Mind your language

The aims of legal services in England and Wales were set out by the government in the Legal Services Act 2007, when establishing the super-regulator, the Legal Services Board. The government passed its eight regulatory objectives for the LSB, saying that the LSB ‘must, so far as is reasonably practicable, act in a way which is compatible with the regulatory objectives’. But what do some of these regulatory objectives mean? I have a problem with some of the language.

There are three regulatory objectives which use different words when describing the beneficiaries of legal services, as follows (my italics added):

(a) protecting and promoting the public interest;

(d) protecting and promoting the interests of consumers;

(g) increasing public understanding of the citizen’s legal rights and duties;

To my mind at least, those three italicised words – public, consumers and citizen - mean something different in each case, without it being clear whether they intend to, or indeed should, cover separate categories.

I think no one could object to the wording of regulatory objective (a). Presumably the aim of the whole legal system is to protect and promote the public interest. Of course, there can be a debate about what exactly is in the public interest, but the words themselves are unobjectionable. As a result, it is the other two with which I have a problem.

Regulatory objective (d) is about ‘protecting and promoting the interests of consumers’. But who are these consumers? If it means consumers of legal services alone, then why does it not use a clearer phrase like ‘client’ or even ‘consumers of legal services’? The LSB is concerned with legal services alone, and is not a general consumer rights champion, for which we have other bodies.

And then, assuming that we are speaking about lawyers’ clients’ interests as the ones which need protection and promotion, the question is against and over whom? Presumably this means protection and promotion as against the lawyer providing the service, to be sure that the lawyer does not overcharge, say, or misrepresent the extent of the service provided.

It surely cannot mean that the interests of a paying client should be put over those of, for instance, an unrepresented homeless person who is not a consumer? In our legal system, and in justice generally, the values of being a consumer, whether of legal services or anything else, should not trump the values of those who, for a variety of reasons, are not or cannot be consumers. Being a consumer does not, of itself, give someone a special status under the values of justice – whereas being part of the public interest does. That is why I am puzzled about the use of the word ‘consumers’ here.

And then we come to regulatory object (g) about increasing public understanding of the citizen’s rights and duties. It is difficult to know why the phrase ‘the citizen’s’ was inserted here at all. It would make better sense without it. We can all understand the good of increasing public understanding of rights and duties. But why only the citizen’s?

Surely we can rule out the argument that this is some kind of pre-Brexit plot to remove the right of all those from the EU residing in the UK from public understanding of their rights and duties. Ah, but they are citizens, just not of the UK. Does it then mean that stateless people, for example some refugees and asylum seekers, are supposed to be excluded from this regulatory objective, when they are the very kind of vulnerable people most in need of understanding what they can or cannot do?

I assume that, since there are a variety of rights and duties, some vested in the state, some vested in companies, this regulatory objective was trying to target individual rights and duties as being the most important for people to know, which is understandable. But why did it use the word ‘citizen’, with its very specific meaning and exclusions as described above, when the word ‘individual’ – or a simple omission – would have been better? I will not get into the tangled question of whether we in the UK are in any case subjects or citizens, which is another argument altogether.

This may seem like a storm in a teacup, with little significance to the way we are regulated. But one of our principal objections to the decisions of the LSB is its prioritisation of a consumerist version of regulation that does not take sufficient account of the public interest. If the wording of the regulatory objectives had been clearer and more consistent, and had in particular used variations of ‘public’ and ‘public interest’ in all of the three regulatory objectives I have cited, we might have less complaint about the decisions it has made.

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 do not necessarily reflect the views of the Law Society Council