Law Society: Call for “evidence and accountability” in regulatory reform
The Legal Services Board (LSB) should focus on tackling sexual harassment in the workplace instead of pushing its agenda of ‘change for change’s sake’, the Law Society has said.
The society said #MeToo “may no longer be making the daily headlines” but its “underlying causes and perhaps thousands of historical cases” still needed to be dealt with.
“The issues of sexual harassment and abuse have particular salience in the legal sector.
“For instance, solicitors have to comply with their regulatory and ethical duties when advising clients on the use of non-disclosure agreements, including those covering sexual misconduct.”
In its response to a consultation on the LSB’s draft business plan [1], the society called on it to seek reassurances from the frontline regulators that plans were being developed to “minimise the risks and improve the reporting” of sexual harassment and abuse, ensure that people working in legal services “at all levels” were not adversely affected and safeguard equality and diversity in the profession.
The society said the regulators should “take the appropriate steps to remedy past wrongs”, “avoid potential negative impacts on public trust” and “recognise the considerable public interest in protecting victims and holding perpetrators to account”.
The draft business plan mentioned that the oversight regulator was considering how to deal with concerns about non-disclosure agreements (NDAs).
Business minister Kelly Tolhurst launched a consultation earlier this week on changes in the law to control the use of NDAs.
Measures include clarifying in law that confidentiality clauses cannot prevent people from speaking to the police and reporting a crime, requiring a clear, written description of rights before anything is signed in confidentiality clauses and extending the law that means a worker agreeing to a settlement agreement receives independent advice on any such clauses.
Elsewhere in its response to the LSB, the society called for “evidence and accountability” in regulatory reform, and condemned the “crude and misleading way” the LSB had used findings from its individual legal needs survey when considering an application from the Solicitors Regulation Authority (SRA) for approval of its handbook reforms.
On the use of the power, under section 51 of the Legal Services Act, that allows the Law Society, Bar Council and others to levy fees for certain non-regulatory representative activities (called ‘permitted purposes’) as part of practising fees – which the LSB is set to review – the society said only that it was in favour of “a fair and reasonable review” of non-regulatory purposes, “especially if it can provide greater clarity on how various activities ought to be categorised”.
The society concluded it was “broadly supportive” of the LSB’s objectives in the business plan, but said that “during a time of change and uncertainty” the LSB should concentrate on instilling stability and confidence.
“We are still uncomfortable with the emphasis that the strategic objectives place the LSB working ‘as an agent of change’, rather than reflecting on the current needs of the profession, consumers and wider society for stability, certainty and confidence in the rule of law – ‘change for change’s sake’ is not in itself a positive value.”
In its response to the LSB, the Bar Council said it believed that the proposed ‘single digital register’ of legal services providers was unnecessary.
“The Bar Council already has its own register of barristers and a single register would to some degree duplicate this.
“We think the improvements made to the Legal Choices website and measures being undertaken by regulators and representative bodies are sufficient to enable consumers to make an informed choice about legal services.”
The Bar Council said that, if the LSB went ahead with its review of section 51, it wanted to emphasise “the importance of this funding to the delivery of activities by the Bar Council” in the public interest.
“Examples include its law reform and public legal education work as well as its delivery of ethical and practice management guidance to barristers and chambers.”
Meanwhile the Chartered Institute of Legal Executives (CILEX) said the LSB would have an important role to play in “maintaining a level playing field post-Brexit”.
CILEx said that unlike other lawyers, chartered legal executives were not recognised by the EU Lawyer Recognition Directive, despite government lobbying.
Describing this as “outdated”, CILEx said it had asked the government to ensure that any new agreement on lawyer recognition treated CILEx lawyers “as on par with their counterparts in the legal profession”.
In its response to the draft business plan, the SRA said “maximising the independence of regulation” should be the LSB’s priority over the next three years and the best way to do that was by establishing the SRA as a separate legal entity within the wider Law Society group.
“The separate entity would have complete separation in terms of governance, operations and resources.”