The Solicitors Regulation Authority is holding a conference on 27-28 September in London for regulators from around the world (well, chiefly from the common law world judging from the last programme I saw). It covers many important topics, with an A-list roster of speakers. Its goal is to share best practice among international regulators, build better relationships and begin to form a lasting network which can then share ideas on an ongoing basis.
I want to concentrate on just one aspect of that list of aims – the idea of a lasting network of regulators. I offer my views as constructive background to any discussion that takes place.
Who are the regulators?
The answer to this question is not as easy as it seems. It is like the famous Russian doll, with layer after layer of regulator in many countries. It is rare for a single body to regulate the legal profession on its own and without any other participant. For instance, who regulates the legal profession in the UK? First, there are the three jurisdictions, then the two legal professions per jurisdiction, then – if we take just solicitors in England and Wales – there is the SRA (but what exactly is its relationship with the Law Society?), followed by the Legal Services Board, the courts in certain aspects (such as enforcement of discipline), and of course the government, which is the super-regulator setting the framework for all regulation in the first instance. There are other regulators dancing around the periphery, too, such as the Financial Services Authority for some cases.
Believe me, this level of complexity may be unusual, but is not unknown. Take the US, or indeed other federal states. There is no single national regulator in the US, since each of the 50 states is responsible for regulating the legal profession within its state border. It is generally not the bar which regulates, but the State Supreme Court. The chief regulator is therefore usually seen as the Conference of Chief Justices, which is the network of the heads of the regulators. These are senior judges who do not get their hands dirty with daily supervision and enforcement. The American Bar Association has a role, too, since it promotes model rules, which are considered by the 50 regulators and often – but not always – adopted in one form or another, but rarely in identical form 50 times over.
You get the picture. It becomes much more muddied when the government has a direct role in regulation (as opposed to an indirect one, as in many countries). Will the All China Lawyers Association form part of an international network of regulators, for instance, given the role of the government in lawyer regulation in China? Do we need a new organisation?
There are already bodies which link international regulators. (I immediately declare an interest, because I am associated with some of them.) But they are not called that, and here we come to an important point in this discussion. I take it that the SRA is not a bar or law society in itself. At the minimum, that implies a membership of the body concerned. No solicitor is a member of the SRA; we are instead members of the Law Society. In most countries around the world, even given the complexity of the regulatory arrangements I touched on briefly above, a bar is involved in the regulation, more or less directly. If the SRA had called for a network of international bars, it would have been immediately seen to be pointless, since there are existing organisations carrying out this function.
So, within Europe, the Council of Bars and Law Societies of Europe brings together the lawyer regulators from 42 European countries and debates common issues. It solves the complex issues of ‘who’ by being an organisation of bars and law societies alone. This means that, on the one hand, representative bars which have no direct regulatory function are eligible for membership, and on the other hand, to take England and Wales for example, the Legal Services Board and the government are not eligible to become members. It is not therefore called the Council of Lawyer Regulators of Europe.
There are also two international legal organisations in existence: the International Bar Association (IBA) and the Union Internationale des Avocats. I know the structure of the IBA better, and it has a Bar Issues Commission, among whose aims is ‘to discuss issues and changes that affect the legal profession worldwide’, and to establish ‘working groups that develop resources and guidelines for bar associations’. There are also bodies which link the chief executives of European bars (CEEBA) and international bars (IILACE), both of which discuss regulatory issues on their agendas.
So how will any network of international regulators be substantially different to these existing bodies? One assumes non-bar bodies will be eligible to join, but how far will the definition go – governments? I assume not, but then the true regulators in various countries will be excluded. So I expect a network of independent regulators is foreseen. But will the Conference of Chief Justices of the US qualify, when the judiciary is one of the three branches of government in the US? I could go on and on with the questions.
There are other problems, such as language. If English is the sole language of the group, there will automatically be a large swathe of regulators (think South America, let alone parts of Europe) who will either not come or not feel comfortable. But the main issue is one of definition. If ‘regulator’ – or at any rate ‘independent regulator’ – in nine cases out of 10 chiefly means bar or law society, what is the advantage of establishing a new network?
Jonathan Goldsmith is secretary general of 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