The Legal Services Board (LSB) has been warned against trying to force the introduction of the civil standard of proof in the Solicitors Disciplinary Tribunal (SDT) without proper consultation.
The Law Society told the board that it was “inappropriate” to use performance assessments of the regulators it oversees to require them to introduce a lower standard.
The LSB has made no secret of its belief that the SDT and Bar disciplinary tribunal should use the civil, rather than criminal, standard of proof – the Bar Standards Board is currently consulting on it.
The LSB recently consulted on changes to the way it assesses the performance of the frontline legal regulators, and proposed that in judging the effectiveness of enforcement procedures, one factor would be compliance with its stated position on the standard of proof.
In its response to the consultation, published this week, the Law Society said the oversight regulator had “overstretched its position”.
“The Solicitors Disciplinary Tribunal currently applies the criminal standard of proof. Very strong weight of authoritative and relevant case law supports the use of the criminal standard of proof in tribunal proceedings.
“We think it is inappropriate for the LSB to use its performance assessment framework to require a certain standard of proof. Before any decision is taken on the standard of proof to be used in the future, there should be broad engagement and consultation.”
The society added: “It would be more appropriate for the LSB, in its performance assessment framework, to state that the standard of proof used in enforcement procedures must appropriately and sufficiently protect the public interest.”
The Law Society, which has frequently criticised the Solicitors Regulation Authority for demanding unnecessary rule changes based on insufficient evidence, said the “most significant gap” in the LSB’s performance standards was in this area.
The society said it was “critical” that the LSB was presented with sufficient evidence of the impact of rule changes on solicitors and consumers when assessing whether frontline regulators were acting in accordance with the regulatory objectives and best practice.
An equality assessment was not enough, and only a “full economic impact assessment” would enable the LSB to assess the impact of a rule change and whether there was a robust evidence base.
In its response, the Bar Standards Board (BSB) questioned the change in emphasis from self-assessment to assessment by the LSB.
“Such an approach places additional burden on the capacity and capability of the LSB to be in a position to conduct such assessments, whilst at the same time meeting its own strategic aim of reducing its costs.
“The BSB would be interested to understand how this will be achieved given the current staffing model of the LSB.”
The BSB noted that there was “considerable emphasis placed on evidence gathering and understanding the market” in the new performance standards.
“The BSB is supportive of this as a means of effective regulation but this should be balanced against the pressure on regulators to manage its costs in a proportionate and targeted way.”
The BSB said the narrowing of the grading scale for each standard to ‘met’ or ‘not met’, removing the old category of ‘undertaking improvement and work is well underway’, did not allow for an “incremental approach” to meeting minimum standards and was “too blunt” a measure.
“For example, the BSB may have a three-year programme of research to develop its evidence base – assessment against the standards in year one might result in a ‘not met’ grading whereas assessment in year three could result in a ‘met’ rating.”
The Legal Services Consumer Panel (LSCP) suggested a clearer grading would be ‘Met, Needs Improvement and Not Met’.
The LSB is no longer planning to carry out performance assessments at set intervals.
Panel chair Dr Jane Martin said: “This chimes with the risk-based and outcome-focused approach. However, there is a clear risk that this might be perceived or inadvertently become light-touch regulation.
“Public confidence in the regulatory framework is essential and we would urge the LSB to keep this approach under review and carry out benchmarking exercises at realistic and sustainable intervals.”
A spokeswoman for CILEx Regulation said: “The proposals are largely in line with what the regulator expected and whilst mindful of the oversight role of its own board, CILEx Regulation feels that what has been proposed is proportionate and much more customised than previous iterations.”