There is a worrying lack of focus on the public interest in the board’s latest draft strategic plan, which seems mired in a carefree past.
The Legal Services Board published its draft strategic plan 2015–18 and business plan 2015/16 shortly before the Christmas break.
While reading these, my suspicions were aroused, and so I used a simple search tool to obtain interesting results. The word ‘consumer’ appears 161 times in the document, while the words ‘public interest’ appear just 15 times.
This is despite the fact that the public interest is first in the list of regulatory objectives that the LSB is supposed to promote – and also despite the fact that the LSB has itself in the past declared (but maybe forgotten) that this means it should ‘actively place the public interest higher than sectional interests of particular consumer or professional interests’.
And, secondly, though another of the regulatory objectives of the LSB is to improve access to justice, the words ‘competitive’ or ‘competition’ appear 43 times, while the words ‘legal aid’ - which some might consider a rather important feature of access to justice - just six times.
I have a vision of the LSB. We know that the act which launched it, the Legal Services Act 2007, was an intellectual product of the Blair government. And in LSB headquarters it is still early 2007. Tony is still PM and Amy Winehouse’s freshly released Rehab is played over the corporate loudspeakers. The board has that day approved a paper showing how the US and UK legal professions stood shoulder to shoulder to bring peace and love to Iraq.
But we know differently. I feel like tapping on the LSB’s windows and shouting ‘wake up, 2008 is coming!’. Before the economic crash, consumers were given what they wanted, for instance through sub-prime mortgages. And the regulators did not take sufficient account of the public interest to monitor and regulate how this debt was bundled, with devastating consequences.
As for the substance, the LSB has announced two principal themes in its Strategic Plan. Theme A is ‘breaking down regulatory barriers to competition, growth and innovation’. To this I reply: Tony Blair has left the stage to launch his Faith Foundation, and that is where his religious mantras now belong.
The shaky ideology behind Theme A is nowhere more apparent than in the first expression of what the LSB will achieve under Theme A: ‘ensure that England and Wales maintains its position as the world’s leading legal hub and exporter of legal services’.
But if England and Wales has reached a position as the world’s leading legal hub with all these evil regulatory barriers in place, then where is the evidence that these supposed barriers (or their abolition) have any link to its maintaining its leading position? And yet the LSB assures us throughout that it always acts on evidence alone.
I like the second theme much more, Theme B, which is called: ‘enabling need for legal services to be met more effectively’. Personally, I agree that unmet legal need is one of the key features of the legal landscape and should be addressed as a priority.
If I were to declare two themes for the LSB to tackle in the future, I would stick with their current Theme B. But for Theme A, I would daringly leave 2007 behind. I would pick another phenomenon highlighted in the document, which is the growth of unregulated legal services.
Along with unmet legal need, this seems to me the second giant of the current scene. The aspect of these services, which is in my view the most challenging, is the growth of online legal services run by large companies based principally outside the UK, with resources and methods with which most current legal providers cannot compete.
The LSB takes a rather passive approach, suggesting minor activities, and saying that the regulated and unregulated should work side by side. But I would replace the LSB’s proposed Theme A with another, which would read ‘ensuring that unregulated legal services meet the public interest’ or some such wording to bring it within the LSB’s remit.
I sympathise with the LSB for wishing to cling on to the People’s Prime Minister, the Third Way and facts being always mediated by spin doctors. Horrible things have happened since 2007. But the rest of us have moved on, and the proper promotion of the regulatory objectives requires that they do, too.
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