Mayson: Activity based regulation not a radical step

Mayson: Cannot support ‘no change’

Moving to a system of regulating lawyers by the work they do, rather than the professional title they hold, would not be a radical departure from the current regime, Professor Stephen Mayson has suggested.

He also said he would recommend in his review of legal services regulation that it was time for regulators to be independent of their representative bodies.

Professor Mayson, who is currently writing his final report, said this was the one issue he was already confident to declare on publicly.

He also indicated that his work was leading him to the conclusion that reform is more urgent than he originally believed.

The academic is running the independent review – supported by University College London – and last September published an interim report that said the current regulatory regime “provides an incomplete and limited framework for legal services regulation that will struggle in the near-term and beyond to meet the demands and expectations placed on it”.

Speaking at a Westminster Legal Policy Forum event earlier this week, he said had “some sympathy” with the argument thrown back at him that the legal professions have experienced, and continue to face, enough change for further reform to be disruptive and unwelcome.

“But I am not going to offer any encouragement or shelter to the legal professions to sit, Canute-like, denying and resisting what is going on around them.

“In any event, my mission in this review is not to look at regulatory reform considering only the perspective or concerns of any group of authorised, protected, privileged providers. I am far more concerned about the consequences for ordinary citizens of not being able to access or afford regulated legal services…

“I am not therefore persuaded that ‘no change’, or ‘no change yet’, is an outcome that I can support.”

Professor Mayson questioned whether a future regulatory regime could continue to keep out unregulated providers or should instead “find a way of extending regulatory protection to under-served and vulnerable citizens”.

He explained: “There is something deeply uncomfortable about the current regulatory approach that says, in effect, ‘Law is too complex for ordinary citizens, and too important to society, to allow anyone other than a qualified lawyer to be regulated for its provision’.

“Even if we continue to stretch the boundaries of what we might mean by ‘lawyer’ in this context, it is still ultimately an exclusionary and protectionist position.”

Worse still, he continued, was the corollary of saying ‘If you cannot afford a regulated lawyer, then we are prepared to leave you to your own devices’.

“At this point, presumably, the law is no longer to be regarded as ‘too complex or too important’, since we knowingly drive people into doing nothing, or representing themselves, or engaging someone who is not regulated.”

Professor Mayson said he continued to struggle with the link between being awarded a professional title and being authorised to conduct several reserved activities. “And then, of course, the ‘imprimatur’ of regulation is further extended to any non-reserved activities that a solicitor might wish to carry on.”

In any case, the system was already in many ways activity based, which dominant providers or specialist regulators (or both) for many legal services, such as the Bar Standards Board (BSB) for advocacy, and the Council for Licensed Conveyancing (CLC).

“By and large, these specialist regulated activities secure regulation through the recognition of a title, but it is questionable whether such a connection is in fact necessary.

“With a different approach, for instance, perhaps solicitor-advocates could be regulated by the BSB, all immigration practitioners by the Office of the Immigration Services Commissioner, all conveyancers by the CLC, and so on.

“So if, for example, we were to consider extending regulation to all will-writing and estate administration, the answer need not necessarily be to make them reserved activities. Instead, we might nominate (or create) a specialist regulator who could deal with all appropriately qualified practitioners, irrespective of their title or professional background.”

Professor Mayson said the Law Society’s response to his interim report showed that it regards its primary role as being to represent the views and interests of its members.

“I respect that – indeed, I admire and welcome it. I regard it as vital that the professions continue to be represented robustly and fearlessly.

“Consequently, they should no longer be constrained in that role by the artifice of approved regulator status or the contortions of the internal governance rules. My certain view, therefore, is that the time has come to cut the Gordian knot between approved regulators and representative bodies.”

The academic said the necessary change could not be achieved within the framework of the Legal Services Act 2007.

“I am not looking for the perfect future system of regulation… but I am sure that we could do better.

“This begs the inevitable question of how much longer reform can wait. I said earlier that I have so far been open-minded on the question of timing.

“However, as I enter the concluding phase of the review, I am increasingly convinced that some change is needed sooner rather than later. To the question of whether the necessary reform can be incremental or needs to be radical, perhaps the answer is that we need to contemplate both.”

The final report should be published in around two to three months’ time.

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