Colin Scott Regulatory Reform for a 21 st Century Legal Profession Department of Justice & Equality 6 th July 2012

Regulation ‘regulation is the sustained and focused attempt to alter the behaviour of others according to defined standards or purposes with the intention of producing a broadly identified outcome or outcomes which may involve mechanisms of standard-setting, information-gathering and behaviour-modification.’ (Julia Black, 2002) Feedback (information gathering) Correction (behaviour modification) Norms (standard- setting)

Self-Regulatory Body Regulated Organisations/ Activities Protected Class Pure Self Regulation Version A: Reactive Adjudicates complaints Version B: Proactive Monitors Enforces Sets Norms Examples: complains Analysis Low Cost, Expert BUT, risk that industry interests placed above public interest

Minister Self-Regulatory Body Regulated Organisations/ Activities Protected Class Mandated Self Regulation Sets Norms Legislature Version A:‘Supplies LegislativeFramework’ Version B: ‘Shadow of Hierarchy’ Buy- In complains Version A: Reactive Adjudicates complaints Version B: Proactive Monitors Enforces Examples: Analysis Low cost, expert Modest political investment May be challenging to align industry and public interest

State Regulatory Agency/ies Minister Self-Regulatory Body Regulated Organisations/ Activities Protected Class Meta-Regulation Reactive Adjudicates complaints Proactive Monitors Enforces Sets Norms Legislature Examples: ‘Supplies Legislative Framework’ Monitors Approves/Recalls Rules Recalls Decisions Learns Adjudicates Monitors complains Analysis Low cost, expert Provides Reassurance Requires learning by regulatees May require separation of representative and regulatory functions Risk of industry domination

State Regulatory Agency/ies Minister Regulated Organisations/ Activities Protected Class Mega-Regulation Reactive Adjudicates complaints Proactive Monitors Enforces Legislature Examples: ‘Supplies Legislative Framework’ Buy- In? Sets Norms Monitors complains Analysis Provides public assurance Costs Requires agency to to learn quickly Risks ‘agency drift’ low industry support excessive expectations

Meta- Regulation Mandated Self- Regulation Self-Regulation Mega-Regulation Managing Regulation: A Pyramid of Technique

Legal Services Regulation Bill, October 2011 Meta-Regulation Legal Services Regulatory Authority Law Society Law Society Bar Council Bar Council Solicitors Barristers 1. Approve codes 2. Review: a. admissions standards, b. professional education & training Self- Regulation (statutory for solicitors) King’s Inns King’s Inns

Legal Services Regulation Bill, October 2011 Regulated Meta-Regulation Legal Services Regulatory Authority Minister/ Government Law Society Law Society Bar Council Bar Council Solicitors Barristers 1. Appoint/remove members, chief executive, 2. Direct issue of codes 3. Consent to issue of Codes 4. Provide funds 5. Request reports 6. Consent to Regulations 7. Approve membership of Complaints Committee 1. Approve codes 2. Review: a. admissions standards, b. professional education & training University Law Schools Review education & training 1.Inform 2.Submit strategic plans & annual reports 3.Reports on: a. Education and training b. Unification Self- Regulation (statutory for solicitors) King’s Inns King’s Inns

Legal Services Regulation Bill, October 2011 Mega- Regulation Legal Services Regulatory Authority Minister/ Government Law Society Law Society Bar Council Bar Council Solicitors Barristers 1. Appoint/remove members, chief executive, 2. Direct issue of codes 3. Consent to issue of Codes 4. Provide funds 5. Request reports 6. Consent to Regulations 7. Approve membership of Complaints Committee 1. Approve codes 2. Review: a. admissions standards, b. professional education & training University Law Schools Review education & training 1.Inform 2.Submit strategic plans & annual reports 3.Reports on: a. Education and training b. Unification 1.Issue codes, 2.Make regulations (accounts, complaints, advertising, etc) 3.Supervision of accounts, 4.Inspection, 5.Charge Fees, 6.Investigate complaints, 7.Initiate investigations, 8.Apply to Disciplinary Tribunal, 9.Apply for court orders, 10.Prosecute Self- Regulation (statutory for solicitors) King’s Inns King’s Inns

Conclusion Not a matter of identifying ‘best model’ Space for experimentation and learning –Revisable Regulatory model adopted will depend on view of activities/organisations to be targeted Opportunity to orient professional oversight around regulatory objectives Audience is not just national – perceptions of regulation affect international trade in services