Legal services regulation: turning point, or point of no return?

Earlier this month, I was invited to give the Wickwire Memorial Lecture at the Schulich School of Law at Dalhousie University in Canada. Frederick B. (Ted) Wickwire QC, a graduate of the School, was the President of the Nova Scotia Barristers’ Society. He died in office at the age of 52 in 1991.

Ted Wickwire was noted for his commitment to public service and to uncompromising professionalism. Each year, a lecture is held in his memory, focusing on an aspect of professional ethics.

It was a great honour to deliver this year’s Lecture, albeit with the constraints of virtual presence. The full text of the Lecture is available for download here.

The Lecture presented an opportunity for me to reflect on some of the underlying themes of my independent review of legal services regulation in England & Wales. In particular, I explored the emerging and increasingly uncomfortable tension between regulation and professionalism.

This tension arises in part from the need to balance the interests of the public, consumers and the professions. It is also exacerbated by the continuing challenges around the world to self-regulation, and the difficulties of both representing and regulating professionals. With rising unmet need, and the consequences of Covid-19 changing the way in which consumers want legal services, from whom, in what form, and at what cost, the stakes are high.

To conclude the Lecture, I offered five fundamental principles for regulatory reform that might present a way of resolving the tension:

> promote the primacy of the public interest

> pursue minimum necessary intervention through targeted regulation

> leave scope and freedom for professions and professionalism

> focus on regulatory capture rather than regulatory independence

> ask ‘Why not?’ rather than ‘Why?’

As I said in the Lecture, there is no one best way to realise the goal of effective regulation. But there is a shrinking window of opportunity for legal professions to take a turning point – to engage with regulatory reform and so maintain some influence and authority over professionalism. Otherwise, some combination of clients, consumers, competitors, governments, legislators or supreme courts will inevitably rewrite the rules. And at that point lawyers may well have reached the point of no return – no influence and no choice.

IRLSR: key proposals and reactions so far

This post is the text of the opening keynote address delivered to the Westminster Legal Policy Forum on the future of legal services in England & Wales (held online on 15 September 2020). A PDF of the address is also available for download here.

Every time I looked at the draft of the final report, I would change something or elaborate on aspects of it.  It wasn’t that I had changed my mind, but that I was always trying to make my meaning and intention as clear as possible.  With the report[1] having been submitted to the Lord Chancellor and published, I am therefore content for now that the report should speak for itself – subject to one caveat that I shall return to later.

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Re-thinking legal services regulation

My interim report for the Independent Review of Legal Services Regulation in England & Wales is published today (available here).  This post is extracted from it.

While the reforms of the Legal Services Act 2007 have been mainly beneficial overall, that legislation might best be characterised as an incomplete step towards restructuring legal services regulation.

For reasons that are understandable, it did not fully follow through on some key elements of the regulatory structure.  These include: review and reform of the reserved legal activities (those few activities that must be provided by lawyers); the known regulatory gap (as a consequence of which the non-reserved activities of lawyers are regulated, but those of non-lawyers can legally be provided but cannot be regulated – to the potential detriment of consumers); and the separation of regulation from professional representative interests.

This lack of follow-through has led to increasing challenges to the integrity of the regulatory framework as the legal sector has evolved and developed since 2007.

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