People beyond our borders view our regulatory framework with bemusement – there should be one regulator for all UK lawyers.
The big beasts in the field of legal services regulation (and there are many of them, which is part of the problem) have now spoken about how they see the future. I would like to reflect a constituency that has not so far responded. How do people beyond our borders view our current regulatory framework? What follows is a personal view, based on listening to outsiders speak about our jurisdiction.
The complications of UK structures (miles, yards and feet; driving on the left; the House of Lords and the living aristocracy – you name it) have always been part of the charm of our country for other Europeans. But quaintness goes only so far, and when it tips over into incomprehensibility or near it, it has the potential to damage us. The pre-2007 framework for regulation of legal services, which was Heath Robinson-ish enough, always caused a wry continental smile, and only the most advanced and knowledgeable were able to recite it: three jurisdictions, two professions per jurisdiction (and barristers are called advocates in Scotland). Since the Legal Services Act 2007, you need a PhD in Anglo-complications to know that in England and Wales each of the professional bodies has now split in two, that discipline is handled by LeO, and that looming over the whole structure is the Legal Services Board. I am not the first to say that the 2007 act increased complexity beyond acceptable limits. My experience of trying to explain it to foreigners persuades me that radical simplification is required.
Second, I am able to say ‘I told you so’ about one effect of the 2007 changes. When the Clementi team came to see me during the review period, I explained that European experience showed that when you split representation and regulation between two bodies, or indeed when you give two bodies responsibility for the same turf, much energy, time and money are wasted on in-fighting. It is obvious. We had experience of it in the so-called ‘Bar Wars’ between the Law Society and the bar for many years. Instead of avoiding such disputes in future, the 2007 act created more organisations to fight over the same turf, and therefore a recipe for more wastage of resources. Does no one care about efficiency and economy? I don’t blame the in-fighters, by the way; I blame the planners who did not learn from what happened during the Bar Wars and did not think that European experience counted for anything. I wonder what an audit of the in-fighting would show has been spent overall by all the bodies, in disputes that could have been avoided by a much simpler solution.
Third, the LSB is seen abroad as unacceptable governmental interference in the independence of the legal profession. It is viewed not as a precedent to be followed, but rather as a stick with which to beat the 2007 reorganisation. I note that the LSB is described on the Ministry of Justice’s website as ‘an executive non-departmental public body of the Ministry of Justice’. The European bars – indeed, the UK professional bodies – write letters to complain when foreign governments intervene in the regulation of lawyers, citing the necessary independence of the profession. Yet the LSB is an MoJ body, whose members are appointed by the MoJ, and whose chairman is forbidden by law to be a lawyer. I know that the LSB’s self-justificatory narrative is that the legal professions cannot be trusted to regulate themselves in the public interest, and that the government has to intervene to protect the consumer. Was it by magic, then, that pre-2007 solicitors and barristers turned into such a successful global profession, and the English judiciary (supplied by barristers and some solicitors) became so admired? Lawyers abroad have difficulty understanding why the government needed to butt in to play such a prominent role, and are not happy about it.
So, based on such views, I suggest the following two basic proposals, which are not detailed recipes, but rather tendencies to pursue. First, there should be a radical slimming down of the bodies responsible for regulation. Can I suggest that the starting position is that there should be a single body for the whole UK (all the lawyers’ professions, all the geographical jurisdictions), and we work from there? Second, the over-prominent role of the government should be removed immediately, and models from other countries should be looked at instead – such as oversight by the courts, if oversight be indeed needed.
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