An open and shut case

Posted by Neil Rose, Editor, Legal Futures

Legal regulators' two favourite words

I’m feeling a rant coming on, so bear with me. In the two-plus years of this website, I have had cause to complain about the lack of transparency of many of the bodies involved in the regulation of the legal profession – see this blog from last year and this one too. I have ample cause to do so again, unfortunately.

First up is the Legal Services Board (LSB), whose approach to the publication of papers and to holding open board meetings is frustrating to say the least and in stark contrast to its demands of transparency of others.

Well, yesterday I got the limited satisfaction of knowing that it’s not just me. The triennial review of the LSB included a recommendation that it (and indeed the Office for Legal Complaints) should consider whether holding an open board meeting “is appropriate to its work in order to improve the openness and transparency of the boards”.

Now, despite this, I don’t hold out a great deal of hope. The LSB has always been steadfastly against the notion (I’ve asked often enough) and so I suspect that even if it arranged one, it would be a showpiece occasion that tells onlookers little or nothing about how the LSB operates. Still, it would be a step in the right direction. I now just regret not making a submission myself to the review about the LSB’s recalcitrant attitude towards publishing its working papers in a timely fashion.

But, not for the first time, let us not stop at the LSB. It is remarkable (to me, at least) that it is only half way through 2012 that we learn the Law Society is running a £10m deficit budget for this year, and that the problems with its and the Solicitors Regulation Authority’s IT systems mean that the practising certificate fee has to go up.

In years gone by, budget discussions were held openly by the SRA and the Law Society ahead of the final figure being approved. One might think this healthy. But no longer. This year and last, a Law Society spokesman tells me, discussion was held in secret (‘part 2’, in Chancery Lane speak) and only became public once agreed. “It is covered by the rules governing what is appropriate for part 2, as commercially sensitive information is sometimes drawn upon to reach the decision,” he said. Strange that this wasn’t a problem for all the years up until 2011.

And then there’s the annual report, put to the annual general meeting yesterday. It’s not the easiest document in the world to find (the most recent one on the page of the Law Society’s website where it’s meant to be is from 2009 – you can find 2011’s hidden away here; one might have thought the annual report would be flagged up in yesterday’s Professional Update e-mail, but one would be wrong). It’s a long old document but very light on detail; for example, where does the Law Society make its £13m of additional income from? If you look at the 2008 annual report, for example, it gives a clear breakdown; for 2011, there’s nothing.

This growing secrecy is reflected in ever thinner and uninformative published papers for its various boards and committees. As I have written before, the society used to have a very positive and refreshing attitude towards publishing working papers, right up until the point that people such as me (indeed, I would be so immodest as to suggest particularly me) started actually reading them and reporting what they contained.­

Now you’re lucky to get an agenda and the minutes of the last meeting – the management board, the main committee underneath the council, has seemingly given up publishing anything and when recently I sent an e-mail to the address it says you should use with requests about papers and so on, I never received a reply. As for the regulatory affairs board, well it has never shown any interest in letting the profession know what it’s up to.

Sadly, I can continue my tour of poorly performing regulators. The board of the Solicitors Regulation Authority has an open part of its meetings, but there is the strong impression that it’s all been sorted out in private and such debates as there usually are (and I am being generous in describing them as such) are largely anaemic. Either that or it’s the most supine group of regulators known to man, and I don’t think that’s the case. This too has steadily worsened over the years.

The SRA is also meant to publish quarterly performance reports. Here we are in July, and we have yet to see how it performed in the first quarter of 2012, let alone the second quarter. I have asked and asked and asked about this, and nothing happens.

On the plus side, and more importantly, however, the SRA’s sudden commitment to publishing details of the waivers it has granted, starting with alternative business structures, is to be strongly welcomed. The way it reports disciplinary decisions on the ‘Check a solicitor’s record’ part of its website has also become much clearer than it once was.

One cannot talk about a lack of transparency in the legal profession without mentioning the Solicitors Disciplinary Tribunal, which historically has always been the most secretive and unhelpful organisation of all. Crucially the actual hearings are generally in public, of course, but otherwise the doors are not easily prised open. Judgments appear randomly on its website, often months, even a year, after the hearing and decision.

Let me give credit where it’s due and praise the Bar Standards Board for having lengthy sessions in public, releasing detailed papers, and having proper debates. Would that the rest of the Bar were so progressive, however – don’t get me started on the Council of the Inns of Court.

So all in all it’s not a pretty picture. Of course I want to get my hands on as much information as possible so as to generate stories to fill this website. But we are in an era of openness and transparency like never before. These are bodies funded to the tune of many millions of pounds by the profession and it behoves them to have a clear and rigorous commitment to these principles at all times and not just when it suits them, as is largely the case at present. They have a long way to go.


1. As if by magic, a few hours after this blog went live, the SRA finally published its Q1 performance report. A happy coincidence, I’m sure.

2. On Monday 9 July I wrote this story about changes to the make-up of the SRA board. Some members have been reappointed and some will be leaving the board next year and the year after. I asked the SRA which members are staying and which are going; unaccountably, it is refusing to tell, saying that this information will only be released once the appointments process has been completed. Why? Who knows.



    Readers Comments

  • Surely these guys know the meaning of ‘transparency’, perhaps not…

  • Covering up reports is nothing new. Did you ever hear of, let alone read the “Review of Demand, Supply and Purchasing Arrangements – Survey of Legal Aid Firms 2003″ commissioned by the Department for Constitutional affairs and carried out by Otterburn Legal Consulting. Didn’t think so. I fortunately got hold of a copy because one of my mates was partner of one of the small number of firms participating in the review. It changed my thinking – from being a predominantly legal aid firm, we conducted a very slow and expensive process of dumping almost all our legal aid cases, replacing them with proper work. It was the best thing I ever did in business.

    Apart from my own copy, I have never seen mention of this report or talked to anyone who was familiar with it – apart from one well-known legal academic – who confirmed to me that it had apparently been published very quietly three or four years later.

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