Q:

One ring to rule them all? Should the UK have one legal regulator?

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Rachel Amos
The Senate
12 Jun 2020

A: SenseCheck

  • 3 Yes
  • 0 Unclear
  • 1 No
SenseCheck complexity

Newest Answer Oldest Answer

  • 15 Jun 2020
  • Yes

    Simple

    The Office of Communications, commonly known as Ofcom, is the government-approved regulatory and competition authority for the broadcasting, telecommunications and postal industries of the United Kingdom. Ofcom has wide-ranging powers across the television, radio, telecoms and postal sectors which is hugely complex. No reason why one regulator - "Oflaw" - can't do the same for legal services.

  • Comment

  • 14 Jun 2020
  • No

    Very Complex

    I start by saying I am not expert in this topic but that I have followed the UK legal regulation for 10+ years, from a distance. My answer is based largely on general principle. And, I write this, in part, to spur debate on this question.

    The lesson of the history of governance, at least from the perspective of the developed Western economies, is that multiple power centers yield better outcomes than a single one.

    The founding of American democracy rests on that principle, to wit, the separation of powers among three branches of government. We see that approach at a smaller scale in the regulation of the US financial industry, which has the Fed, SEC, OCC, CTFC, and other agencies that regulate specific financial sectors. And they occasionally butt heads where jurisdiction overlaps. That aspect is a feature, not a bug. It can create confusion and inefficiency but it also leads to creativity and flexibility.

    The American experience with regulation - across both Democratic and Republican administrations - is that regulators are subject to "regulatory capture": regulated entities often end up with undue influence over their regulators. I believe that with multiple, smaller regulators, and competition among them, the risk of capture is lower. (In my opinion, the current US regime of regulating lawyers is a great example of regulatory capture.)

    The fact that the UK even has the discussion prompted by Prof. Mayson's report stems from multiple stakeholders involved in the regulation of lawyers.The Clementi report of 2007, leading to the the 2011 Legal Services Act, has created ongoing and robust dialog about the regulation of legal and related advice. Compare that to the the US where the lawyers remain exclusively in charge.

    I therefore worry that a single regulator would lead to a less favorable outcome. At the end of the day, however, these are empirical questions. The UK has illustrated an ability look at evidence (and not just from those regulated), debate regulatory options and outcomes, and make adjustments. Whatever the future regulatory regime, I hope it keeps those features. And the US should learn from that experience.

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    Ron Friedmann
    Strategic Legal Technology Blog

  • Comment

  • 13 Jun 2020
  • Yes

    Simple

    My answer is "yes," although I'm not sure British solicitors would enjoy the analogy of Sauron's one ring that corrupts and enslaves all the others. :-) I also recommend this excellent summary from Natalie Anne Knowlton of IAALS: https://iaals.du.edu/blog/independent-review….

    The British system is quite different from the American and Canadian systems -- the divide between barristers and solicitors is still very much a reality, and the "reserved/unreserved" distinction in types of legal services is a unique complicating feature. But Mayson's key insight, for me, is that it's past time to move past the regulation of providers of legal services and start regulating the services themselves, regardless of who provides them.

    (This doesn't mean, to be clear, that lawyers should not still be regulated -- that's a professional duty required by the need to serve and protect the public interest. I'm speaking here of the idea that if you simply regulate lawyers, the legal services market will take care of itself. That has been proven to be false in all three jurisdictions, as well as others.)

    It’s important to note that Mayson’s report was not commissioned by the government, but by University College London. The Conservative government in London has stated on more than one occasion that further reform of the legal services regulation framework is not a priority. This is not going to become the law anytime soon.

    But we need to remember this key point from Mayson: “The regulatory framework should better reflect the legitimate needs and expectations of the more than 90% of the population for whom it is not currently designed.” That should be copied and pasted onto the strategic plans of every regulator of legal services in North America. I strongly suspect that if we don't do this ourselves, a government official will come along sooner or later and do it for us, and to us.

    There's a reckoning coming for all of us who've enjoyed the benefits of the incumbent legal system while ignoring or averting our eyes from all the people it doesn't benefit and all the harms it allows to continue. "There's a storm coming, Mr. Wayne. You and your friends better batten down the hatches, because when it hits, you're all gonna wonder how you ever thought you could live so large and leave so little for the rest of us.”

  • Comment

  • 12 Jun 2020
  • Yes

    Complex

    Great summary of the problem "There are some inherent characteristics of legal services that affect consumers’ use and experience. These include: legal issues not always being clearly identifiable or defined; infrequent purchase; needs arising at moments of distress or time pressure; and asymmetry of information, making assessments of providers and quality of service difficult to assess". But the law society thinks the time is not now. If not now, then when? https://www.lawgazette.co.uk/news/not-the-ti…; https://stephenmayson.com/2020/06/11/legal-s…

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    Rachel Amos
    The Senate

  • Comment

  • 12 Jun 2020
  • Comment

  • 12 Jun 2020
  • Yes

    Complex

    Mayson report says yes and I agree having been exposed to some really shocking firms over the past few years. Will collect here a few other views here.

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    Rachel Amos
    The Senate

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