Memorandum by the General Council of the
Bar (Ev 01)
1. The Bar Council welcomes this opportunity
to comment on the draft Legal Services Bill.
2. The Bar Council established the Bar Standards
Board (BSB), chaired by Ruth Evans, in January 2006 to undertake
its regulatory work. The BSB will be providing its own submissions
to the Committee.
3. The establishment of the BSB, with its
strong lay element, goes a considerable way towards meeting the
objectives set out in the report of Sir David Clementi, on which
the Bill is based. The Committee should be aware of the strengths
of the Bar's existing system of regulation and of the way in which
the Bill could adversely affect these.
4. The Bar Council welcomes the Bill and
supports the regulatory objectives in Clause 1.
5. The Bar Council's principal concerns
are in the following three areas:
(a) the powers of the Legal Services Board
(b) the arrangements for complaints handling;
(c) the cost of the new system.
The powers of the LSB
6. The Bar Council believes that the main
danger is that the LSB will become a heavy-handed regulator micro-managing
the "front line regulators" (FLRs) (referred to in the
Bill as "approved regulators"). The focus should be
on allowing the FLRs to do their work without inappropriate intervention.
7. The Bill sets the bar for intervention
by the LSB too low. If amendments are not made, the LSB will effectively
become a front-line body, wastefully duplicating the activities
of the FLRs and the opposite of what Sir David Clementi recommended.
8. We propose that the threshold for each
of the Board's powers should form a graduated range, matched to
the particular mischief at which the Bill is directed:
(a) The Bill should make clear that the power
to set targets should be the first stage in dealing with an FLR,
where the Board considers that it is not performing any of its
regulatory tasks satisfactorily.
(b) The Bill should also provide that the
powers to punish an FLR and intervene in its activities should
be based on the "need to avoid demonstrable harm to the regulatory
(c) The Bill should provide expressly that
financial penalties should only be imposed where it is clear that
the FLR has culpably failed to co-operate with directions or to
(d) The Bill should provide that an intervention
direction or a recommendation to cancel designation can only be
made where the LSB is satisfied that "serious harm would
be caused to the regulatory objectives".
9. We make detailed proposals below for:
(a) Additional ways by which the Bill could
provide for the accountability of the LSB.
(b) Improvements to the provisions in the
Bill regarding appeals from decisions of the LSB.
(c) Removal of the LSB's power to approve
the practising certificate fees of authorised regulators (which
is unnecessary, given the LSB's powers of direction).
The arrangements for Complaints Handling
10. The Bar Council believes that the proposals
for the OLC are inflexible and unlikely to provide the best results
11. The Bar Council proposes two alternative
ways of improving the Bill's central provisions:
(a) The handling of all complaints should,
where the LSB is satisfied that this is appropriate, be left to
(b) Alternatively, the complainant should
be able to choose whether the FLR or the OLC resolves the complaint.
Both alternatives would require the FLR to be
permitted (in consumers' interests) to award redress.
12. The Bar Council also believes that:
(a) It is inappropriate for the OLC to be
able to award redress to individuals who are not the lawyer's
(b) An appeal process from any decision of
the Ombudsman is essential under Article 6 of the ECHR.
The cost of the new system
13. The Bar Council believes that the estimated
cost of the new system are speculative and optimistic and that
the proposed system may adversely affect a number of practitioners.
It recommends the following changes:
(a) Many of the Board's functions involve
public policy considerations which ought to be funded by the taxpayer.
We, therefore, propose that the Government should fund at least
33 per cent of the total cost of the LSB (as is the case with
the Financial Reporting Council).
(b) The cost of the new regime should be
split fairly between the various professions and should not cost
(c) The professions must be involved in the
process for setting the costs.
(d) The arrangements for apportioning costs
should not adversely affect those who are vulnerable to unmeritorious
complaints, as a result of the nature of their work. This particularly
affects members of the criminal Bar.
