The Legal Services Board (LSB) has launched a consultation on its 'Draft strategy for legal services regulation and draft business plan 2021-22', which will close on 5 February 2021.
We all know that one of the principal drivers behind the Legal Services Act 2007 was to ensure that the regulation of lawyers was no longer undertaken by lawyers.
But an unforeseen consequence was that regulation was taken away from democratic bodies like the Law Society (maybe imperfectly democratic, but democratic nevertheless, with elections for Council seats) and given to an overarching organisation whose members are appointed by the state.
On top of that, whereas the Law Society has a Council of 100 members, with numerous committees packed with dozens of experts from a wide range of firms, geographical areas and areas of expertise, the LSB is made up of precisely… nine members.
It is impossible not to see both the process of appointment by the state, and the shocking reduction in numbers involved in overarching regulation, as a narrowing down of thought, and of competition between thoughts. Yes, the LSB lists the number of stakeholders with which it has engaged, but a short meeting is not the same thing as continuous engagement with hundreds of people meeting regularly, particularly when in the LSB’s case it is the same nine people appointed by the state deciding what to take forward.
This is not academic speculation. To glance at the areas being looked at by the LSB in its strategy document is like entering a small windowless room with a fug from long over-occupation. There is no breeze of ideas blowing through it. The same old topics appear time after time – 'Ensuring high quality legal services and strong professional ethics' or 'Reforming the justice system and redrawing the regulatory landscape'.
Looking at the world now, I would propose that the major trends are: climate change, the pandemic, globalisation, the rise of China, and Brexit. Each of these has a demonstrable impact on the legal profession. But, apart from the pandemic, you will not find any of them mentioned in its consultation.
To take globalisation-China-Brexit first, they each impact on the international standing of the profession. For instance, our legal services markets in Europe are now much more restricted following Brexit. China is expanding the reach of its legal services through its Belt and Road initiative, which is building communications and infrastructure across Asia to Europe. There are English language and English law courts and arbitration centres springing up all over the world in direct competition to our own courts and legal profession. What is the LSB proposing about that?
Well, nothing. It says in its recent State of Legal Services 2020 report, on which the strategy is based: ‘Internationally, England and Wales continues to be a dispute resolution centre of choice. Overseas jurisdictions have adopted our legislative model to open up their markets.’ This is one of the few references to the international aspect of the profession, despite around 20% of the profession working in the City of London, bringing in the bacon – economically speaking, in billions of pounds – to maintain the reputation of the English legal profession abroad.
It seems strange that the LSB should ignore such a significant part of the profession.
And then we come to climate change and the pandemic. The pandemic receives a decent mention, but climate change not at all. Neither is mentioned in respect of the one area where they count: training solicitors to be ready for the changes. The LSB has launched an ongoing competence project to find out about current approaches to competence assurance, but it is a slow process and will doubtless not deliver results for years. Solicitors need to be trained now in climate change and the consequences of the pandemic.
Regarding climate change, it is one of those topics which does not present itself as a legal topic. Clients do not come in and declare that that is their problem. It is also cross-disciplinary, covering not only, say, environmental law but also human rights.
The pandemic has also thrown up serious issues relating to the use of technology and solicitors’ knowledge of what they are using. To take video platforms, which are doubtless being used many times daily in all law firms, solicitors mostly know next-to-nothing about the platforms’ terms and conditions and what they do with the data.
All the while, the SRA’s current training rules are based on the philosophy that solicitors should be responsible for their own training after qualification, regardless of whether they are aware of emerging areas. The LSB needs to take urgent action to direct regulators to take account of the training needs of the profession in emerging areas.
These are just a few brief thoughts, quickly stated. The intellectual advantages of democracy and numbers have been lost through our state-appointed nine.
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 are not made in his capacity as a Law Society Council member nor on behalf of the Law Society