Report No. 266

Chapter - XVI

The Relevance of Framework of Regulation of Legal Profession in the United Kingdom

16.1 After undertaking a review of the regulatory framework of legal profession in 2002,66 based on the report titled "Competition and Regulation in the Legal Services Market",67 the Department of Constitutional Affairs (UK Government) concluded that the regulatory framework for legal services in England and Wales was out-dated, inflexible, over-complex and insufficiently accountable or transparent.68 As a result, Sir David Clementi was appointed on 24th July 2003, to conduct a Review of the Regulatory Framework for Legal Services in England and Wales with the terms of reference being:

• "To consider what regulatory framework would best promote competition, innovation and the public and consumer interest in an efficient, effective and independent legal sector.
• To recommend a framework which will be independent in representing the public and consumer interest, comprehensive, accountable, consistent, flexible, transparent, and no more restrictive or burdensome than is clearly justified.69

16.2 As a result of the Clementi Report and implementation of the recommendations made therein, the Legal Services Act 2007 (hereinafter referred to as the Act, 2007) came into force which liberalises and regulates the market for legal services in England and Wales so as to encourage more competition and to provide a new route for consumer complaints. Accordingly a Legal Services Board, an independent statutory body, was established under the Act 200770, which is responsible for overseeing legal regulators in England and Wales. It is independent of government and the legal profession, and is the oversight regulator for eight separate bodies, named as 'Approved Regulator''71 in the Act, 2007.

16.3 While the Act, 2007 also deals with other kinds of legal practitioners such as Legal Executives, Licensed Conveyancers, Patent Attorneys, Trade Mark Attorneys, Law Costs Draftsmen as well as Notaries. For the present purposes, the regulatory mechanisms for Solicitors and Barristers have only been analysed.

16.4 The enactment of the Act, 2007 has ushered in a new era of regulation of legal profession in the United Kingdom which has recognised the short-comings of 'self-regulation' and has shifted its focus towards the interests of consumers. Emphasising on the need for independence of legal profession from outside influences (especially government) as well as the call for a regulatory framework which was independent in representing the public and consumer interest, a statutory oversight body (Legal Services Board - in short, LSB) has been created for consistent oversight of Front-line regulators (who are responsible for regulation of their own professionals). Being an Independent Statutory body, the provisions of the Act, 2007 have ensured that the Board comprises of a lay majority as a whole with the Chairman of the Board also mandated to be a lay member. For the protection of Consumer interests, an independent arm of the LSB such as Consumer Panel has been established which acts as an advisory body to the LSB so as to help them make decisions that are shaped around the needs of users.

16.5 With regard to the functioning of the front-line regulators for solicitors and barristers, it has been made imperative that the representative and regulatory functions are separated and distinguished. For the same purpose, the Law Society acts as a representative body for solicitors whereas, the Solicitors Regulation Authority (in short, SRA) discharges the regulatory functions. While acting as an independent regulatory arm of the Law society, the composition of the Board of SRA is diluted wherein out of the 15 members, seven members are solicitors and remaining eight are lay persons out of whom one is appointed as the Chairman. Such a setup is inclusive in nature wherein through dilution in the composition of the board, specific problems in regard to disciplinary action against lawyers by lawyers are avoided.

The same principle has also been applied with regard to the Solicitors Disciplinary Tribunal, whose composition includes both solicitor members as well as persons who are neither solicitors nor barristers (lay members). Similar set up also exists for the regulation of barristers wherein the Bar Council takes care of the representative functions and Bar Standard Board along with Professional Conduct Committee and Disciplinary Tribunals discharge the regulatory obligations as prescribed under the Act, 2007. Similar ratios of practicing barristers as well as lay members are ensured in Professional Conduct Committee whereby a lay member majority is mandated. In regard to the composition of the Disciplinary Tribunals for barristers, along with the presence of a barrister (having experience of not less than seven years), the presence of a Judge (as Chairman) and at least one lay member is mandated.

16.6 It is important to note here that in India, the Ministry of Law and Justice, Department of Legal Affairs floated a draft bill namely Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Bill, 2010, which intended to establish a Legal Services Board on the lines of the Legal Services Board in UK suitable in the Indian situation. However, no further progress has been reported on the draft Bill.