14. The Bar Council supports the broad thrust
of the Bill and has worked closely with Sir David Clementi and
the Department for Constitutional Affairs on the development of
the Bill's provisions. In particular, it has already taken action
to carry out one of Clementi's central recommendations: that there
should be a split between the regulatory and representative elements
of the Council's work. The BSB was established in January this
year, with members being appointed on Nolan principles and a lay
chair. Details about the BSB are at Annex A. [Submitted but not
15. The creation of the BSB needs to be
taken into account in considering the operation of the Bill. The
separation of regulation from representation is designed to remove
the concerns of consumers about the previous system and enable
us to build on our acknowledged record in regulating barristers.
16. The Bar Council has always tried to
place the public interest at the forefront of its approach to
regulation. The operation of its complaints system has consistently
been the subject of approval from the Legal Services Ombudsman,
and we continue to review our systems and rules to ensure that
they are fit for purpose. We anticipate that the BSB will take
this process forward; for example, the new Complaints Commissioner
will be conducting a full review of the complaints system.
17. A description of the Bar's complaints
procedure is at Annex B. One of its crucial features is the involvement
of experienced barristers, including QCs, in providing (cost free,
or pro bono) support. This involves high quality analysis of the
complaint and the issues raised. Consideration of complaints involves
a high degree of participation from lay people. The result is
a robust system of regulation at low cost to the profession and,
critically, to the consumer.
18. There are many positive things in the
Bill. First, we welcome the role for the professions as what Clementi
and the White Paper called Front Line Regulators (FLRsreferred
to in the Bill as "approved regulators"). Second, the
establishment of the LSB will take the legal sector out of the
direct political influence of the Secretary of State, which is
desirable. Third, the proposals for setting proper timetables
for consideration of rule changes are sensible. Fourth, we support
encouragement of greater choice for consumers and believe that,
if issues of potential conflict of interest can be resolved, Alternative
Business Structures (ABSs) may provide this, as well as greater
service opportunities for the Bar, and for the legal profession
19. Our principal concerns arise over (a)
the powers of the LSB; (b) the arrangements for complaints handling;
and (c) the cost of the new system.
20. In respect of cost, it is recognised
that there are a considerable number of imponderables, all of
which are likely to raise costs unless there are firm mechanisms
for control. Causes for concern are:
(a) The extent to which the LSB will use
its powers and, instead of being a light touch regulator, become
an expensive regulator seeking to micro-manage the FLRs.
(b) The number of complaints likely to be
received by the OLC and the efficiency of its procedures in dealing
with those complaints, particularly those which are unmeritorious.
(c) The fact that the FLRs themselves may
well want to modernise their arrangements at increased cost or
need to respond to initiatives from the LSB.
(d) The assumption of efficiency savings
in the OLC, which we think are unrealistic.
21. We consider it crucial that strong means
exist for ensuring the accountability of the LSB and the OLC and
for ensuring that costs are properly controlled. We deal with
22. We support the regulatory objectives
set out in Clause 1.
23. We support the proposal that the LSB
should exist as a flexible oversight regulator (what was described
in Clementi's original proposal as a "light touch" regulator).
We support the view that the main work of regulation should be
undertaken by the FLRs. We think, however, that there is a real
danger that the LSB will become a heavy-handed regulator micro-managing
the FLRs. We particularly note that under the Bill as it presently
(a) there is a danger of the LSB taking a
"one size fits all" approach to the FLRs;
(b) the LSB's accountability to stakeholders
is unclear and inadequate;
(c) the thresholds for use by the LSB of
its various powers are set too low; and
(d) the availability of legal recourse (appeals
etc) against decisions and actions of the LSB is inadequate.
24. We have a diverse legal system in which
the various branches of the wider legal profession act in different
ways to meet the needs of their various consumers. The proposal
for FLRs to continue to regulate individual branches of the profession
seeks to retain this diversity. It must be recognised, however,
that different FLRs may choose to regulate in different waysaccording
to the particular conditions in which those they regulate practise
and the degree of risk involved. This difference in approach should
be permitted to continueunless it causes harm to the regulatory
25. Much of Part 4 of the Bill
is concerned with draconian powers of intervention, with little
statutory guidance or control over the exercise of those powers.
