Mayson: current regime is unnecessarily complex and inadequate
Leading market commentator Professor Stephen Mayson has indicated his support for a single legal services regulator as the best way to deliver a new regime in which all legal services are regulated to some degree, with only one regulator for each of a much-expanded list of reserved activities.
In a detailed 64-page submission to the Ministry of Justice’s legal services review, Professor Mayson argued that the framework of the Legal Services Act 2007 is flawed by its reliance on the existing set of reserved legal activities and the absence of any priorities in its regulatory objectives.
As a result, “the structure of regulation that flows from it is unnecessarily complex and inadequate”.
He laid out three core principles for designing a new regime: there is regulation only where it is in the public interest and either the alternatives to regulation are less effective, or regulation provides additional protection; there is a more coherent set of reserved legal activities; and the current regulatory gap whereby non-reserved services provided by non-authorised persons cannot be subject to direct regulation is addressed.
He also suggested a hierarchy of regulatory objectives – the overriding one of which would be to protect and promote the public interest.
Professor Mayson produced a much-expanded list of reservations based on the public good or consumer protection, with all other legal activities subject to regulation – meaning anyone could handle them, but the provider would be subject to the jurisdiction of the Legal Ombudsman and could be placed on a register of prohibited persons if necessary.
Public good reservations included advocacy, litigation, public law, conveyancing, intellectual property, immigration, and law costs activities. His consumer protection reservations were made up of will-writing, powers of attorney, probate, estate administration, insolvency and claims management.
Regulating what is done is more important than who does it, Professor Mayson said: “The existing framework mixes its approach and regulates reserved activities, individuals and entities as authorised or approved persons, and the holders of certain protected titles. Based on the experience of the Legal Services Act, there is now a strong case for the principal driver of future regulation being the activities involved and the policy justification for regulating those activities.”
In his regime, professional bodies could continue to award titles and provide training and accreditation, but save in relation to reserved legal activities, “there would be no mandatory regulatory requirements, nor any need for statutory protection of any titles awarded.
This led to the possibility of specialist regulators and Professor Mayson said that to reduce the complexity and overlap of the current framework, “serious consideration should be given to each reserved activity being authorised by only one approved regulator”.
The difficulty of doing this in common fields such as conveyancing “might point towards a single regulator with specialist sections for each reserved activity”.
A single regulator might also achieve greater consistency in policy and implementation, as well as improved cost-efficiency, he suggested.
If, however, it is decided that the current multiplicity of regulators should continue, Professor Mayson said, the Legal Services Board would still be needed, and could possibly encourage co-operation between regulators – including the co-location of resources and personnel, and use of common technology – to make regulation more cost-efficient.
To read the full submission, click here.
Surely the overriding regulatory objective must be to support and maintain the constitutional principle of the rule of law, from which it would follow that the public interest would be promoted and protected? It is particularly relevant that the overriding objective be scrutinsed where the strategy director of the LSB is reporting, in his view I presume, that there is “a confusion as to what is in the public interest” by the frontline regulators and that how he is always surprised at “how often the public interest as put forward by some parts of the legal profession appears, amazingly, to coincide the profession’s particular interests”. (http://www.legalfutures.co.uk/latest-news/lsb-director-questions-independence-frontline-regulators-lawyers-oversee). What’s not to say that there would be a similar “confusion” in the minds of a new single legal services regulator?