LeO on Leveson: law shows that statutory regulation does not harm independence

Sampson: never felt any political pressure

The press should look to the legal profession for reassurance that statutory underpinning of regulation does not impinge independence, the Chief Legal Ombudsman and the Law Society have said.

Writing before Lord Justice Leveson delivered his report, Chief Ombudsman Adam Sampson said that despite claims that some sort of statutory regulation is an outrageous attack on freedom of speech and the liberty of the individual… as the legal profession knows, the ending of untrammelled self-regulation is not the start of an automatic road to tyranny”.

He recounted a Legal Services Board meeting earlier this week at which both the board and ombudsman’s draft business plans were discussed. “At no point did anyone express any concern about how government might react to what we were suggesting. Far from it: one piece of feedback we got on the OLC (Office for Legal Complaints) plan was that we might redraft one sentence to emphasise how independent we were from government interference.

“And even where I have been dealing with complaints from high-profile political players – and we have had one or two of them in the couple of years we have been operating – I have never felt any pressure to decide them according to the prevailing parliamentary view.”

While acknowledging that “media regulation is likely to be a far trickier affair than legal regulation”, he said there are some principles which should guide any new arrangements. “First, there is the question of independence. Critics of the notion of statutory underpinning are very quick to talk of the need for independence from government. Of equal importance is independence from the profession under regulation. How can any consumer have confidence in the integrity of the regulatory and redress arrangements when they are in the hands of the very people whose behaviour they are seeking to control?

“That is why the LSB has been so quick to press the first-tier regulators on the make-up of their boards and why, as Chief Legal Ombudsman, I cannot myself be a lawyer.

“Second, there is the principle of effectiveness. Any regulatory or complaints handling arrangements have to be able to enforce decisions. Whether this is by statute or by contract doesn’t appear to me to be profoundly important: whatever works in the individual circumstances. However, the more powerful the interest group, the more need there may be to consider enforcement arrangements which bind that group closely and make it impossible for them to flex their considerable muscles when things go wrong.

“When newspapers have multi-million pound incomes and will sell huge numbers of additional copies when they print particularly scandalous stories, relatively small financial penalties for transgressions may have little impact on behaviour.”

The final principle is the need not to confuse regulation and complaints handling. “While the two are linked, they are very different things. It is possible, for example, to have statutory complaints handling with almost no statutory regulation: estate agencies have to sign up to an accredited ombudsman scheme but there is no estate agent regulator.

“The issues faced by the Press Complaints Commission in enforcing a code of press behaviour are very different from their effectiveness (or otherwise) at obtaining redress for individuals who have been wronged. Being clear about the role of redress and regulation is a key principle which needs to be adopted.”

Law Society chief executive Des Hudson concurred, saying the judge had taken great care to distinguish between state-run regulation, and a system which is put into motion and recognised by statute. “Lawyers have already gone through this crucial transition. There are indeed striking similarities between the model Leveson recommends for future regulation of the press, and the regime for legal services.”

He suggested this was unsurprising, given that both need independence. “Few would argue that the standards the 2007 Legal Services Act places on the Solicitors Regulation Authority does anything to inhibit solicitors from representing their client’s best interests. In fact, the regime explicitly reinforces this principle.”



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