Nor is the LSB required to work in partnership with others, particularly
the FLRs. The fact that public interest-led FLRs already exist
suggests that such extensive powers are unnecessary and that the
focus should be on allowing the FLRs to do their work without
26. A direct comparison with the Financial
Services Authority is inappropriate because it regulates practitioners
directly, but the LSB will affect practitioners and many aspects
of the accountability of the FSA would be suitable for this model.
In addition, therefore, to the provisions set out in Part 2 of
the Bill (objectives and principles to be observed by the LSB,
an annual report to Ministers (and thence to Parliament) and a
Consumer Panel), there should be provision akin to those in the
Financial Services and Markets Act 2000 (FSMA) for:
(a) A Practitioner Panel (cf. FSMA, section
(b) Ministerial action where there is unease
about the way in which the LSB is conducting its affairs in terms
of economy, efficiency and effectiveness (cf FSMA section 12).
(c) Internal machinery for ensuring efficient
and economic discharge of functions (FSMA Schedule 1 paragraph
(d) A Complaints Commissioner to consider
complaints about the activities of the LSB (FSMA, Schedule 1 paragraph
(e) An annual public meeting (ibid. paragraph
(f) Involvement of the fee payers in the
process of settling the financial needs of the LSB/OLC as a whole
and in the distribution of the burden among the various sources
of paymentat the very least, there needs to be consultation
with the relevant fee-paying bodies, and preferably with the public
at large (cf FSMA Schedule 1 paragraph 17 and section 155;
and the recent approach taken by the Healthcare Commission).
(g) Provision to encourage a cooperative
and constructive approach to regulation. 
Triggers for Exercise of the LSB's Powers
27. It is striking that in Part 4 of the
Bill almost all the powers, with the exception of setting performance
targets, are triggered by much the same set of threshold conditions
(including failing to perform functions to an "adequate standard"
or to "comply with any requirement imposed on it").
Only two of the powers require any further, more substantial trigger:
these are the extreme powers of an "intervention direction"
and a "recommendation to cancel designation". Both require
the LSB to be satisfied that the measure is "appropriate"
and that the failures cannot be adequately addressed by other
means. By their nature, it is unlikely that these will be exercised
except in the most extreme circumstances. This means that, in
practice, the Board will be exercising its powers through directions.
28. If the bar for intervention by the LSB
is set too low, the LSB will effectively become a front-line body,
wastefully duplicating the activities of the FLRs. It is important
that the Bill carefully pitch the threshold for each of the Board's
powers, ensuring that they form a graduated range, sensibly matched
to the particular mischief at which the Bill is directed.
29. The power to set targets could easily
prove to be a way of imposing unnecessary burdens on the sector
and for second-guessing the way in which the FLRs do their work.
Setting targets should be the first stage in dealing with an FLR,
where the Board considers that it is not performing any of its
regulatory tasks satisfactorily. This should be made clear on
the face of the Bill.
30. Beyond that, the powers to punish an
FLR and intervene in its activities should be based on the need
to avoid demonstrable harm to the regulatory objectives. Financial
penalties should be imposed only where it is clear that the FLR
has culpably failed to co-operate with directions or to meet targets.
In the case of an intervention direction or a recommendation to
cancel designation, the LSB should be satisfied that serious harm
would be caused to the regulatory objectives unless it exercised
31. It is surprising that, in the entirety
of the clauses about the powers of the LSB in relation to approved
there is only one mention of any power to challenge a decision
of the LSB by judicial proceedings. Moreover, that provision,
permitting an appeal to the High Court against the imposition
or amount of a penalty, is drafted in as restricted a way as could
There is no equivalent challenge in the High Court in cases of
manifest unfairness or irrationality by the Board or if the Board
itself has acted in contravention of the regulatory objectives
in reaching its decisions or in setting a penalty. We understand
that in other regulatory regimes there is an appeal on the merits
from a decision of the regulator to a specialist tribunal, but
it would be cumbersome and costly to create yet another regulatory
body here. We therefore suggest that the appropriate solution
would be to allow an appeal on the merits to the High Court, but
only with the permission of the High Court, so as to deter unnecessary
32. No doubt the remainder of Part 4 is
still open to challenge by way of judicial review, but that is
wholly inadequate for the kind of decisions to be taken by the
LSB, many of which will affect the livelihoods of thousands of
Power to Approve FLR Fees
33. We consider that the provisions at clause
43(5) and (6) are unnecessary. If an FLR is to plan properly,
it needs to be able to budget for its activities with certainty.
