The Legal Services Board (LSB) could start reviewing regulators’ case files to increase its oversight of the quality of their disciplinary decisions in the wake of the Leigh Day case, it has emerged.
Adding this to more high-level reviews already undertaken might be a “sensible next step… so that we can better understand how they are applying policies to effectively protect consumers and promote the regulatory objectives in practice”.
A paper before the LSB’s recent board meeting noted that “there have been occasions where greater oversight of enforcement by the LSB has been called for publicly, for example, in relation to the SRA’s prosecution of Leigh Day”.
In that case, where both the prosecution and appeal failed, the oversight regulator said it followed up with the Solicitors Regulation Authority (SRA) through its regulatory performance framework, “focusing in particular on lessons learned”.
It added: “We have not asked for, received or reviewed any files from the SRA on Leigh Day or other cases as we do not currently have powers or established processes for doing so.”
This contrasted with the Professional Standards Authority for Health and Social Care (PSA), said the LSB, which has looked at the approach of other regulators in the latest stage of its work on enforcement.
Earlier this year, the LSB completed an end-to-end review of the enforcement processes used by the SRA and Bar Standards Board. One of the three issues it identified from that was the need for assurance of the quality of enforcement decisions.
Though its most recent assessments of the regulators’ performance suggested few “high level” concerns, the paper said, “the LSB has never sought to assess the quality of regulators’ enforcement processes or work”.
As a result, it is now going to scope out the “desirability and feasibility” of incorporating file reviews within its oversight of regulators’ performance.
“Desirability considerations will include reflecting on how a change in approach would enable us to better meet our strategic objective to promote the public interest through ensuring independent, effective and proportionate regulation; as well as taking forward our strategic enforcement priorities to assure the timeliness and quality of regulators’ decision making processes and use of interim sanctions.
“Feasibility considerations will include operational requirements. On a practical level, the PSA’s review, appeal and file review processes involve well-resourced, dedicated teams, as well as requiring board and legal involvement for case meetings.
“This is a specialised and resource intensive undertaking, although the board should note that it is managed within an overall organisational resourcing model that is comparable in size to the LSB.”
However, the LSB will not look for appeal powers over cases, which the PSA has, because the Legal Services Act would need amending to provide them.