Red tape is everywhere, from edicts issued by schools banning games of conkers to the raft of legislation now governing the professions. If Max Mosley has his way, there will even be laws ending the centuries’ old tradition of “publish and be damned”, with judges, rather than newspaper editors, having the right, as a matter of course, to scrutinise newspaper copy before it is published. It couldn’t happen here, surely?
Perhaps such a development is unlikely, but the recent experience of the British professions shows that regulation can creep up so insidiously that before anyone has had time to think about it, it’s ubiquitous. Today, as Spada’s report British Professions Today: the State of the Sector, reveals, “regulated self-regulation” is the norm. The paradigm of professional self-regulation may have been called into question – by Thatcher and, more recently, the Office of Fair Trading’s 2001 report, Competition in the Professions – but in its stead we now find government-imposed new regulatory models of “front-line regulators”. Bodies such as the Council for Healthcare Regulatory Excellence (CHRE), the Financial Reporting Council (FRC) and the Legal Services Board (LSB) answer not to their professions but to government.
As Spada’s White Paper explains, the legal profession, more than any other, has seen huge changes wrought by the changing regulatory landscape. The Clementi Review of 2004 began the process, identifying a number of flaws in the system, not least (and anathema to lawyers d’un certain age) an insufficient regard to consumers. There are still, today, solicitors who labour under the misapprehension that clients are privileged to be able to consult them, but the implementation of the Legal Services Act 2007 is intended to bring about change in both practice and perception. It created the LSB, and in its wake the Law Society and the Bar Council ring-fenced their regulatory and representative functions.
But still there is disquiet. Is there now a blurring of regulatory function which is confusing to the consumer? Are resources scattered and inappropriately applied? Are consumer interests adequately protected?
The questions raised in the legal profession’s regulatory development are applicable to all the professions. There is a danger that what Colin Scott, in Review of Regulating Law: a clash of mentalities in Risk and Regulation, calls “meta-regulation” may tend to too much sound and fury, signifying not so much nothing, but that the right balance has yet to be achieved.
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