The involvement of the LSB will only create delay and uncertainty.
Moreover, it is unnecessary. The LSB would only need to interfere
if, in particular circumstances, it considered that (a) the fee
was too low and jeopardised the FLR's regulatory ability or (b)
the FLR was using money inappropriately. In such cases, its powers
of direction would be sufficient to enable it to take action.
34. We recognise that schemes to compensate
consumers for negligence and dishonesty need to exist. It is right
that lawyers should contribute to such funds if their consumers
are at risk from their activities. However, some lawyers (such
as barristers) do not handle clients' money, and so the risk of
the consumer losing money is negligible. It would thus be inappropriate
to require them to subscribe to such a fund. The powers for the
Board to consider such issues are properly drawn and we would
expect the Board to operate proper risk-based regulation in the
decisions that it takes.
35. We believe that the proposals for complaints
handling are inflexible and unlikely to provide the best level
of service for consumers. While it is clearly right that there
should be an oversight regulator to ensure that complaints are
handled properly, there are strong arguments for greater flexibility
so that, where appropriate in the view of the LSB, complaints
handling can be left to the FLRs. This is because:
(a) FLRs should be involved in the full range
of complaints made against their members so that they can provide
guidance or rule changes if necessarythis is a crucial
part of a regulator's role.
(b) About 70 per cent of complaints against
barristers involve allegations that, if true, would require both
compensation and proceedings for misconduct. The FLRs should be
in a position to deal with both aspects if this is appropriate.
It is at best inconvenient for consumers if they have to deal
with two different bodies in respect of different aspects of their
complaints. Examples of these mixed complaints are set out in
(c) Complainants do not just want redress.
Complainants contacting the Bar Council also want to see the barrister
reprimanded or disciplined. The FLRs have a range of powers from
advice as to future conduct to disbarment, including the power
to award redress, which are far wider than those proposed for
the OLC. This enables them to ensure that the most appropriate
remedy or sanction is provided through a single procedure.
(d) Where a complaint discloses cause for
serious concern, then the FLR needs to be aware of this urgentlyno
matter how efficient the OLC is, there will be an unnecessary
and potentially damaging delay.
(e) Where the OLC decides that disciplinary
action is necessary, there is likely to be duplication of work
between it and the FLR and the complainant may well be confused
by the fact that two bodies are dealing with essentially the same
complaint. There is a danger of inconsistency and considerably
36. Part 6 of the Bill enables service complaints
against practitioners to be dealt with, if the complainant so
wishes, by an independent ombudsman rather than an FLR. That serves
the regulatory objectives by steering complaints away from an
approved regulator whose own complaints-handling record fails
to earn public confidence. But the apparent element of choice
in clause 102(1)(b) is seriously undermined by clause 127, which
prohibits an FLR from granting redress for a complaint. The result
is that, in reality, all complaints will be removed from the FLR
and into the ombudsman scheme, no matter how demonstrably effective
an individual FLR's complaints-handling machinery may be. This
approach is unlikely to benefit consumers. It will fetter the
FLR's power to act appropriately in individual cases (particularly
if it considers that the OLC's response has been too lenient).
It will also mean that if, as we fear, the OLC becomes a cumbersome,
inefficient bureaucracy, the consumer will have no alternative
other than the courts (which will decide the complaint on strictly
legal grounds, rather than on the wider basis envisaged for the
37. The best course would be for Part 6
of the Bill to begin from the same starting point as Part 4: that
is, the FLR should undertake the front-line function unless the
LSB considers that that function should be removed in the public
interest. Complaints should not fall within the (de facto compulsory)
jurisdiction of the ombudsman scheme, nor should the FLR lose
its power to grant redress, unless the Board, on appropriately
framed grounds, gives a direction to that effect. It may be that
one or more FLRs, as at the commencement of the Bill, would prefer
to relinquish complaints-handling functions; or the LSB may decide
that a direction removing those functions from them is apposite
from the outset. But that does not undermine the principle. FLRs
whose complaints-handling currently works well should have the
opportunity to continue to serve the public under the new regime.
