inflexibility of the current regulatory framework.

This review will need to consider how we can best ensure that our legal services remain of high quality and are effective, and that their regulation is proportionate and fit for purpose.  It will also need to re-examine how to give the public much-needed transparency about the legal providers they use and the services they pay for, and ensure that they understand their options and the consequences of their choices.

To start Phase 1 of the review, there is now a preliminary paper (available here) that sets out an assessment of the current regulatory framework, drawing conclusions from a range of sources.  This provides a basis for identifying potential problems that might need addressing or avoiding in any future regulatory settlement.

The first two working papers of four others are also already published (available here).  Each of the working papers will in essence address the issues and challenges raised by the four fundamental questions of the review:

  • Why should we regulate legal services? (Rationale)
  • What are the legal services that should be regulated? (Scope)
  • Who should be regulated for the provision of legal services? (Focus)
  • How should we regulate legal services? (Structure)

The working papers will be updated and reissued as the review progresses.  The remaining two working papers are expected to be published in February 2019.

In pursuing its work, the review will seek to engage with a wide range of stakeholders and interested parties, including the CMA, the Legal Services Board, approved regulators, front-line regulators, representative bodies, consumers, the judiciary, practitioners, and providers of legal education and training.  It is therefore now open for submissions in response to the working papers (there are questions posed at the end of each paper), and for meetings and discussions to explore the issues (to follow up, contact me at s.mayson@ucl.ac.uk).

I hope to complete the review by the end of 2019, and present its conclusions and recommendations to the Ministry of Justice.  The final report will also be made publicly available.

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