Chapter 1

The Regulatory Framework

 

Introduction

1.01
The current regulatory framework is deeply rooted. It has evolved alongside a legal profession in England and Wales which can be traced back to at least the thirteenth century, and statutory restrictions on the performance of certain activities which have been in place since at least the Attorneys and Solicitors Act 1729.

1.02
The need to protect the public arguably justifies the lawyers’ monopoly in respect of certain activities. The public should not be exposed to lawyers who are not appropriately qualified or who are otherwise unsuitable to be entrusted with clients’ affairs. The administration of justice depends upon a body of professionals who are concerned to preserve its integrity.

1.03
Since the 1990s, successive governments have responded to pressure to liberalise the legal services market, and the justification for maintaining restrictions has increasingly been challenged. The Legal Services Act 2007 was seenby some as the catalyst for a revolution which would sweep away restrictive practices and herald a new era of competition and innovation to the benefit of consumers. The junior minister responsible, Bridget Prentice, was widely reported as saying: ‘I don’t see why consumers should not be able to get legal services as easily as they can buy a tin of beans.’ (The Daily Telegraph, 18 October 2005.)

1.04
Nearly a decade on, the reality is rather different. The labyrinthine framework created by the 2007 Act consists of nine ‘frontline’ regulators overseen by the Legal Services Board, the statutory ‘oversight regulator’. The framework is built around a statutory prohibition on the provision of ‘reserved legal activities’ which are relatively narrow in scope.

1.05
Entirely unregulated businesses are increasingly providing non-reserved legal services with no regulatory safeguards in place beyond general consumer protection law. Meanwhile, lawyers and authorised firms are regulated in the provision of all services and regulators are struggling to define their role within the constraints of the various statutes.

1.06
Arguably, the framework is struggling to keep pace with commercial realities, particularly where new commercial models involve lawyers working alongside other regulated professionals.