Playing with regulation

The Legal Services Board, in its consultation (now closed) on its business plan 2016/17, wants regulation to be undertaken independently from representation. The arguments for it are impeccable – public confidence, transparency, separation of powers.

But then the arguments against the Queen are impeccable, too, and yet we have a monarchy that most agree seems to work as head of state. Bullet points on a PowerPoint slide, which is the style of the LSB business plan, do not always deliver the necessary answers on complex matters.

What needs to be examined are the assumptions behind the bullet points. Why does it come to these conclusions? In a country where you do not need to worry about the essential role of lawyers in the administration of justice - whether that is in the mega-deals that multinationals need to have reviewed and sealed by world-class City firms to keep business going, or the vocational devotion required from those who provide legal aid to ensure justice, both civil and criminal, to those struggling with their lives - you can afford to play with regulation.

You can afford to taunt lawyers with all kinds of modish ideas that will threaten their livelihoods. That is because you know that at heart essential justice will continue to be served by well-qualified lawyers. Many countries do not have that luxury, because of government indifference to lawyers’ values, and their citizens suffer as a result (China, Russia, many countries in the Middle East, for instance).

What is playing with regulation? Well, the biggest threat by far to the administration of justice is the rise of the unregulated sector. This could be simply unqualified people undercutting lawyers because they do not have to carry the requirements of qualification and regulation, or, much more likely in the near future, electronic platforms run by tech companies which offer powerful and simple solutions.

What does the LSB propose to do about the unregulated? In its PowerPoint style, it tells us that it will be ‘working across the regulated and unregulated landscape’ and ‘exploring unregulated services’, and will then ‘identify the reach, benefits and risks of unregulated services’.

There is a danger that the fun will ultimately endanger justice itself

By playing with regulation, I also include the fascination with anything new and shiny. The buzzword (‘modern’ is clearly no longer modern enough) is ‘innovative’, and anything described as innovative receives admiration, as if ‘new’ means ‘better’. So we have ‘new entrants tell us they have used our surveys to attract investors and shape innovative business ideas’ and, even more tellingly, ‘unregulated providers are the most innovative overall’. They need to be reminded that regulation concerns values, and novelty of itself brings no values.

One of the regulatory objectives in Article 1 of the Legal Services Act 2007 - thank goodness - is ‘encouraging an independent, strong, diverse and effective legal profession’. But it is one the LSB appears to have forgotten about. Another is ‘promoting and maintaining adherence to the professional principles’. It is also left in the pram. Neither of these are modish, innovative and shiny. Apart from the token, almost statutory, ‘Driving improvement in diversity’, I found nothing about either of them in the 2016/2017 business plan.

All this is important because the government is about to review the 2007 act, including the separation between regulation and representation, mentioned at the start. The LSB appears to disdain the two regulatory objectives which mention the legal profession. If the representatives of the legal profession are driven out of any meaningful role in regulation, there is a danger that the fun with regulation that non-lawyer regulators appear to derive from their role will endanger justice itself.

(I should for the record make a personal declaration. I applied twice last year to be a member of the LSB when vacancies for lawyers were advertised. I did not get to the interview stage on either occasion, even though the first time no one suitable was found, and on the second occasion there was more than one vacancy. I asked the Ministry of Justice for feedback on 1 December, and, despite being promised an answer by 9 January this year, I have still not received anything over three months after my first request. I don’t care whether I am appointed, but I wish the LSB would take on as a member someone who kept at the forefront of its attention those two regulatory objectives I have mentioned, which, for as long as they are still fortunately being satisfied in this country, enable the LSB to play so casually with lawyers’ futures.)

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs