A hard Act to follow?
Date: 10 April 2009
Authors: Simon Young
Issue: Vol 159, Issue 7364
Categories: Features, Legal services, Profession
The last year has seen the creation of the various authorities required to operate the Legal Services Act 2007 (LSA 2007), and this, the first in a series exploring the effects of LSA 2007, concentrates on them. They are respectively:
● The Legal Services Board (LSB)—the űber-regulator.
● The Office for Legal Complaints (OLC)—to replace not only the Legal Complaints Service arm of the Law Society, but also the Legal Services Ombudsman and the Legal Services Complaints Commissioner.
● The Consumer Panel—created by the LSB to represent both individual and business consumers.
● The Solicitors Disciplinary Tribunal (SDT)—given statutory independence by LSA 2007 and now a company limited by guarantee.
● The professional bodies, eg the Law Society (the Society) operating either in a representative function or through their regulatory arms, eg the Solicitors Regulatory Authority (SRA).
One thing that these bodies have in common is the death of the concept that the legal profession had control over its own regulatory destiny. This is the era of the profession of “regulator”, and those in that profession will move happily from one regulated area to another in the contented belief that what they need to know about is regulation, rather than the industry they are to regulate.
A homogenous grouping
Look, for instance, at the senior figures in each body, for the exemplification of this trend. All will have been selected according to the Nolan principles for public office, and on merit above all. There is no argument, in the case of any individual, that they are not eminent and capable people. The potential problem, however, is that appointment criteria designed by those from a governmental or institutional background will always favour candidates of a similar ilk. Thus we have the following remarkably homogenous group as the leaders of the profession's regulatory organs:
● LSB chairman: David Edmonds—senior civil servant, DG of Telecommunications UK, founder member of Ofcom;
● LSB chief exec: Chris Kenny—civil servant at Dept of Health and Treasury, director of Oftel, director of Life & Pensions for the ABI;
● OLC chief exec & chief ombudsman: Elizabeth France—civil servant, data protection registrar /information commissioner, chief executive & ombudsman at the Ombudsman Service Ltd;
● SRA chairman: Peter Williamson—solicitor (remember them?);
● SRA chief exec: Antony Townsend—civil servant, senior manager and latterly chief exec at the General Dental Council.
Whatever concerns this patterning may raise, however, cannot include any reservations as to a lack of energy on the part of those at the top. The LSB in particular is clearly committed to implementing LSA 2007 as soon as is reasonably possible, and any backward-looking lawyers who are still hoping that “it will never happen” will be disappointed. The LSB has recently published its draft business plan for 2009–10 on its website, for consultation purposes, and a very determined document it is too. If it can be assumed that the consultation process will not lead to too much radical change, then it is clear that there is a well-defined and ambitiously timed path to full implementation of LSA 2007.
That has been evident from the fact that the Legal Consultative Panel at the Ministry of Justice, whose deliberations on the proposed Solicitors Code of Conduct prior to its launch in 2007 caused a two-year delay, have only held up the introduction of LDPs by one month. As from 31 March, therefore, we have been:
● able to join in the ownership and management of our businesses with other (non-solicitor) lawyers;
● able to join in the ownership and management of our businesses (subject to limitations) with suitable non-lawyers;
● required, whatever our size, and whatever the legal status of the business vehicle through which we operate, to be a “recognised body”; and
● regulated as entities, and charged, on an as yet unknown basis, for the privilege.
The LSB is therefore turning its attention to the rest of LSA 2007, and in particular to alternative business structures (ABSs), a subset of which will be multi disciplinary practices. It had been the view that these would not come into force until 2012, but the LSB has now stated a goal of 2011 for their introduction.
The LSB's draft plan indicates that it intends to issue, by the end of June, a consultation paper indicating the approach it believes should be taken to regulating ABSs. A similar exercise is to be conducted by the SRA.
Office for legal complaints
The LSB has already established the OLC board and senior management, so that the process of the transfer of functions to that body can progress. The Board's members will formally take up their posts on 1 July 2009, and it hopes to commence full operations by no later than the end of 2010. For that reason Zahida Manzoor, who currently holds the two roles of legal services ombudsman and legal services complaints commissioner, will cease to hold those roles in March 2011 and April 2010 respectively.
It is known that the OLC will establish itself in the Midlands, and of course the LCS currently operates out of the Scoiety's office at Leamington Spa. Noises have been made about taking over the LSC staff , and indeed it is difficult to see how the OLC's establishment could be achieved without absorbing the skill sets and experience which those staff hold. Also, the major improvements which the LCS has made in recent years, measured in terms of meeting the targets set by the LCS board and subject to approval by Manzoor, should have made it easier for the new body to assimilate the old.
Whether those changes are seen as progress by the profession, however, or as measures taken to meet targets with less concern for discovering the truth of complaints than for closing the file, remains to be seen. As does the profession's reaction to a regime where a firm, once complained against, is prima facie liable to pay the OLC's administrative costs of dealing with that complaint, unless they can show that they first dealt with the complaint through their own procedures, and were, in effect, not guilty of the allegations made.
The OLC will report to the LSB, but is largely independent of it in operational terms. More a creature of the LSB will be the Consumer Panel. Its members are currently being recruited. It will be both a sounding board for the LSB, if the latter wants views on any topic, and a body which can ask the LSB to examine areas which cause it concern.
The SDT is largely untouched by the reforms, save for the increase in its degree of independence. However, it is unlikely that this body alone will escape change, and pressure for reform of its operational methods seems likely to grow.
Also under the microscope at present is the SRA, albeit that in its present guise it is only just over two years old. It is worth noting that the regulator named in LSA 2007 is the Society, not the SRA, and it is up to the Scoiety to ensure that it establishes a regulatory arm or arms, which enjoy a sufficient degree of independence from the representative functions of the Society. That independence is the subject of much tension between the Society and the SRA already, and it is likely to need the LSB's intervention for some aspects of this divide to be determined. Such hints as have been given by the LSB seem to suggest that they favour a high degree of separation.
So, finally, where does this leave the Society which, of course, used to encompass all the functions of all the bodies described in this article. It is having to adjust to its new function as a representative body. It would be educational, for those who used to accuse the profession's leaders of legislating with self-interest in mind, to listen to some of the current council debates, where it is clear that some still find it difficult to come to terms with the new role. The ironic reason for that—which is entirely to the credit of those involved—is that they cannot break the habit of thinking of the public interest first. They take it as axiomatic that a step can only be in the profession's interest if it serves the clients first. It may not be the ideal position for a professional membership organisation, but it isn't a bad starting point.
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