The Clementi review has alienated the UK from Europe by putting consumer interest ahead of the public interest, says Jonathan Goldsmith

There have been several shocks to the European legal sensibility from the Clementi review process in England and Wales, and some continue into the recently-published Legal Services Bill.


The Clementi proposals of revolutionising the regulation of legal services were sold under the banner of 'putting consumers first'. From a European perspective - and a UK perspective - this is a mistaken order of priorities. No legal system is, or should, be based on putting consumers first. Rather, the public interest comes first, which is not the same thing at all. It should not be necessary to spell out the difference between the two but, to take some random examples, consumers may well want to drive without seat belts and buy pornography in their supermarkets, but the public interest demands a different response.


Interestingly, the words 'the public interest' do not appear at all in the list of regulatory objectives in clause 1 of the draft Bill. It is true that 'the rule of law' is the first principle, but you can have a rule of law without taking account of the public interest. Of course, 'protecting and promoting the interests of consumers' appears high in the list, as you would expect, well above the last regulatory objective of all, which looks as if it was put there almost as an afterthought - 'promoting and maintaining adherence to the professional principles'. In other European member states, these professional principles - listed in the Bill as independence, integrity, acting in the best interests of clients, and confidentiality - would be among the first, when considering the regulation of the legal profession.


The shocks continue. To underline the interests of consumers, schedule 1 makes clear that the proposed Legal Services Board (LSB) must consist of a majority of lay persons, and clause 7 establishes a consumer panel whose views the LSB is under a duty to consider. Of course, there is no equivalent lawyer panel.


It is instructive to compare the Legal Services Bill to another, similar report that has recently been published in the Netherlands. The circumstances were similar to the Clementi review, in that the government created a committee with a radical brief to examine the regulation of the legal profession and the constitution of the professional bodies. There is one similarity to the Bill. The Dutch report recommends the establishment of a regulatory council for the legal profession, with a majority of non-lawyer members. But the remaining recommendations are very different.


For instance, the Dutch report says: 'The council's mission is positive in two senses: in the public interest and in a balanced way it must regulate the profession in order to correct professional imperfections... The public interest will take priority.' This is repeated later, where the report discusses the two values that will govern: 'The Act on advocates sets out the criteria for public interest and the core values of the legal profession, which serve as a guideline and assessment framework for regulation.'


Regarding alternative business structures and the ownership and regulation of licensed bodies, the Council of European Bars and Law Societies of the EU (CCBE) strongly opposes non-lawyer-owned legal practices. It is likely that the bar of one member state will write to the Parliamentary committee reviewing the Bill to say that UK lawyers practising in a non-lawyer-owned firm will not be able to practise in that country.


There is a prior and vital element missing in the Bill, which is the primacy of the public interest, and there is also too low an emphasis on the role of lawyers and their core values in the regulation of the legal profession.


Solicitor Jonathan Goldsmith is the CCBE secretary general