Reforming Legal Services: Professor Mayson’s report destined for the archives?
In a report grandiosely titled: Reforming Legal Services: Regulation Beyond the Echo Chambers Professor Stephen Mayson, honorary professor of law at University College, London, has presented his 319-page Independent Review of Legal Services Regulation
The proposals, which Professor Mayson stresses are entirely his own, are:
(1) The overriding objective of regulation should be the public interest, whether relating to the rule of law and the administration of justice, or the protection of consumers from harm and detriment.
(2) The scope of regulation should be extended to include all ‘providers’ of ‘legal services’, including those who are currently unregulatable as well as providers of lawtech. There should be limited exemptions or exclusions in relation to most self-representation, family and friends, information-only services, and public officers.
(3) There should be an independent, single, sector-wide regulator of legal services, though with the power to delegate the exercise of defined and limited regulatory powers to other bodies. The current Legal Services Board, approved regulators and regulatory bodies would be replaced.
(4) The regulator would maintain a public register of providers, and apply regulatory conditions for before-, during-, and after-the-event regulation. These would be applied, monitored and enforced on a sector-wide basis, irrespective of provider, and as appropriate to the importance and risk of particular legal services or to the relative vulnerability of the clients concerned.
(5) Minimum conditions of registration would require common standards and disclosure, as well as access to complaints investigation and redress and to protection through indemnity insurance. A revised and more extensive ombudsman scheme would act as a single point of entry for complainants who are individual consumers or micro-organisations.
(6) The current reserved activities should be replaced with a requirement for prior authorisation in order to secure the public interest. Where this is required for public good services (principally the exercise of rights of audience or the conduct of litigation), there would be a dedicated regulatory body as part of the single regulator.
(7) Professional titles should not be the only route for entry by individuals into legal services regulation. The single regulator would establish the conditions for the award and removal of titles, but the professional bodies would actually confer or remove title. Professional bodies would also play a role in education and training, in forms of specialist accreditation required by the regulator and, where they wished to, in promoting professional standards above those required by regulation.
Professor Mayson observes that in order to achieve some of his recommendations the Legal Services Act 2007 would need to be amended, but (thankfully many may think) as recently as last month Justice Minister Alex Chalk is reported as saying that the Ministry of Justice was happy with the work done by the Legal Services Board and a review of the Legal Services Act 2007 is not envisaged.
Unsurprisingly, the report has received a lukewarm reception from regulators to their replacement by a single regulator. Legal Futures reports Amanda Pinto QC, chair of the Bar Council, as saying that in a market made up of specialist professionals, specialist regulators focused on each part of the overall system is surely of more benefit to society than an uber regulator that comes at a higher financial cost to the public making access to lawyers more expensive for those needing their services.
Matthew Hill, Legal Services Board chief executive, has diplomatically described the report as a thoughtful analysis of a complex set of issues. The Legal Services Board is already looking at the reforms it may make using its existing powers under the Legal Services Act 2007.
For longer than I care to remember, there have been calls in some quarters for a single regulator for the health professions, so Professor Mayson’s idea of a single regulator is hardly novel. But it is equally absurd. It would require gigantic resources, create an enormous regulator no doubt more bureaucratic than we dare to envisage, and the general public (who are meant to be the beneficiaries of this change) would end up paying substantially more for legal services.
This may have been an interesting academic exercise for those concerned, but I respectfully suggest that on close examination there is little of merit in it for the general public, the regulated legal profession or for the unregulated sector.