Clearly the OLC or the LSB would need appropriate monitoring arrangements
to ensure that the FLRs were carrying out their tasks appropriately.
38. An alternative would be to give the
consumer a choice of either the FLR or the OLC route to resolution
of a complaint. This would require qualification of the removal
from FLRs of the power to grant redress. As a bare minimum, a
slight modification could be made to the present scheme of the
Bill, involving the use of scheme rules made by the OLC. Clause
102(5)(e) already enables the OLC, by scheme rules, to provide
for a complaint to be considered and determined by a body other
than an ombudsman. That would include an FLR and would enable
complaints needing both redress and conduct proceedings to be
handled holistically. To enable that to work effectively, it would
be necessary to make an exception to clause 127(1) to enable an
FLR to grant redress in respect of complaints referred under scheme
rules providing for determination of complaints by the FLR. This
route, however, is likely to be less satisfactory than one enabling
the FLR to continue to award redress.
39. The proposals in the Bill will be particularly
unfortunate so far as the Bar is concerned. Relying on its own
expertise it has established and for many years maintained a complaints
handling service which is widely acknowledged to be of a very
high standard. In her Annual Report for 2004, the Legal Services
Ombudsman, Zahida Manzoor CBE, said that the Bar Council achieves
a very high satisfaction rating from her office, one that is substantially
higher than that of the other professional bodies. She found the
Bar Council to work in a very open and cooperative manner. Its
approach left her office with a strong impression that it is confident
about its existing complaints handling capabilities but is nonetheless
far from complacent and is constantly seeking to make improvements
to its operations. The Bar Council, she concluded, seeks to ensure
not only that it is complying with its own procedures but that
it offers a fair, consistent and good quality service generally
to the consumers who use its services.
40. The proposed new system will be radically
different, will involve decision making by non-lawyers who are
unlikely to be able to supply the level of analysis and expertise
whichfor the sake of complainantsis now provided.
It will moreover involve the Barunlike other branches of
the profession, who have not had the same level of cost-free inputin
very significant extra expense.
41. We are further concerned by what appears
to be a power to enable the OLC to award redress to individuals
who are not the lawyer's client. We consider that this will put
further pressure on the lawyer/client relationship. Lawyers often
have to do things on their client's instructions, to which a third
party will object. To put the lawyer under the additional threat
of having to pay redress to that person (or, at least, to pay
for the investigation of a complaint) will put further pressure
on the client/lawyer relationship and will enable opponents to
make threats which jeopardise that relationship.
Qualifications of the Chief Ombudsman
42. We are puzzled by the provision that
the Chief Ombudsman and assistant ombudsmen may not be lawyers.
Most ombudsmen in similar schemes are lawyers because the training
and experience they have enables them to analyse cases properly
(in the sense of the rules relating to decision making) and to
reach appropriate decisions. While we can understand the perception
that lawyers may be inclined to favour their own, we do not believe
that this is a charge that can be made convincingly against individuals
otherwise appropriately qualified to undertake this task.
43. In our view an appeal process from the
decision of the Ombudsman is essential under Article 6 of the
ECHR, particularly if the compensation limit is to be raised to
£20,000. We attach at Annex C [submitted but not printed]
a copy of a note that we have received to this effect.
44. We have five main concerns about costs:
(a) The estimates are speculative and, in
our view, optimistic.
(b) Some central Government funding is required
to ensure that the professions are not subject to unjust burdens;
(c) Costs for the Bar are likely to increase;
(d) Apportionment of costs between FLRs needs
to be fair and to be transparently handled; and
(e) The Bill's definition of a "polluter"
in the context of "the polluter pays" principle could
work real injustice.
