Giving the judiciary a role in appointments to the Legal Services Board could help protect the independence of the legal profession, the Law Society has suggested. Responding to the government’s call for opinions on the future existence and shape of the legal super-regulator, Chancery Lane warns of the international perception that the LSB is an arm of the state.
‘Therefore it is critical that the LSB not only acts independently from governmental control, but is also seen to be independent from governmental control,’ the Society says. One way to do this would be to further remove the appointments process to the LSB from the state. ‘One way to achieve this would be to give more control over LSB appointments to senior judges,’ it suggests.
The proposal follows a call last month by the lord chief justice for judges to have a role in regulation to protect advocacy standards. Lord Thomas of Cwmgiedd told the House of Commons justice committee that judges’ interests should be represented whenever changes are made to the legal regulatory framework.
Consultation on the government’s ‘tailored review’ into the LSB and Office for Legal Complaints closed on 24 November. The Society said it had ‘a number of observations’ which cut across the questions raised in the consultation, so its response takes the form of a paper rather than specific answers.
Among to topics it raises is the LSB exceeding its remit. ‘One example where, in the Society’s opinion, the LSB did go beyond the scope of its role was in the publication of a briefing paper on Alternatives to Handling Client Money,’ it states.
‘The briefing raised concerns around the risks of authorised persons holding client money without consideration of the significant benefits that this brings to the market. The briefing did not identify the risks inherent in any alternative proposal.’
Another example is the LSB’s research on the unregulated sector. ‘In the Society’s opinion, the LSB should not divert its limited resources away from its core role of overseeing the frontline regulators.’
However the Society notes examples where the LSB ‘has provided effective challenge to the frontline regulators’. For example it notes that in 2014 the LSB refused to approve an application from the Solicitors Regulation Authority to reduce the minimum level of professional indemnity insurance.
‘The Society also believes that the LSB has done a good job providing oversight and challenge to the Legal Ombudsman in respect of its operations.’It also describes the LSB's approach to transparency as 'very positive'.