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Statutory "Underpinning" of Professional Conduct

View profile for Stephen Hornsby
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The first act of a dictator seeking to crush dissent, perhaps before even abolishing the free press and blocking the internet, would be to control lawyers (“The first thing we do, lets kill all the lawyers”:  Henry VI Part 2).  However, does the need to safeguard legal independence mean that lawyers should be entirely free to regulate themselves?  The answer to this question is plainly “No”.

The public rightly demands and expects protection from dishonesty and exploitative practices and in a series of ever intrusive statutes culminating in the Legal Services Act 2007, this is precisely what the public has obtained.  Both solicitors and the Bar have had their regulatory and representative functions split, as have the GMC, the BMA, the Council of Licensed Conveyancers, the Chartered Institute of Legal Executives, the ILEX Professional Standards Ltd, Chartered Institute of Patent Attorneys, the Institute of Trademark Attorneys, the Intellectual Property Regulation Board etc etc.

The Legal Services Act of 2007 which is the original of the current regulatory regime set up the Legal Services Board (LSB) which is non-lawyer dominated and which provides a broad framework of public accountability as distinct from classic statutory regulation.  The LSB and its Consumer Panel are appointed with the approval of the Lord Chancellor who is now clearly a politician.  The Consumer Panel and the OFT are to advise the LSB on the appointment of approved regulators of the new legal entities.

The LSB can recommend cancellation of designation of an approved regulator if the regulator has not observed the regulatory objectives listed in the Act or gone native.  Statutory objectives include taking into account the interest of the consumers.  The LSB can also annul the designation of an approved regulator such as the Bar Council and the Lord Chancellor could even appoint the LSB as an approved regulator so the LSB could actually gain control of parts of the profession.

The mechanisms for government control of the legal profession are potentially in place and yet it is well accepted that the independence of the legal profession is a value which society must strive to uphold.  Clearly a balance has to be achieved between competing interests and this is achieved by a system of statutory underpinning of the sort that Leveson has recommended for the Press but which the Press continues to reject.

Attacks on this key recommendation from the Press have taken two forms: the first is to conflate statutory underpinning with a statutory regulation when the two are clearly distinct.  The second is to point out that the mere existence of a statute would enable rules to be passed by a future Parliament circumscribing Press freedom.  This argument faces the difficulties that Parliament of late has managed to pass a number of laws that infringed civil liberties through primary legislation without there being a pre-existing specific statutory scheme of which it could take advantage.  The third argument – that the internet is not regulated – is an argument against any regulation at all rather than statutory underpinning.

The most potent argument against Leveson is that Ofcom is not best placed to be the body that performs the recognition function which is designed to stop “regulatory capture” or going native.  This is because part of the function of the Press is to hold Ofcom to account over the wide range of other functions it performs. ip address. However Lord Leveson did not insist that Ofcom was the only proper body for the task.  This objection can therefore be bypassed if another body is put forward.

It cannot be suggested that statutory regulation of the legal profession is ideal but whilst there is no doubt at all that there are some risks on the independence of the legal profession inherent in the current system, the Press needs to come up with a convincing reason why it cannot be subject to any form of statutory underpinning of the sort that is quite common in other walks of life.  To date it has assumed that “Press exceptionalism” does not need any justification without suggesting how the broad framework of public accountability can otherwise be achieved.