LSB’s lay chair plan “aims to bring regulators into line”, says Bar Council

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By Legal Futures

22 November 2013

Law Society: qualities of a good chair are not removed from lawyers on qualification

The Legal Services Board wants to impose lay chairs on the frontline regulators so that they will “do more of what [it] wants”, the Bar Council has claimed.

It also argued that the number of posts to which the controversial proposal applies is so small “that the LSB must have appreciated that it would be seen as a comment on the performance of individual chairmen” – even though the LSB has “expressly disavowed this”.

In a dismissive response to the LSB’s consultation on lay chairs, the Bar Council argued that the LSB does not have the statutory power to make rules that determine who may or may not chair the frontline regulators.

Even if it did, the response continued, the LSB admitted that it has no empirical evidence to support its contentions. Further it would constitute an “unwarranted interference by the LSB with the independence of regulatory boards”.

The Bar Council said: “Our experience suggests that, if there is an issue in relation to the independence of the BSB, the SRA et al, it is that they face undue influence from the LSB…

“The consultation paper is another example of this phenomenon. It is apparent… that the LSB sees the proposed change as a means of getting the BSB, SRA et al to do more of what the LSB wants, rather than exercising their own independent judgment.”

In its equally negative response, the Bar Standards Board (BSB) said: “The proposal is based on unevidenced and unwarranted assumptions that lay chairs will behave independently in circumstances where legally qualified chairs would not and moreover that the board as a whole would behave differently with a lay chair. There is no evidence to support the conclusions regarding the degree of progress that the regulators have made [which the LSB said would have been greater with lay chairs].

“This lack of evidence is significantly at odds with the LSB’s usual insistence that evidence be available to support decisions being made by the frontline regulators.”

Noting that other major regulators – such as the General Medical Council and Institute of Chartered Accountants in England and Wales – have lay chairs, the BSB noted that its constitution already provides that the panel responsible for appointing its chair is itself chaired by a lay person.

“This method should continue and the panel should appoint on merit as it sees fit without undue restriction on the range of candidates it may consider. This is hardly a controversial position. It accords with the Nolan principles, which drive how the Commissioner for Public Appointments operates.”

The Law Society’s response similarly pulled no punches, arguing like the others that appointment should be purely on merit.

It said: “The LSB needs to look at the independence of the appointments mechanisms, the independence of action of regulators, and the composition of their boards. If these are sound, then it is hard to see what limiting the people who can be appointed as chair will achieve.”

The qualities of a good chair are not removed from lawyers on qualification and not necessarily lost during their career, the Law Society continued. “There are many examples of lawyers acting as outstanding, impartial chairs and we do not believe that the regulators should be restricted from appointing them, should they prove to be the best candidates.”

Addressing the concerns that could prompt a proposal such as this, it noted that the SRA’s current chair, Charles Plant, is a solicitor and “could certainly not be accused of being too close to the Law Society”.

Further, a perception that lawyers will inevitably act in what they perceive to be the profession’s interest is based on the misplaced view “that there is a single professional interest, shared by the whole profession… In our experience, there are very few cases where there is such a single unanimous interest – and, if there were, the regulator would not be doing its job if it did not take that seriously.”

The society suggested that a lay chair would not necessarily make the regulators more likely to agree with the LSB. “The fact that an approved regulator does not slavishly follow the LSB‟s approach does not mean that its chair is necessarily following the profession’s line.”

The Solicitors Regulation Authority also spoke out against the proposal, although it was supported by the Legal Services Consumer Panel.


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