The Legal Services Board (LSB) would be “unwise” to increase or reduce the list of reserved legal activities at the moment, the Legal Services Policy Institute has warned.
In the first part of research into reserved legal activities, published today, the Institute’s director Professor Stephen Mayson said he had found the origins of the six activities currently reserved to be “remarkably obscure” with “little basis for suggesting a common policy rationale that justifies their existence”.
For example, he discovered that the conveyancing monopoly came about in 1804 when Prime Minister Pitt the Younger wanted to appease a profession unhappy with his plans to increase taxes on articles of clerkship and practising fees.
Professor Mayson said it would “unwise to consider any particular legal activity for inclusion or exclusion in the absence of a broader set of criteria that could be generally applied”.
The LSB is supporting the research (although not financially) and its 2010/11 business plan includes consulting on a “decision framework” for making a legal activity reserved. However, the board recently said it would fast-track a decision on will-writing because of the level of public concern about it (see ).
Professor Mayson is now starting work on the second part of the research, which will seek to suggest a contemporary policy approach to regulation and reservation. He will be looking at whether there is a public interest rationale for any legal activity being regulated, and if so whether it should be done by reservation or some other form of regulation. Further, if there is a case for regulation, should it be of the activity, of the individual who provides the service, or of the entity within which an individual is working?
There are currently six reserved activities, meaning that only authorised persons (that is, the various kinds of regulated lawyer) can do them: the exercise of rights of audience, the conduct of litigation, conveyancing, certain probate activities, notarial work, and the administration of oaths.
To complicate matters, Professor Mayson pointed out that some other services are regulated by statute – including immigration advice, claims management work and insolvency – while there are those which are neither reserved nor regulated, but become regulated when the person carrying them out is. This leads to a “regulatory gap”, said Professor Mayson, where consumers are only protected if they choose a lawyer to do the work, including will writing.
Crispin Passmore, the LSB’s strategy director, said it needs to think about the criteria for reservation and described the report as “an important contribution”. He said he expected the criteria to be set before a decision is made on will-writing, unless evidence of consumer detriment came “quickly and clearly”, requiring a speedier verdict. The LSB is commissioning separate research to get a full picture of the issues around will-writing (see story).
The Institute is part of the College of Law. Policy assistant Olivia Marley co-authored the strategic policy paper with Professor Mayson.