45. The estimated costs in the Regulatory
Impact Assessment are lower than those included with the original
report by Sir David Clementi. While this is to be welcomed as
a gesture of intent, these estimates cannot be binding on the
LSB. Moreover, the assumption that the OLC will be able to achieve
efficiency savings of the level suggested in the report is optimistic.
The Bill appears to give the LSB the effective power to tax the
profession, with no apparent control, beyond the retrospective
scrutiny of the Public Accounts Committee. This is unacceptable.
Central Government Funding
46. The proposals in the White Paper and
subsequent statements (and, indeed, clause 131 of the Bill) indicate
that the Government considers that the full cost of the LSB should
be borne by the sector. It is noteworthy that this transfers a
good deal of expense currently borne by the taxpayer (because
it is done by the DCA) to the regulated sector. We believe that
there should continue to be some funding by the taxpayer (on the
lines of the Financial Reporting Council, to which the taxpayer
contributes 33 per cent of the cost), as Sir David Clementi pointed
This is for the following reasons:
(a) it will provide a further level of accountability
for the LSB;
(b) it will add to the perception of the
system's independence from the profession, a point made by Sir
David Clementi; and
(c) there are a number of functions which
it would be inappropriate to ask the professions to fund.
47. The third point needs elaboration. The
LSB will have a duty to consider whether individual activities
ought to be brought within the regulatory framework. Presumably,
this will typically be because the conduct of people outside the
framework is giving cause for concern. The LSB has a duty to do
so if asked by the Secretary of State and other individuals (not
including the FLRs or their representative equivalents). The cost
of such an investigation could be considerable and there are general
public interest questions involved. It will be difficult, if not
impossible, to collect the costs of the investigation from the
unregulated sector, particularly if the decision is not to bring
the activity within the net. It would be unconscionable to expect
the professions to pay for investigations which they did not initiate
and which they might consider unnecessary.
Costs for the Bar
48. The Regulatory Impact Assessment concludes
that the cost of regulation will not increase overall after a
transitional period. It projects an increase on the LSB side of
£3 million to £5 million, and possible savings on the
OLC side of £8 million to £12 million.
Transitional costs of £25 million are mentioned. Even if
these figures turn out to be near the mark, there is at present
little analysis of how the costs and savings, if achieved, will
impinge on different sectors. There is a real danger that the
approach to the OLC in particular will have serious adverse effects
on the Bar. The costs of the Bar's complaints system, depending
largely on unpaid volunteer work, are around £640 per complaint,
compared with what would appear to be around £1,000 per complaint
under the new system.
Even if efficiency savings are made, which seems questionable,
the effect in terms of cost on individual members of the Bar,
and on the profession as a whole, is likely to be seriously adverse.
The cost of staff needed by the new organisation to undertake
the work done voluntarily by barristers is likely to be considerably
in excess of any savings to the Bar Council. This will result
in increased cost to the Bar, even if the overall system may be
cheaper. Moreover, there is no guarantee that the task will be
more effectively performed by OLC staff, and some may feel that
there is reason to fear the contrary.
Apportionment of costs.
49. It is vital that the process of apportioning,
between the different FLRs, the costs of the LSB and, if necessary,
of the OLC, is carefully considered. The process needs to produce
a fair outcome and must avoid any element of cross subsidy. The
Bill does not yet secure this. It does not, for instance, appear
to embrace the desirable principle that those who do not provoke
increases in costs should not have to pay for them. The basis
on which apportionment takes place should be clearly and publicly
stated. For instance, most of the charges should reflect the costs
to the system that the paying parties themselves have provoked,
though a small amount could be regarded as base costs and recovered
on a basis of headcount or turnover.
50. As we indicate at, paragraph 26(f),
the Bill needs to contain provision to ensure that the stakeholders,
and in particular the FLRs, are involved not only in the process
of setting that suggested policy, but also in its periodic application.
As it stands, Part 8 of the Bill is deficient in both these respects.
The Bill's approach to "the polluter pays"
51. Clause 106 requires the LSB to make
rules governing the payment of charges by respondents to complaints.
