This is no time to review reserved activities

In a recent discussion about the impact of the new EU-UK Brexit trade deal, which removes the right of solicitors to advise on EU law within the EU, the question arose as to whether a solicitor can now advise on EU law in England and Wales. The answer is yes, and there is nothing that the EU can do about it. The general right of anyone to give advice on any law in England and Wales means that a greengrocer can advise on EU law, and always could do. Giving legal advice is not a reserved activity.

Of course, the next question is whether it is wise for a solicitor to give such advice now, but that is another matter. If the advice given has an impact within the EU, there may be serious consequences for the solicitor, for instance in terms of professional indemnity insurance coverage, and the ability to claim legal professional privilege for the advice.

But if both a solicitor and greengrocer can advise on EU law, it raises a question about the essence of being a solicitor. A solicitor can spend a whole career undertaking work which a non-solicitor is entitled to do as well.

Yet we know that our qualification has two essential features that differentiate us from greengrocers.

First, our qualification serves as a regulated quality mark, providing clients with recourse (insurance, complaints system) if our quality falls below a certain level.

Second, it provides an entry to the reserved legal activities mentioned above, which are defined by section 12 of the Legal Services Act 2007, as follows:

(a)    the exercise of a right of audience;

(b)    the conduct of litigation;

(c)    reserved instrument activities;

(d)    probate activities;

(e)    notarial activities;

(f)    the administration of oaths.

One or more of these activities form the core of many solicitors’ work. The Legal Services Board (LSB) is now consulting on whether to undertake a review of the reserved activities. There are arguments for and against such a review.

In favour of holding a review, there has not been a recent, evidence-based assessment of the benefits or risks created by the reserved activities. Are they the right ones? Should more be added (such as will-writing) or some taken away? There is also a problem that unregulated providers cannot currently be brought into the scope of regulation unless they undertake the reserved activities, since the reserved activities are the entry point for regulation.

The ramifications of the recent assault on the US Capitol and the removal of alternative platforms such as Parler have raised questions about freedom of speech and the future regulation of big tech, which are still being processed let alone acted upon

Arguments against holding the review now are more practical considerations, such as that the government (which would have to accept the changes) has its hands full with the pandemic and Brexit, and has no time or wish to consider substantive matters in this sphere. Additionally, technology is developing so fast, particularly in the matter of unregulated providers of legal services, that it may be sensible to wait and see what develops before tinkering with the reserved activities.

At this point, I would like to pause, because we have reached the argument which I think should govern this discussion.

It is certainly true that technology is developing rapidly in the legal sphere and UK legal tech is a leader in the field. The provision of legal services via platforms, mainly American, is increasing swiftly. The pandemic, with home-working and the economic hit felt by many law firms, will doubtless increase this trend.

At the same time, the regulation of big tech is coming towards us at speed. For instance, the ramifications of the recent assault on the US Capitol, with the president removed from social platforms (while other world leaders with worse histories stay on), and the removal by big tech of alternative platforms such as Parler from the services they need to be accessible, have raised enormous questions about freedom of speech and the future regulation of big tech, which are still being processed let alone acted upon.

The EU last month published its Digital Services Package, containing a Digital Services Act and a Digital Markets Act, to regulate (among others) Big Tech. And in April the UK will establish a new digital market unit within the Competition and Markets Authority (CMA), with a view to legislation next year. There may well also be further regulation within the US.

Finally, the CMA has recently proposed a short-term solution to the issue of unregulated providers of legal services, which is that the Ministry of Justice should create, or empower the creation of, a mandatory public register for unauthorised providers. That in itself will shake up the field.

All these important developments create an irresistible argument for the LSB to do nothing about the reserved activities for now, and wait for the dust to settle on the two inter-related questions of the regulation of big tech (which provides more and more in legal services) and the regulation of the unregulated in general.

Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and are not made in his capacity as a  Law Society Council member, nor on behalf of the Law Society