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.
Here is a fascinating podcast: a conversation between Jordan Furlong (guest) and Professor Mike Madison of the University of Pittsburgh School of Law (host) on the future of law, re-regulation, access to justice, and the rule of law. Over many years, Jordan has perfected the gift of identifying nails in the legal services sector and then hitting each of them firmly on the head. This episode has a good number of those nails. In this post, I pick up on some of the themes it explores.
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.