Did Mayson overlook systemic failings?
Paul Bennett argues that Mayson failed to address whether the LSB remains tenable
In mid-June 2020, Stephen Mayson published his independent review of legal services regulation report under the auspices of '¨the Centre for Ethics and Law at the University of College, London.
It is an interesting read but ultimately disappointing and disheartening. The solutions proposed are myopic and one dimensional. They fail to address the systemic issues for consumers and providers of legal services.
The Legal Services Act 2007 (LSA) established 10 frontline regulators and an additional oversight regulator in the Legal Services Board (LSB). It preserved representative bodies such as the Law Society and the Bar Council. Mayson’s criticism of the current framework as having its origins in self-regulation '¨of the legal professions and being cumbersome is a legitimate one.
The LSB is consistently seeking to push the boundaries established under the LSA to justify its own existence. In recent years the LSB has, in the eyes of some – including me – been acting as a market regulator despite having no statutory basis for doing so.
I would respectfully submit that the LSB does not understand the role of the representative bodies or indeed the frontline regulators. It pursues an approach which harms the work of the Solicitors Regulation Authority (SRA) and the Bar Standards Board (BSB) as frontline regulators.
Regrettably, Mayson’s report does not address the LSB’s failings or the challenge for frontline regulators, including the SRA and '¨the BSB. They regulate a market containing providers with huge differences in services and size, from sole practitioners in personal injury to international merger specialists in the City, as well as advocates before courts with distinct rules. The legal market is fragmented.
Mayson also proposes to place non-qualified provider businesses on an equal footing if they provide the same service. Doing so fragments the market by design but the regulators’ task is already difficult enough without adding unqualified providers.
The epic failure within the legal services market is the performance of the Legal Ombudsman, which fails to effectively serve the needs of consumers and lawyers. Mayson’s proposals fail to effectively offer a clear resolution to the challenge of consumer complaints.
Against this backdrop, Mayson’s core proposal that all legal services – not just those of regulated professionals – should be regulated is bizarre. The Legal Ombudsman cannot cope with the workload it has got, so why increase it?
The LSA position on legal regulators is unsustainable. We desperately need a simplified system. The SRA does not carry widespread confidence in the solicitors’ profession, as evidenced by a recent letter from the Law Society’s Junior Lawyers Division to the SRA chief executive stating that its treatment of junior lawyers in disciplinary matters was causing it to lose confidence in the SRA.
If a single regulator, as Mayson argues, is to prevail, that regulator must be able to regulate both in the interests of the service providers to encourage innovation, competition and excellence; and in the interest of the public and consumers through giving effective protection and redress. The independent review of legal services regulation fails on these core obligations.
Mayson’s outcomes lack practical merit. What the sector needs now is an acknowledgement that however well-intentioned, this report has missed the target. Both consumer groups and professional groups should report to a different body to try to undo the failures of the LSA by limited statutory reform, including the abolition of the LSB.
The creation of a single disciplinary tribunal for lawyers from all professions would help. It would also cure the harsher treatment of solicitors as opposed to barristers. A credible consumer complaints service is desperately needed if our world-leading legal services sector is to be preserved and its reputation enhanced in the coming decade, rather than debased by recklessly undermining the professions by placing unqualified personnel on an equal footing.
Paul Bennett is a professional regulation partner with Bennett Briegal LLP and has advised on the implications of the Legal Services Act 2007 since its inception bennettbriegal.co.uk
