Public bodies such as the
Legal Services Board have to undergo triennial reviews to see if they should continue and if so in what form. 2012 is the LSB's turn.
The
Ministry of Justice is the reviewer and has held some seminars to canvass views among those interested. I am interested so I have just submitted my views on the future role of the LSB. They focus on research and coordination. This latter point will appeal to those who have read Steven Lukes' little but invaluable book,
Power: A Radical View. I consider the LSB to embody the ideas of the second and third dimensions of power as Lukes represents them. It is not domination as such but the ability to create environments where the participants want to engage in collective action. If one can set the agenda, that's far more powerful than merely telling someone to do something.
Here are my views. My statement is short and relates to the role of the LSB in coordination and research.
Let
me take coordination first. Contrary to the way we speak there is no
single legal profession but a set of professions that have varied in
type and number over the centuries. For example, there were
approximately 12 legal professions in the 15th century. Apart from the
judiciary and some parts of government, there has not been any
significant coherent regulation of the legal professions until recent
times. One result is that different professions saw themselves as
competing fiefdoms fighting over turf, eg, rights of audience in the
courts, control of judicial appointments and control of conveyancing.
These turf battles have generally favoured the professions'
self-interest at the expense of the client's interests. This is not to
say that legal professions have not done magnificent work in areas like
pro bono and legal aid.
Although there have been reviews of the legal services market and
professions before, any attempts at reform have been piecemeal and
resisted strenuously by the professions. Indeed the OFT reports on
professions through the Clementi Review to the Legal Services Act 2007
represent the first major wholesale analysis and reform of the
professions and their regulation. The Legal Services Act has introduced a
systematic process of regulation that allows for degrees of
self-regulation to command and control where necessary. At the same time
it has opened up the framework of the legal services market and
introduced, in a formal way, the greater participation of "non-lawyers"
as active producers in this market.
These are tremendous changes running counter to centuries of
tradition. It takes time for such change to bed down and be accepted.
For lawyers to realize they are one of several "producers" in the legal
services market as opposed to the only participants is shocking. The
results of these changes and shocks to the system are profound and as
such require managing. They cannot be left to chance alone. The problem
of management is a subtle and delicate one that must manage expectations
and potentialities.
The present setup is fragmented and based on traditional divisions
between different professions. There is nothing wrong in this as it
reflects the situation we are faced with. It does, however, mean that
the differences and distinctions between the professions continue to
resonate in the market. Turf battles have not disappeared; they have
been reconstructed. Not only are the Approved Regulators asked to
regulate their own professions and activities but in some cases--where
ABS are concerned--other professionals. One of the risks inherent in
this situation is that of regulatory arbitrage, which should be best
avoided.
To achieve a coherent regulatory process takes time and continuing
communication among the different parts. Experience shows us that
without the intermediation of a knowledgeable body this communication
may only be partial at best. In part the role of the LSB is to act as an
intermediary to ensure the Approved Regulators adhere to the letter and
spirit of the Regulatory Objectives laid out in the Legal Services Act.
The role then of the Legal Services Board is to facilitate
communication, consistency and coherence between the Approved
Regulators, and to ensure the legal services market serves the needs of
consumers and the public interest. The changes being wrought in the
legal services market are creating challenges never hitherto faced by
the professions. New providers, new organizational structures, and new
modes of delivery need proper coordination across the differing
regulatory structures which the intercession of the LSB can help
deliver.
The introduction of Alternative Business Structures is a case in
point. There was much speculation about whether the introduction of ABS
would imitate the "Big Bang" in financial services. Clearly this has not
occurred but the drive towards ABS is gathering speed. These are
unknown quantities which lawyers have not traditionally had to contend
with. Without the facilitation of the LSB the ABS process would have
been strewn with obstacles. Besides encouragement the LSB possesses
powers to compel where obstacles resist removal. The possession of such
power is often sufficient in itself to smooth out implementation.
From this perspective the role of the LSB is to exercise power in a
way that does not coerce or cajole but rather sets the agenda and
determines the environment of the debates needed. This is not brute
force; it is engagement and it is what makes the LSB so valuable. It is
also what makes the LSB necessary. The constitution of the Approved
Regulators will not support these processes. Until they have matured
(and the legal services market) and fully adapted to their roles, they
require the presence of the LSB, however welcome they consider it.
I now turn to research. Previous incarnations of the Approved
Regulators, eg, the Law Society and Bar Council, have from time to time
undertaken research on the professions and legal markets. It has not
been a sustained process. We need more research on the legal services
market to understand how it works, what it does, who its occupants are
and so on. I have been engaged in research in this area for some years,
but I realize we need more. One of the key services of the Legal
Services Board has been to engage in research, both as research funder
and as facilitator. This is invaluable. In the few years of the LSB's
existence research on the professions and the legal services market has
increased dramatically. Moreover, the LSB has taken on the role of
analysing the research done and attempted to systematize it so we can
see the gaps. Legal services are no different from medical services in
that decisions about the allocation of resources, what constitutes the
proper operation of the market and its providers are best taken on the
basis of evidence rather than conjecture or anecdote. We know from
earlier reviews and reports little sustained research was done which
created doubts about the quality of decisionmaking.
The Legal Services Board's explicit aim to make all research
available is to be applauded and will help to dispel many of the mists
that enwrap the provision of legal services. The Approved Regulators
have not yet sought to take on this role and therefore the LSB is
necessary and will continue to be so for some time yet.
I am therefore convinced the Legal Services Board should continue in
its present incarnation. Without it the legal services market would be
diminished.
Why Do We Need the Legal Services Board?
