BRITISH PROFESSIONS TODAY: THE STATE OF ... - Property Week

Changing regulatory structures continued >>
Complaints about solicitors are handled by the independent Legal
Complaints Service (LCS), previously known as the Consumer
Complaints Service (CCS) and before that, the Office for
Supervision of Solicitors (OSS). The LCS Board consists of seven
lay and six solicitor members, with a lay Chair. Whilst the Bar
Standards Board hopes to retain its complaints handling function,
the Law Society recognises that the LCS is transitory and
handling of consumer complaints will pass to the Office of
Legal Complaints in a few years’ time (Chapman 2007).
The nature of the legal services professions’ regulatory structures
may be different from the other professions due to the relationship
between law and regulation. Law is written (by legal professionals)
and enforced by agencies and others on the ground. The question
of how law itself is regulated is necessarily complex. To what
extent is modern law autonomous, and what is the role of wider
social and economic activities in steering law? Much regulation is
oriented towards law (eg ‘command and control’), but regulation
can be achieved through other mechanisms. A delicate balance is
needed to ensure that law is neither dominant nor unimportant in
regulation (Scott 2004). Some contemporary scholars have
suggested that “regulated self-regulation” like the new structures
proposed by the LSA may provide a middle path which is also
able to accommodate the pluralism of many regulatory systems
(Parker et al. 2004).
Although many have faith in the proposed structures, criticisms
have already been raised about the Legal Services Board’s
potential regulatory power. One can only speculate about how well
the new system will function when the Act takes full effect in 2-3
years. The LSB is not intended to be a mega-regulator along the
lines of the Financial Services Authority (FSA). While the FSA
spends roughly £200 million per annum on regulatory activities,
the budget of the LSB is estimated at £4.5 million annually.
However, the events of 2008 suggest that the FSA’s big budget
has been no guarantee of its effectiveness as a regulator.
The LSB’s power lies in its leverage over the regulatory activities
of the professional bodies; yet, these will reduce their selfregulatory
activities once the legislation is passed. The LSB will
be expected to develop its own regulatory expertise and offer the
“sustained and focused control” that central government cannot,
eg acting as an appellate mechanism for the fitness of practice
decisions of front-line regulators, or ordering a front-line regulator
to change its rules. The possibility of LSB intervention to change
a front-line regulator’s rules has been criticised with speculation
that it may encourage such regulators to leave tough decisions to
the LSB. A new tier of regulation may shift power, and regulatory
expectations, upward, without appropriate resources allocated to
make effective decisions (Kaye 2005).
The questions raised in the legal professions’ regulatory
development are applicable to any of the professional bodies
faced with expanding, decentred regulation. Professional bodies
face a trade-off: is alleviating the risk of market failures which
are inherent in the principles of self-regulation worth risking new
dangers of ineffective regulation due to blurred remits of
multiple oversight bodies and scattered resources? How far are
professional bodies content to rely upon the market to protect
consumer interests?
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