The on-going Clementi consultation on the future of regulation and competition is the most profound review of legal services in a generation.

This week, Janet Paraskeva launches a series of articles analysing the issues canvassed in the consultation paper

After several months of anticipation, Sir David Clementi has now published his consultation paper on the future of the regulatory framework for legal services in England and Wales (see [2004] Gazette, 11 March, 1).

One of the most important issues to be considered by the review is what kind of structure should be adopted for the regulation of legal services.

Sir David describes two main models, which he calls A and B, plus a third model, B+, which is a variant of the model B.

Model A, as described by Sir David, would entail the removal of all the regulatory functions from the professional bodies, vesting them in a legal services authority instead.

This body would directly regulate the providers of legal services and would be in some respects analogous to the current Financial Services Authority.

Sir David suggests that a legal services authority would be responsible for setting and enforcing the rules that govern the provision of legal services, providing advice and guidance on general policy, and would exercise investigative, enforcement and disciplinary powers.

The main alternative to this structure would be to establish an additional layer of regulation in the form of an overarching regulator - which Sir David proposes might be known as the legal services board.

This structure - model B - would oversee the regulatory work of the existing professional bodies, which would continue to exercise their regulatory functions, in more or less the same way that they do now.

The legal services board would be responsible for approving the rules and procedures of the professional bodies and Sir David envisages that it might also oversee enforcement of the rules.

A variant, model B+, is also suggested.

This would operate in the same way as model B, but with the additional stipulation that the representative work of the professional body would either have to be separated and two organisations created, or clearly ring-fenced within the existing professional body.

The B+ model also offers a number of possibilities between the two principal models of A and B, which are, as Sir David says himself, at opposite ends of the spectrum.

The consultation paper asks about the advantages and disadvantages of both models.

It could be argued that the legal services authority model would help ensure consistency of regulation across all the professions and make it easier to bring within the regulatory embrace those providers of legal services - such as claims managers and will-writers - who are currently unregulated.

It would also be convenient for the regulation of multi-disciplinary partnerships, if they were introduced.

On the other hand, such a large body could easily become bogged down in its task, and become slow and unwieldy.

It might also reduce the sense of responsibility and ownership of regulation and professional values felt by professionals, and may lead to an inappropriate degree of government intervention in the workings of the legal professions.

In short, it could mean a real threat to the independence of the profession.

On the other hand, a legal services board as envisaged in model B could build on the strengths of the existing regulatory structure and help ensure a consistent approach to regulation across the legal professions, without the risk of inappropriate government intervention.

It would also help maintain professional commitment to the regulatory structure and thus help promote and maintain high standards in the profession.

On the down side, this lighter-touch oversight body might lead to some inconsistencies in rules across similar types of service.

In addition, careful consideration would have to be given to the question of how proper lay representation would be secured in such a structure.

But it is perhaps the B+ variants that lend themselves best to creative thinking.

It provides a number of possible solutions to handling another of the central questions posed in the paper - that which concerns the dual role of the professional bodies, representing the profession as well as regulating it.

I hope the profession will be imaginative in responding to the ideas in the consultation document, and I am sure that is what Sir David is hoping for.

We should not assume that we have to take one of the models he proposes off the shelf as a ready-made package.

Nor can we lift a new approach directly from another profession.

The General Medical Council/British Medical Association model is often cited as a good alternative for lawyers; however, while it might work quite well for doctors, that doesn't mean it will be readily transferable to the solicitors' profession.

There is no question that we need to learn from other professions and that we need to give careful consideration to the views expressed in Sir David's paper.

But to do the legal profession justice, we need to be much more resourceful and creative, so that we can propose a solution to the regulatory conundrum that guarantees the protections offered to the public, while ensuring that strong and independent profession-led regulation is preserved.

Janet Paraskeva is the Law Society chief executive