Independent thinking – reflections on submissions to the Simplification Review

Elisabeth DaviesHaving put the finishing touches to the Panel’s submission to the Ministry of Justice Simplification Review at the start of the week, I’ve been eager to read what others have put in.

First to emerge was the Solicitors Regulation Authority’s and I was struck by the close similarity between their response and ours. It makes a compelling public interest case for the regulation of legal services and highlights the flaws of multiple entity regulators. Above all, its call for fully independent regulation – from both government and the profession – is powerfully made.

As Neil Rose picked up in his blog, one passage from the SRA’s paper jumps out and I can’t help but wonder if the regulator had an inkling of what would shortly emerge from Chancery Lane: “We take it as a given that the need for independent regulation is accepted… We consider it unlikely that the government would seriously countenance a return to the pre-LSA position or that any serious commentator or professional body would advance such an argument“.

Sure enough, some hours later the Law Society essentially argued for a return to self-regulation, albeit supervised by a denuded LSB. The Consumer Panel would be abolished, to be replaced by a duty on the professional bodies to listen to consumer views. Everything would be okay, because “there is no evidence to suggest that the professional bodies cannot take decisions in the public interest“.

Where should I begin? The position taken by the Law Society is quite staggering, as is the lack of argument or evidence in the paper to support its blueprint for change, as is its claim that this would represent “relatively minor changes to the system“. Without any apparent sense of irony, it asks to be trusted to regulate in the public interest yet proposes the very solution that would most advance its own self-interest.

The Decker and Yarrow paper commissioned by the LSB on the economic rationale for regulation reminds us that even policies modestly weighted towards professional self-interest can cause major harm for consumers. The Panel’s fight, to date unsuccessful, to open up the professional registers to enable the growth of comparison websites, reinforces this. The refusal to release these datasets goes against a direct recommendation by the LSB and the Government’s Open Data Strategy. It’s worthwhile exploring this in a little detail, as it exposes the protectionism that persists in the sector.

The Law Society holds basic official information about solicitors on the roll – their contact details, membership of accreditation schemes etc  – to which comparison websites need easy access in order to present consumers with a wide selection of solicitors to choose between. While anyone can search its Find A Solicitor website for this information, comparison websites need access to this data in raw and usable form. Various entrepreneurs who have requested access to the data have been met with a refusal. Applications made under the Society’s freedom of information code have also been unsuccessful. The most recent adjudication, which is publically available, shows the true reason. After initial objections about the data already being available and the expense of providing the dataset were ruled unfounded, the Society was left to rely on the section of the code which allows it to withhold information where disclosure could harm its commercial interests. Since, it argued, the data requested was clearly commercially exploitable, it was within the Society’s rights to withhold it. Although on this occasion the Law Society eventually released the limited ‘count data’ the applicant had sought, in laying down a marker for future cases, the Adjudicator concluded that “The Society is entitled jealously to protect its right to withhold information which could reasonably be argued to damage its commercial interests…“.

This episode – and there have been others – makes clear why we cannot return to self-regulation. Reading the Law Society’s submission has only stiffened my resolve on this point. Sir David Clementi concluded that self-regulation would no longer command public confidence. Indeed, time has shown that his halfway house model did not go far enough to deliver regulation which is truly independent of the profession. A duty on professional bodies to listen to consumer views offers scant assurance, as experience suggests these will be ignored should they conflict with lawyers’ interests.

If consumers are truly to be put at the heart of legal services regulation, regulatory decisions need to be made by organisations that truly have consumers at their heart.