Edmonds backs BSB as advocacy regulator; MR warns over “consumer fundamentalism”

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By Legal Futures

7 November 2010

Edmonds: no tension between ABSs and the rule of law

 The Bar Standards Board (BSB) should be the sole regulator for advocacy, the chairman of the Legal Services Board has said. 

Speaking at a BSB-organised session at Saturday’s Bar Council annual conference in London, David Edmonds said he agreed with the Master of Rolls, Lord Neuberger, who had earlier told the conference that the number of regulators “all regulating [advocacy] is ridiculous” and that if the 2007 Legal Services Act “does not lead to activity-based regulation, it will have failed”. 

Asked by former Bar Council chairman Desmond Browne if his agreement with this meant the BSB should be the regulator of advocacy, Mr Edmonds said it did, adding that he does not think there should be competition between regulators – even though the concept is implicit in the 2007 Act.

Lord Neuberger’s published speech continued (he did not actually say this): “In this absence of a single advocacy regulator – and this is not a disguised suggestion that the BSB should be that regulator – the QAA (quality assurance for advocates) scheme is the next best alternative. The judiciary will work to ensure that it works.”

However, the comments from Mr Edmonds will cast a shadow over the work of the Joint Advocacy Group – a collaboration between the BSB, Solicitors Regulation Authority and ILEX Professional Standards – to introduce the QAA, which is starting with criminal law specialists. Family advocates are likely to be next. 

Giving the keynote address at the start of the conference, Lord Neuberger said the judiciary also strongly supports judicial involvement in the QAA assessment process. “If we are to talk of consumers, judges are the ultimate consumers of advocacy services… they are essential to the quality assurance process,” he said. 

His comments will be seen as a riposte to solicitors concerned that they will be prejudiced by the involvement of the judiciary (see story in the Gazette). “A poor barrister is as inimical to the public interest as a poor solicitor-advocate, as a poor ILEX advocate, and so on,” said Lord Neuberger. “Ability and skill are relevant. The name of the profession where the quality of advocacy is being assessed is not. If judges do not act in this way, they themselves will undermine the public interest and the rule of law. That is something that no member of the judiciary can afford to do.” 

The Master of the Rolls also used his platform to look ahead to alternative business structures (ABSs) and warn against “what might be called a form of unreflective consumer fundamentalism”, in which the consumer interest takes priority over the rule of law. 

He said: “There is a very significant difference between a commercial supplier of goods, or even services, and a professional supplier of services, particularly legal services,” he said… Lawyers occupy a particularly special place in society because their field of practice is part of the very fabric of society… I am not saying consumerism has no part to play in the administration and structure of the legal profession, but I am saying that care must be taken to ensure that it does not overshadow, let alone drive out, the importance of the professional-client relationship, or the wider public interest in the rule of law.” 

Addressing the BSB session after the speech, Mr Edmonds said he saw no tension between ABSs and the rule of law (upholding which is one of the Legal Services Board’s regulatory objectives). “But the consumer who desires access to justice has been extraordinarily limited up to now,” he added. New entrants to the market like the AA and Saga’s announcement last week (see story) “enhance access to justice”.

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