Reflecting on 10 years of the Legal Services Act
Dr Steven Vaughan, UCL Faculty of Laws
Many years ago, I remember a partner telling me that his daughter wasn’t allowed, because of the firm’s partnership agreement, to work at his firm but that she would, of course, go to one of the other magic circle firms. This idea, that lawyer dynasties would spread their bloodlines throughout various elite firms, has stayed with me ever since.
I have worked with the Solicitors Regulation Authority for more than six years, sitting on its committees, doing research for it etc. And when Iain Miller asked if I might blog about the 10th birthday of the Legal Services Act, this idea of bloodlines came back to me. In particular, it got me thinking about how regulatory learning and development can happen because of the histories of those at the top: where they have come from, where they go to. Regulation by osmosis, if you will.
When I first sat on the SRA’s Education Committee, Samantha Barrass was the SRA’s Executive Director. Earlier in her career, Samantha had worked at the Financial Services Authority (as it then was), leading on the delivery of outcome focused and principles-based regulation. OFR was very much the buzzphrase of the SRA during Samantha’s time, but while OFR remains a core regulatory approach (seen, for example, in the language of the Handbook) I’ve noticed a reduction in OFR, and ‘risk based regulation’, as SRA narratives since Samantha left. The SRA’s ‘risk centre’, for example, is now the ‘research and analysis team.’
Paul Philip, who replaced Anthony Townsend as SRA Chief Executive in early 2014, had spent more than a decade at the General Medical Council, latterly as deputy chief executive and chief operating officer. At the GMC, Paul had led on the regulator’s disciplinary work, ethics guidance, fitness to practice rules and the GMC’s in-house function. Little surprise then, perhaps, that as part of the SRA’s ‘Looking to the Future’ regulatory reforms we will see a much reduced Handbook and a larger role for guidance, that the SRA’s ‘Question of Trust’ campaign has sought to better understand (and harmonise) what should be the standards expected of solicitors and how breaches are sanctioned, and that there are ongoing debates with the Solicitors Disciplinary Tribunal about the standard of proof in disciplinary proceedings. The SRA’s first General Counsel, Juliet Oliver, had also worked at the GMC with Paul. While it’s hard, I accept, to sometimes pin specific policy directions on specific people, trends are apparent.
Crispin Passmore joined the SRA as Executive Director at the end of 2013, just before Samantha’s departure. He arrived from the Legal Services Board and had previously worked for the Legal Services Commission, and (and perhaps most importantly) as Chief Executive of the Coventry Law Centre. What we saw, with Crispin’s appointment, was a reorientation of the way the SRA thought (and now thinks) about regulatory rules acting as barriers to unmet legal need, and a push for innovation, all part of ongoing liberalization of the legal services market. There was also a sea change in relation to the SRA’s sartorial style, but that’s a different blog.
The point I am making, I think, is that while we have had ten years of a fixed regulatory apparatus in the form of the Act, what has perhaps been just as important (if not more so) are the regulators working within that apparatus: who they are, where they have come from, which regulatory ideas and other values they bring with them as they come to operationalise the LSA. Put short, regulatory bloodlines matter.