Chair’s blog – July 2021

Dr Helen Phillips, Chair of the Legal Services BoardOur Chair, Dr Helen Phillips, writes a blog following each Board meeting. Here she reflects on the discussion that took place at the meeting on 20 July 2021.

This was the Board’s final meeting before the summer break, and the agenda contained several substantial items focused on delivering our ambition to reshape legal services to better meet society’s needs.

Maintaining momentum on “Reshaping Legal Services”, the consumer-focused strategy for the sector

Following the launch of Reshaping Legal Services, the sector-wide strategy, in April, we discussed our plans to ‘curate the strategy’ – to maintain momentum and track progress against the nine challenges facing the sector that we outlined. The Board was enthused by the proposed programme of activities and the opportunities to collaborate with others to drive meaningful change for consumers. As the strategy makes clear, while there are areas where the LSB and regulation will have an impact, achieving the vision will rely on everyone with an interest playing their part to the full.

In an example of the kinds of collaboration that we would like to see, last week, the LSB met with stakeholders involved in legal expenses insurance to discuss how they might be able to work together to raise awareness and improve the quality of these products as part of a programme of work to widen access to legal advice in England and Wales. We plan to facilitate and encourage more discussions like these. We are particularly excited by the idea of an annual summit to bring people together to focus on tackling the nine challenges.

The Board agreed that it was important for robust evaluation to be built into our plans. To track activities being undertaken by the LSB and others, we will produce an annual publication on progress and outputs. We have previously committed to publishing an updated State of Legal Services report every five years using various indicators – the next being in 2025. This reflects the typical time it takes for policy change to become evident in the market and reflects the frequency of the range of research that would inform the report.

Ongoing competence – protecting consumers and building trust

Over the last 18 months, a key focus for the LSB has been exploring whether regulators have appropriate frameworks to ensure lawyers remain competent throughout their careers. This work goes to the heart of our ambition to provide consumers with fairer outcomes, stronger confidence and better services. Consumers should be able to trust that legal professionals have the necessary and up to date skills, knowledge and attributes to provide good quality legal services.

Currently, regulators have in place rigorous checks on entry to the profession, but after that, there are few checks on an individual’s competence throughout their careers. Regulators are not well equipped to address competence issues if they are identified and instead, cases are generally treated as conduct issues, or nothing is done to provide remedial support to that individual to improve their competence.

Our recently published research shows a gap between public expectations and regulators’ requirements to ensure lawyers’ competence. The Board discussed these findings, which followed research on what we can learn in England and Wales from approaches to ongoing competence in overseas jurisdictions.

The Board agreed that our research and evidence supports the regulatory principle that providing a proportionate level of oversight and assurance of ongoing competence is within the remit of the regulators. The current approach is also out of step with consumers’ expectations, other professional sectors, and some other jurisdictions. The status quo is not the best way to protect and promote the regulatory objectives, and change is required.

We agreed to proceed with plans to set out our expectations of all regulators and establish some high-level principles that their regulatory approach should capture.

We noted that the legal services market is diverse, and consumers faced different levels of risk in different areas. This is why a principles-based approach that focuses on consumer protection and the public interest is required. We want to ensure regulators’ approach is proportionate to the risk of harm facing consumers, which is why evidence will be so important. We also see this work as an opportunity to reinforce the importance and value of client feedback and ongoing reflection in taking responsibility for developing and ensuring competence.

We agreed that the high-level principles should include expecting legal regulators to set out the standards of competence that legal professionals should meet at the point of entry and throughout their careers. Regulators should also assess profession-wide levels of competence and use that information to design proportionate upstream interventions. Finally, where individual legal professionals who fail to meet the standards of competence are identified, regulators should be able to take suitable remedial action.

We will discuss these policy proposals with stakeholders ahead of a formal consultation later in 2021.

Supporting consumers with better information about the quality of legal services

People and small businesses who need legal advice must have access to information on quality and price so they can shop around and exercise choice. However, despite some progress, too many consumers are still unable to get good information about legal services providers or make effective comparisons between them.

At our Board meeting in June, we agreed to an overall approach to quality indicators following an analysis of responses to the discussion paper we published in February 2021. We will publish our response to the submissions we received shortly. It confirms our determination to see improved information about the quality of legal serves made available to consumers. This has led to developing a draft statement of policy on improving information for consumers, which the Board considered ahead of a public consultation later in the year.

The statement will provide an effective, proportionate, and targeted regulatory tool to drive progress by the regulators on these issues and set a general principle that regulators should work collaboratively in this area.

As well as drafting a statement of policy, we have committed to developing other workstreams in this area, such as scoping out a single digital register of regulated providers and potentially developing a voluntary accreditation scheme for digital comparison tools. Next, we will discuss these various measures with the regulators through the new market transparency oversight group that we have established.

We want to transform transparency, accountability, and culture in the relationship between legal services providers and consumers through our work on quality indicators and ongoing competence.

Pushing for progress and diversity and inclusion

Improving the diversity of the profession to ensure it looks more like the society it serves continues to be an urgent priority of the Board. We discussed the work we are doing to make progress in this area and our collaboration with others.

As we made clear in May 2021, following the publication of the report we commissioned on regulatory interventions and evaluation, regulators must do more to understand what is and is not working to improve the diversity and inclusion in the sector and focus on what will make a meaningful difference for professionals and consumers. Alongside this, we launched a diversity dashboard that collates the latest diversity and inclusion information collected by the regulators. This presents a sector-wide view and will allow us to monitor progress over time.

In July 2021, the LSB held a roundtable with the Solicitors Regulation Authority, the Solicitors Disciplinary Tribunal, the Bar Standards Board, and the Bar Tribunal and Adjudication Service to discuss a sector-wide statement on the use of disciplinary sanctions. The aim of the statement will be to minimise, as far as possible within the current schemes, enforcement variability and deter counter-inclusive conduct, such as sexual misconduct, abuse of trust, and racial harassment. Following this meeting, all other regulators have agreed to be a part of this work on developing shared principles across the sector.

The next phase of our diversity and inclusion work will focus on developing effective means of evaluation of regulatory interventions continuing to improve data collection by regulators. We will also look at the effectiveness of regulatory levers in use and through our planned review of the policy guidance and performance assessment framework we will ensure that we have a transparent and predictable means of holding regulators to account.

Our next Board meeting is on 21 September 2021.