‘Tesco Law’ – a threat to the rule of law?

Recent events have underlined the importance of safeguarding the rule of law. As John Locke stated in 1690 “Where-ever law ends, tyranny begins”.

Lawyer independence protects the rule of law. It is not a lawyer’s right, but the right of every citizen to obtain legal advice from a lawyer who is free from influence (by the State, retailers or otherwise).

Regulation protects members of the public when they rely on any professional. It is designed to ensure quality, punishing unprofessional conduct.

Those outside a profession can only make a professional assessment of outcomes – the service provided – not how a profession can provide a quality service. That is where self-regulation comes in.

We are in the process of losing self-regulation of the legal professions on the other side of the Channel.

The body responsible for overseeing the regulators of legal services (offered by solicitors, barristers, accountants, etc.) in the jurisdiction of England and Wales is the Legal Services Board (LSB). Created under the Legal Services Act 2007, it is meant to be independent. In reality, it does not seem to be very independent:

  1. The LSB is part of the public sector (i.e. part of the economy providing basic government services).
  2. It is currently chaired by senior civil servant Sir Michael Pitt, who is not a lawyer. He has a degree in civil engineering.
  3. The LSB was chaired from 2008 to 2014 by David Edmonds CBE, a businessman. During the same period, he was director of public companies listed on the Stock Exchange:
  • Wincanton PLC from 2005 to 2011 (of which he was President from 2008 to 2011). This company offers a logistics service, in particular to supermarkets like Tesco; and
  • William Hill PLC (Bookmaker) from 2005 to 2014.

Surely there is a conflict of interests here: a risk that retailers’ or the government’s interests will be put before the best interests of the public?

The Legal Service Board’s Business Plan 2009/12, paragraph 13, states:

“We expect to see a shift in the power balance from the professional provider/client relationship to an empowered consumer/commercial provider relationship”.

So, the overarching regulator of lawyers in England and Wales thinks that lawyers (barristers and solicitors) are not professionals providing a service, but sellers of goods to consumers. How can the Legal Services Board regulate lawyers effectively when it so fundamentally misunderstands their role?

A lawyer has a duty to advise a client not to take legal action if that is in the client’s best interests. On the contrary, sellers of goods have no such – they encourage consumers to buy as much as possible. Even if that is not in their customer’s best interests!

This ‘consumer’ approach of the Legal Services presents a danger to the rule of law–and therefore to society. In England and Wales, retailers are now offering legal services relating to Wills, the purchase and sale of houses, divorces etc. This phenomenon has been encouraged by the Legal Services Act 2007, nicknamed ‘Tesco Law’.

The public could fear that the LSB was more interested in business folk and companies than those of lawyers and the public. What happened? Reduced regulation of legal services, known as ‘light-touch’. That helps non-lawyers to provide legal services.

The Legal Services Board was the result of a governmental report by Sir David Clement, following alleged public discontent with self-regulation by British lawyers. The reform of the regulation of legal services sought by the government, following this report, has led to problems in addition to the LSB itself.

The national Law Society of England and Wales represents 170,000 solicitors. Officially, the Law Society remains the regulator of solicitors approved by the LSB. However, the Law Society’s attempt to preserve self-regulation is nothing but a compromise reached with the LSB: the creation of an ‘independent arm’ to regulate solicitors.

Have you ever seen an independent arm?!

This ‘independent arm’ is called The Solicitors Regulation Authority (SRA), to which the Law Society has delegated regulation.

The majority of the SRA’s Board are non-lawyers (8/15) and its Chairman is a non-lawyer. And that is why the SRA has imposed on solicitors the unpopular ‘outcomes-focused’ regulation. In other words, ‘light-touch’ regulation.

I say ‘imposed’ because, for fear of offending the LSB and losing its approved regulator status, the Law Society did not dare to stop the SRA. The Law Society merely complains from time to time about things that the SRA has decided to do!

The result is that the SRA, governed in the majority by non-lawyers is in reality independent, and not an ‘arm’. And the Law society has lost self-regulation.

This solution is complex, and even solicitors have not fully understood… the intentional smoke is working!!

It is no surprise that the Solicitors Regulation Authority and the Legal Services Board are both enthusiastic about light-touch regulation – neither are governed by lawyers. They are therefore not capable of doing otherwise. But does such light-touch regulation sufficiently guarantee the quality of lawyers and other providers of legal services as regards the public? That was the aim of all this reform.

I urge that solutions be found to improve self-regulation to the public’s satisfaction. If not, there will be be an increase in the number of ‘independent arms’ run by non-lawyers!

Send a comment:

Your email address will not be published. Required fields are marked *