At the core of the debate is the concept of “reserved activities”, or activities which only a properly trained, qualified, and regulated person can be permitted to do. Only lawyers can be trusted to “do” certain things. In any other industry or process this would be seen quite simply as a restrictive trade practice, but where it is essential to the administration of justice, it is seen as a tolerable lesser of two evils.
Few would contest that a judicial system needs a process whereby the quality of advocates, the process of case management and the veracity of the testimony and documentation is kept as high as possible. The concept of being an “officer of the court” in the UK is an important one in terms of the independence of the legal system. Historically barristers were the advocate specialists and solicitors the conduct of litigation specialists, regulated by the Bar Council and Law Society respectively.
Reserved activities were extended, however, to include the conveyancing of property and the administration of probate, and on these two pillars rest much of the history and growth of the legal professions.
Conveyancing and Probate are two areas where individuals are most likely to face contentious disputes. There is, however, no commensurate need for a regulated person to be involved in buying a billion dollar warplane or buying a multi-billion pound company. Section 14 of the Stamp Act 1804 was a rather ungentlemanly compromise giving solicitors a conveyancing monopoly which is now routinely conflated with attacks on access to justice.
While defending the maintenance of historically anachronistic anomalies, the legal profession is currently uniquely slow to consider even modest extensions of legal professional privilege. The Prudential case in the Court of Appeal was an opportunity to extend officer of the court status to some types of accountant in some circumstances, but no, parliament must decide. The elision of “justice” with protectionist measures is mendacious and all too common and frankly unhelpful.
Clementi did not propose a change to the reserved activities. He could have extended them or curtailed them – he did neither. Arguably the Clementi terms of reference put the burden of proof firmly on the restrictive provision to prove its value. By the time the Legal Services Act arrived, however, it included provisions which enabled the industry regulator (LSC) to oversee insurance claims management and immigration.
The core issue is clearly closer to the one that drove Pitt in Napoleonic times – trade and taxes. Immigration is currently (erroneously) seen as one of the most volatile claims on the Legal Aid budget, and claims management is a pivotal process whereby vast calls on the public purse are in effect outsourced to the insurance industry.
The legal regulators may well see the maintenance of some reservations as an essential platform from which to ensure a viable profession. That, frankly is not their call. Any issues necessary to ensure the proper conduct of litigation - are, but they are currently insisting that only parliament can deal with these. By this logic, any extensions of protectionist reservations would require the same rigor. It is hard, however, to see how and why a £25bn industry needs protection. Perhaps it is time to remember that it was the OFT reviews in 2001 that started the whole ball rolling.
If the new regulatory regime empowers law firms to compete head to head with legal services firms from other regulatory regimes - all well and good. If they simply ramp up protectionist measures - this is predictable, but it is also highly likely to be self delusional and self defeating in the medium and long term.
(See RBP's White Paper for a fuller exploration of these issues with references at www.rbponline.co.uk)
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