Regulators had better get ready for partisan politicisation

6 February 2020

With the next Labour leader likely to be a lawyer, it’s inevitable that watchdogs will be co-opted into political struggles.

Odds are that the next leader of the Labour Party will be a lawyer, and legal regulators must be bracing themselves for a new side role: coping with a likely increase in complaints about the decisions and statements that person makes, even if totally unconnected to the world of legal practice.

The two frontrunners — Sir Keir Starmer, QC, and Rebecca Long Bailey — are a practising barrister and a non-practising solicitor, respectively. As such, two regulators — the Bar Standards Board and the Solicitors Regulation Authority — have jurisdiction over them for professional and personal conduct.

Regardless of who is elected — and even the barrister Emily Thornberry is still just about in the running — expect complaints to be made. Not because any of the candidates is likely to have done anything professionally wrong — we simply live in a culture that is more likely to complain.

The overlap between law and politics is well established. And there have been examples of legally qualified politicians piquing the interest of regulators for conduct outside the law.

Lutfur Rahman, the former mayor of the east London borough of Tower Hamlets, was struck off as a solicitor in 2017 after his conviction for electoral fraud.

In other cases there is a sense that a complaint is made for political reasons. During Tony Blair’s premiership, the Bar regulator rejected a complaint about Lord Goldsmith, QC, then attorney general, for advice he gave regarding the Iraq war.

Complaints that do not lead to disciplinary proceedings are normally kept confidential, so it is likely that there have been others about other elected politician lawyers.

Because we live in an age of social media and seemingly greater levels of anger against politicians, regulators are likely to see a higher level of complaints.

Even at this early stage of the Labour leadership campaign, Ms Long Bailey has been the subject of adverse reporting over her CV. It seems inevitable that there will be more complaints in relation to the first legally qualified party leader in the social media age.

Regulators will, of course, be anxious to limit the resources that they allocate to the task of what effectively amounts to political complaints handling. They both have other work which is more deserving of their limited budgets.

However, it is more difficult now to draw a clear line between the conduct of a lawyer in practice and outside law. For example, the SRA and BSB already deal with complaints involving the actions of solicitors and barristers on social media.

Therefore, it will be tricky to dismiss a complaint because it is not within their jurisdiction. Instead each will have to be decided on its merits or the level of regulatory risk the complaint presents.

Being drawn into expressing views in these areas then drags the regulator into the underlying debate and raises the prospect of judicial review challenges, which no matter how hopeless takes up more resources.

And lawyers will be paying for the privilege through their practising fees.

This article first appeared in The Times on 6 February 2020. 

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