Since January 2020, the Legal Services Board (LSB) has been on a mission: to require front-line regulators to assure themselves of the competence of their regulated practitioners throughout their careers. It issued a call for evidence, commissioned reports, and consulted* on its proposals. The process has now resulted in a new statutory statement of policy intended to ensure that regulators “have appropriate frameworks for continuing assurance of professional competence throughout the careers of the people they regulate”. Consequently, “consumers should be able to trust that legal professionals have the necessary skills, knowledge and attributes to provide good quality legal services and that they are kept up to date and relevant over time”.
It is impossible to argue against the good intentions here. But, regrettably, the mission is impossible; both the consequential cost and burden of it to the regulated community (and ultimately to consumers) are disproportionate; the evidence does not support it; and, for me, it is therefore an unwelcome example of inappropriate regulation.
It is almost two years since the Final Report of the Independent Review of Legal Services Regulation was published (all of the Review’s papers are available here). The catalyst for the Review was the market study carried out by the Competition and Markets Authority. The CMA concluded that the legal sector was not working well for consumers. In carrying out its work, the CMA made several references to consumer harm and detriment. So, too, did the Final Report.
However, what transpired in conversations following the Final Report was that the nature of consumer harm was largely being assumed or only illustrated. A core goal of regulation – the protection of consumers from harm – faced some under-developed but important challenges. What exactly are the types of consumer harm in legal services, the causes of that harm, the consequences of experienced harm, and the particular remedies that might be available for it (depending on its nature and who caused it)?