We understand that the proposal is that the alleged "polluter"
should pay towards the costs of the complaint, even if the complaint
proves groundless. This is not only conspicuously unfair, it is
also contrary to the Clementi recommendation on this point.
A person who is found not to have committed any wrong is not a
"polluter"; by contrast, his accuser may very well be
one. The Regulatory Impact Assessment recognises that there are
some sectors, particularly barristers specialising in criminal
law, which are particularly susceptible to complaints which tend
to be unfounded. In the Bar Council's view it is entirely inappropriate
that those who are the subject of a complaint that is not upheld
should be required to pay directly towards the costs of investigating
52. The Bar Council is in favour of the
liberalisation of services (and, indeed, has made a number of
reforms of its own rules to permit easier access to barristers).
The proposed new ABSs may well provide improved ways for consumers
to access legal services and provide new sources of work for barristers.
We have expressed concerns, however, that there is a danger that
organisations in which non-lawyer owners or managers work with
lawyers, may give rise to conflicts of interest or to conflicts
of rules which may adversely affect consumers. The Bill's solution
is to leave it to the LSB and the licence regulators to decide
whether or not individuals are suitable to hold these posts, with
the posts of Head of Legal Practice (HOLP) and Head of Finance
and Administration (HOFA) with duties to ensure compliance. It
is essential that individuals operating within an ABS, whether
lawyers or non-lawyers, maintain appropriate standards of conduct.
The regulatory provisions in the Bill should achieve this so far
as lawyers are concerned. The extent to which, through the Bill
or otherwise, non-legal participants will be appropriately regulated
will merit careful examination.
Legal Professional Privilege
53. We are concerned that clause 139 of
the Bill may not adequately deal with the needs of ABSs in respect
of legal professional privilege. We attach a note that we have
received on this point at Annex D.
54. With regard to clauses 46-50 of the
Bill, we would refer the Committee to the concerns set out in
paragraphs 16-21 of our response to the White Paper. For ease
of reference these are attached at Annex E. [Submitted but not
55. The offences set out at clauses 11 and
12 are generally appropriate, but we are concerned that they do
not provide similar protection to consumers in respect of the
title "barrister" as is provided by the Solicitors Act
1974 in respect of solicitors. The provisions in the Solicitors
Act 1974, making it an offence for anyone other than a practising
solicitor to use the title when offering legal services, appear
to be unaffected by the Bill. There is no equivalent prohibition
protecting the title of barrister. Under these provisions an individual
could legally claim to be a barrister when offering unrestricted
legal services (eg simply supplying legal advice) or when asserting
that he or she is particularly credit-worthy, without committing
an offence. The title should have equivalent protection to that
General Council of the Bar
1 Except for clauses 22 and 23 on the functions and
duties of the front line (approved) regulators, clauses 46 to
50 on competition matters, and 51 to 56 on the LSB as a front
line (approved) regulator in its own right. Back
The Financial Services Authority (FSA) has to consider their
representations and explain any disagreement it has to each of
them. In the Bill the provision is one sided. Back
For a slightly different set of internal controls see Section
3 of the Bank of England Act 1998. Back
For the Financial Ombudsman Service, the same duty on the FSA
to consult is provided by section 234 (read with section 155). Back
The Bill does not have the standard provision about cooperation
between regulatory authorities of the sort in the Financial Services
Act 1986, at paragraph 5 of Schedule 7. Back
Clauses 24 to 45. Back
In clause 32, especially subsection (4). Back
The only grounds are, broadly, excess of power, and procedural
irregularity causing substantial prejudice. Back
Review of the Regulatory Framework for Legal Services in England
and Wales, paragraphs 35-26. Back
The Committee will no doubt wish to test some of the underlying
assumptions about economies of scale, efficiency savings and a
"steady state" in relation to the numbers of complaints. Back
This assumes around 16,000 complaints per year, which we understand
to be the current figure for solicitors. Complaints against other
professionals will add around 500 to that amount. Back
ibid. Paragraph 71. Back