We had three big ticket items on the agenda this month. We agreed the Board’s emerging response to the Covid-19 pandemic. We agreed the operational approach to our policy objective on public legal education (PLE). And we discussed the letter we received from the SRA asking us to take over Legal Choices, the cross-sector consumer-facing website designed to help people engage with legal services better.
On Covid-19 we discussed how the situation is affecting various parts of the legal system differently. For example, there has been an immediate dip in transactional legal work such as residential conveyancing, and new claims issued in English courts dropped by 65% in the first 4 weeks of lockdown. And many readers will have seen the catastrophic predictions published by the Bar Council, in particular.
However, there has been a spike in enquiries about wills and benefits advice, and we know from discussions with partners that trademark work is relatively unaffected at this stage and the impacts might come later. This, in fact, points to the importance of understanding that there is a time dimension to Covid-19 that extends well beyond the acute crisis period we are currently in.
In the last month, I have written to and spoken with Chairs and CEOs of the approved regulators and regulatory bodies to enable the LSB to tailor the support we give to the sector through this crisis.
We will be pursuing our role in recovery from the point of view of the sector’s ability to meet consumer demand and to fulfil its fundamental role in society. We are committed to protecting vulnerable consumers and reshaping legal services to meet the needs of society, now more than ever.
In that respect, the Board agreed that that as well as challenges, there may also be opportunities for positive change. Technology is an obvious area where the sector might capitalise in the longer term on changes to working practices that have been forced upon it (recognising the need to ensure that those less able to engage with technology are not left behind).
In terms of specific actions, in the medium term we will continue to work with regulators and others to identify and remove regulatory barriers to new ways of working and monitor trends.
We also noted that hard data in terms of impact on consumers and providers is currently in relatively short supply, although much is planned or in train. We will expand our existing research dashboard to provide insights into the impact of Covid-19 on consumers and providers.
While not a short term intervention (largely due to the lengthy statutory processes required), we noted that in a post-crisis world, there may well be a pressing case to make changes to the “reserved activities” described in the Act to better meet public need. In fact, in June we have a long-planned discussion on precisely this topic, and we will be connecting it to the longer-term Covid-19 response.
Public legal education (PLE) – use of regulatory levers
We discussed plans to use our regulatory levers to make the market work better for consumers. This work will be aligned to the Competition and Markets Authority’s (CMA) progress review on its 2016 market study, which is due to begin in the autumn.
The Board agreed that the time was right to pursue a statutory policy statement and guidance made under the Act, to clearly set out our expectations of regulators in this area and to drive change and improvement accordingly. Using statutory tools will reinforce existing oversight mechanisms including the regulatory performance framework and rule change applications.
We have come to see PLE as being one among a range of interventions designed to reshape legal services to better meet society’s needs. The policy statement will bring together various threads of work we will be progressing in key areas related to consumer engagement in markets such as the prices research, quality indicators and resolving the future of the Legal Choices digital platform.
Against the backdrop of protecting consumers during the Covid-19 crisis and our commitment to PLE, the Board also discussed the future of the Legal Choices digital platform.
The development of Legal Choices as the flagship cross-sector regulator response to the 2016 CMA market study was a challenge that was accepted by all the legal services regulators.
However, the SRA described in its recent letter to us a range of problems relating largely to governance that have prevented the regulators from, so far at least, fully realising the ambition. And it is of course a matter of public record that the Bar Standards Board (BSB) has withdrawn its funding from the venture, citing cost effectiveness and relevance, although we do not consider that its individual decision not to seek to deliver against this important commitment to consumers should count against the regulators that remain at the table.
The SRA’s letter concluded by requesting that the LSB take on responsibility for developing Legal Choices and that was the matter before the Board this month.
The Board agreed that Legal Choices had the potential to become a really powerful resource for consumers and that it was extremely important to continue to develop it, and to keep developing it, as one part of a strategy for connecting legal services to the people who need them.
However, we considered it hugely important for the reputation of the regulators, individually and collectively, that they continued to take responsibility for delivering against the challenge that they had accepted. While we could see some of the rationale for the LSB assuming control, and indeed could see some benefits for the public in doing so, they were outweighed significantly by the consequences of the regulators failing to deliver.
Nevertheless, we had a great deal of sympathy for the arguments put to us in terms of the governance difficulties described in the SRA’s letter. So, we agreed as a Board that we would offer additional advice and assistance to help the regulators reach agreement on a revised development plan and budget pitched at the right level of ambition and underpinned by a new and more effective governance model. For example, we discussed the possibility of the regulators seeking an independent Chair, and broadening the ownership to include expertise in fields like consumer engagement and technology.
We will also continue to encourage individual regulators to see Legal Choices as an opportunity for them to demonstrate leadership in the interests of consumers.
Finally, because of the huge potential for Legal Choices to provide real benefits for consumers, we were clear that the deadline for success was not unlimited (and indeed we noted the CMA’s intention to carry out a market review this year). As a Board we wanted to be able to say – sooner rather than later – that the legal services regulators had really delivered for consumers on Legal Choices.
Our next Board Meeting is 4 June 2020.