ANALYSIS:Bill will bring legal profession under the supervision of executive, writes CAROL COULTER
MANY OF the proposals in the proposed Legal Services Regulation Bill will be welcome, in particular those relating to legal costs. It outlaws the practice of charging a percentage of damages obtained in compensation cases, and that of junior counsel charging two-thirds of a senior counsel’s fees. Clients will receive a detailed estimate in advance and must be provided with a detailed bill of costs at the end. Disputes will go to a new office of legal costs adjudicator.
A measure of transparency will be brought to the way in which legal costs are decided by the publication of some of the adjudicator’s decisions. However, this transparency will be limited as, unlike the Taxing Master at present, hearings of disputes over costs will not be in public and decisions concerning cases normally heard in private will not be published. This will cause concern, as much of the controversy around legal costs relates to family law cases and, under this Bill as it stands, disputes about them will never see the light of day.
The public will also welcome the new regime for making complaints against legal practitioners, which is not user-friendly at the moment. Such complaints will go to an independent complaints committee which will, in the first instance, encourage the informal resolution of the complaint. A new disciplinary tribunal, with jurisdiction over both solicitors and barristers, will hear serious complaints and can recommend to the High Court that a practitioner is struck off.
It is unlikely the general public will have strong views about some of the other proposals, which concern how the professions are organised and regulated. They will, however, cause consternation within the professions themselves and it is unclear how some of them will improve access to justice for citizens.
The Bill brings the legal professions under the supervision of the executive. The Government will directly appoint the legal services regulatory authority, which has extensive powers, including the drawing-up of codes of conduct. It will approve these with the consent of the Minister for Justice.
It is the Government, too, that will appoint the disciplinary tribunal, which, with the authority, will be responsible for policing the professions.
This is a departure from normal practice in either the rest of the common law world or in the civil law jurisdictions in most EU member states. The legal profession in the US is under the supervision of the Supreme Court. In the UK, the regulatory authority has a supervisory function over the regulatory machinery of the professions, and involves the chief justice. In other EU states too the legal profession is regulated independently of government. The explanatory memorandum does not explain why the Government has adopted this new form of regulation.
The Bill also proposes other changes. Some, like ending the requirement to wear wigs and gowns, are largely symbolic. Others, which end the way the Bar works and include preparations for multidisciplinary partnerships, could have far-reaching consequences, particularly for ready access to high-quality legal representation for the most marginalised.