At our first Board meeting of 2023, we discussed some of our workstreams that will enable us to continue addressing the challenges set out in the Reshaping Legal Services Strategy both this year and beyond.
Annual regulatory performance assessment report
We discussed our annual regulatory performance report for 2022, published earlier this month. As part of the transition from our previous regulatory framework to our new one, our 2022 report assessed regulators’ performance against our previous regulatory framework’s standards but used our new framework’s rating system and narrative approach. This new approach gives a more accurate picture of each regulator’s overall performance.
We noted that several regulators need to be more transparent about how they make both corporate and regulatory decisions. We saw that some were reducing their resources while regulatory issues were either not diminishing or increasing. and discussed each regulator’s performance and where we would look to see improvements ahead of our next assessment.
Ahead of our next assessment, which will be under our new framework, we will engage with regulators about the steps they can take to assure themselves of their performance against our framework.
Applying our regulatory levers to support the sector to reduce unmet legal need
When the Board discussed the LSB’s draft business plan for 2023/24 in November 2022 (currently out for consultation), we noted that it would be useful to discuss further the public positions that we take regarding access to justice issues. This was to ensure we are making the best use of our regulatory levers and convening powers to support sector-wide efforts to lower unmet legal need, which is one of the challenges in the Reshaping Legal Services strategy.
We discussed the importance of regularly considering how we deploy the functions and powers we have available to give effect to change that promotes the regulatory objectives.
The Board discussed the LSB’s statutory remit and our regulatory purview of the approved regulators, OLC and SDT, including the extent to which elements of regulation could be supporting or inhibiting access to justice. We agreed that there should be scoping work undertaken to explore this further and that this would be timely when identifying priorities for future business plans.
The Board also agreed we should continue to use evidence from our research and data shared by stakeholders to support public policy development, including findings from the individual legal needs survey, planned for this year.
Exploring the potential of technologies to achieve greater access to justice for consumers
We saw and discussed highlights from the forthcoming Technology and Innovation Survey report on law firms’ use of technology and innovation. The effect of navigating the impact of COVID-19 is particularly evident in how law firms have engaged with technology to deliver services. We noted with interest, how perceptions of constraints to developing new or improved services or to introducing specific technology have changed and see the potential of ‘technology for access’ to make it easier to use legal services. The survey is due to be published in March 2023.
Pro-innovation guidance for regulators to promote technology for access
The Board discussed a proposal to develop new statutory guidance for regulators, which will set out pro-innovation outcomes that ensure technology and innovation is pursued to increase access to justice and lower unmet legal need.
We agreed that the guidance should focus on three key areas and set expectations that regulators are proactive in promoting innovation and removing barriers to entry and competition; adopt a consumer centric approach; and are responsive to risks in a manner that doesn’t have a dampening effect.
The guidance will be developed for public consultation in mid-2023 and include good practice examples, so that regulators can learn from others, including approaches from other sectors. Our intention is to include it in our regulatory performance framework sourcebook, supporting the characteristic that effective regulators actively encourage innovation in the interests of improving access to services.
Addressing concerns about the misuse of non-disclosure agreements
The Board discussed the scope of a call for evidence to address concerns about the important role that legal professionals can play in ensuring that non-disclosure agreements (“NDAs”) are not misused, for example to conceal wrongdoing including sexual misconduct, harassment, and discrimination. This would assist us to understand the magnitude of the problem and unpack and understand the ethical issues that arise for legal professionals in the context of advising on or constructing NDAs and how these issues have been managed.
The call for evidence planned for this Spring will aim to set out the evidence we have to date of the potential misuse of NDAs and request additional evidence with a focus on the professional ethical conduct of lawyers and potential solutions.
Reshaping Legal Services Conference 2023/24
The Board discussed our ambition to make our Reshaping Legal Services conference an annual fixture in the events calendar. We considered that it was important to build on the momentum of last year’s event, with a particular focus on moving the conversation on professional ethics forwards. We held our first Reshaping Legal Services conference, in partnership with the Legal Services Consumer Panel on 13 October 2022. The theme was ‘a diverse public deserves a strong, ethical and diverse profession.’
We look forward to the frontline regulators being more involved and taking a more active role in our next event so that together, we can deliver the goals as set out in the Reshaping Legal Services strategy, share learnings and promote good leadership and collaboration.
Our next routine Board meeting is on 21 March 2023.