Keen: “Room to review” legal regulation regime

Keen: Present regime was product of compromise

There is “room for review” of the legal regulation regime, made more urgent by the developments in technology, Lord Keen, the Ministry of Justice’s spokesman in the House of Lords, said yesterday.

In the strongest indication yet that the present government is interested in reviewing legal regulation, Lord Keen said the entry of technology-led organisations into the legal market would “raise issues over regulation of the delivery of legal services and indeed the definition of legal services themselves”.

The peer is a QC who is also Advocate General for Scotland, and his role at the Ministry of Justice includes advising Lord Chancellor David Gauke on legal services and the relationship with the legal profession.

Speaking in London at a Westminster Legal Policy Forum event on technology and the legal market, Lord Keen praised the Solicitors Regulation Authority for its innovation space, a “regulatory sandbox” that allows businesses to test new ways of delivering legal services without the fear of breaking its rules.

“I do believe that we are going to require some flexibility in the area of legal regulation in order to accommodate these technological changes,” he said.

Expanding on this, Lord Keen explained: “The present regime, laudable though it was at the time, was the product of compromise – I think everyone would agree with that.

“And sometimes when I look at the coach of legal regulation in England and Wales, I can’t help but notice there are five wheels rather than four. I think there is room for review of our legal regulation regime, but it’s made more urgent by the developments we are talking about.”

He said legal regulation should embrace technology rather than “throw up the barricades and say ‘you can’t come in, these are reserved matters’”.

He cited legal action taken by the French Bar against lawtech companies for infringing reserved areas of work, describing it as “the King Canute approach to regulation”, adding: “I don’t believe that’s the way forward so far as regulation is concerned; we’re going to have to accommodate these changes, not resist them by hoping the tide never comes in.”

The session was chaired by Lord Falconer, who as Lord Chancellor oversaw the passage of the Legal Services Act 2007.

He acknowledged that regulation could be streamlined, but said it was “not the right way to be driving reform at the moment”.

The focus should instead be on dealing with “the crisis in the courts and with access to justice”, he argued.

Also in his speech, Lord Keen stressed the need to look at data regulation too, so as to “ensure that relevant data is not only in public domain but available and accessible for utilising by those developing lawtech”.

He praised universities that were “rising to the challenge of lawtech” by building modules into their law courses and highlighted ethics as “quite a challenge as we go forward”, for example the notion of sentencing by algorithm and questions around unconscious bias.

Speaking at a later session, Professor Stephen Mayson – who is leading an independent review of legal services regulation – pointed out that much of the discussion had been about lawyers, rather than legal services, “as though one is always necessary to the other”.

He continued: “Lawyers are currently a means to an end – a client solution or a client outcome. What happens when lawyers are no longer the means, or the only means?

“My concern in those circumstances is that regulating territorially, through professional titles built around the flawed foundations of reserved activities, will most likely fail to offer clients, consumers and the public the necessary protections they seek when they use legal services.

“That’s not to say this is binary question of either/or; it should be quest for both/and.”

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