The Legal Services Board (LSB) is planning to review a “random sample” of regulators’ disciplinary decisions to ensure the right processes and procedures are in place.
The LSB said that although it lacked the power to appeal to the High Court against legal regulators’ decisions, there was “no impediment to the development of a considerably more rigorous approach” to oversight than it currently had.
Last year, the LSB completed an end-to-end review of the enforcement processes used by the Solicitors Regulation Authority (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, as a result of which it began to scope out the desirability and feasibility of incorporating file reviews into its oversight of regulators’ performance.
The issue became particularly high profile as a result of the SRA’s failed prosecution of Leigh Day.
In a recent paper, the LSB said the Professional Standards Authority for Health and Social Care (PSA), which oversees nine statutory bodies regulating healthcare professionals, not only had a power of appeal to the High Court, but undertook audits of disciplinary cases closed by regulators before hearings.
“This involves reviewing a sample of cases and assessing whether these cases were progressed in line with relevant policies and procedures.”
The LSB said that, as a “basic principle”, it “would not review any single decision and determine whether or not it was ‘correct’”, instead it would look at samples of decisions and consider whether the processes and procedures used “support sound decision-making”.
For example, it could request a “random sample of decisions within set parameters”, such a particular complaint or period of time, and review them against the regulator’s own processes and targets, including triage arrangements or timeliness.
The LSB said its legislative framework was “markedly different” from the PSA, with broader powers in some areas and more restricted powers in others, such as the right of appeal.
“However, a clear conclusion of our research is that the absence of such a power need be no impediment to the development of a considerably more rigorous approach to oversight than we currently have.”
The LSB said it was “entirely open to us” to develop an audit process “along similar lines to the PSA”.
The oversight regulator is to develop its audit process this year, which will be used at first to support targeted reviews of one or two regulators or a thematic review of the LSB’s new “well-led” performance standard.
“In introducing these new measures, we are increasing our level of scrutiny of the regulatory bodies. In doing so, we are being more explicit in our expectations and the ways in which we gain assurance.”