The Lord Chief Justice has outlined his “strong opposition” to a bid to allow accountants to handle tax litigation and advocacy work – and in return come under fire from the body that would regulate them.
Lord Thomas described the application by the Institute for Chartered Accountants in England and Wales (ICAEW) to regulate accountants to handle all the reserved activities as “entirely premature”.
The LCJ said a “far more appropriate next step” for the ICAEW, which already regulates probate services, was to extend its remit to reserved instrument activities and the administration of oaths.
Lord Thomas was responding to the ICAEW’s application to regulate litigation, advocacy and reserved instrument activities in the area of taxation, and notarial services and the administration of oaths across all areas.
It emerged last month the ICAEW had abandoned its attempt to train its own members to conduct litigation and advocacy work; instead, accountants who want to offer tax litigation and advocacy services will have to employ a lawyer.
The Lord Chief Justice is one of the statutory consultees for applications of this nature, and in a letter to the Legal Services Board (LSB), Lord Thomas said maintenance of the “highest professional standards of conduct and ethics” was “of great importance” to legal services, particularly in the light of strong worldwide competition which was “likely to be intensified” by Brexit.
“We simply cannot afford to imperil this at the present time or take any action without very careful thought and strong safeguards.”
The LCJ said it would be “entirely premature” for the ICAEW to seek to regulate litigation, advocacy and “by association” notarial activities, when it had “no immediate intention or ability to offer qualifications”.
Lord Thomas said the regulations needed “far more detail” on professional obligations, as well as an enhanced code of ethics. Given the absence, for the time being, of an ICAEW qualification regime for the new reserved legal activities, the LCJ said he did not see how he could properly advise on the impact on courts and tribunals.
He said representations made by the he Notaries Society and Society of Scrivener Notaries, including their call for the Master of the Faculties to continue as the sole regulator for that work, “merit full consideration”.
Lord Thomas concluded that the two reserved legal activities where his concerns about the ICAEW’s application did not arise were reserved instrument activities and administration of oaths.
However, in its response to the LSB as a statutory consultee, the Competition and Markets Authority (CMA) said it found “no evidence” that the application would prevent, restrict or distort competition.
The CMA argued that allowing the ICAEW to regulate further reserved activities could “strengthen competition”, and put “competitive pressure on the pricing of these services and broaden access to justice”.
The authority said the “positive effects of new entry into the market” were likely to outweigh concerns such as the scope of taxation services or qualification requirements.
The final statutory consultee, the Legal Services Consumer Panel, said it was “broadly supportive” of the application, but concerned that the ICAEW was “still one body carrying out both regulatory and representative functions” and allowed client money to be placed in accounts outside the UK.
In its response to the LSB to Lord Thomas’s comments, the ICAEW said it did “not understand” the basis of the LCJ’s concerns that ethical standards would be undermined.
Its application would “maintain the status quo, as only lawyers with qualifications that currently enable them to conduct litigation and appear in the courts would continue to be able to do so”.
The ICAEW said Brexit was “currently not law and the application process should be dealt with on the basis of current law, not future political circumstance”.
The institute went on: “The courts have recently fought to maintain the independence of the judiciary from the political process; the judiciary should not be compromising its stance on this in its own internal processes.”
The ICAEW concluded that it was “confident that the concerns raised by the mandatory consultees had been adequately addressed”.