26 August 2010: Legal Think Tank Calls For Radical New Approach To ‘Reserved’ Legal Activities
The Legal Services Institute (LSI) has today published the first part of its comprehensive review of reserved legal activities, which aims to inform the Legal Services Board’s policy in this area.
The research paper concludes that there are few apparent historical policy reasons for originally defining these activities as reserved and that therefore the reserved activity structure appears to be built on “tenuous foundations”. This, it argues, means there is a lack of sound criteria on which the Legal Services Board (LSB) can base future recommendations for adding or removing activities from the list.
In the paper, the LSI (a policy think tank funded by The College of Law as part of its charitable foundation) traces the origins of the six reserved legal activities, as specified in the Legal Services Act 2007, and looks at the historical reasons behind why each of these was selected for reservation.
Reserved legal activities can only be carried out by appropriately authorised persons and comprise: the exercise of a right of audience; the conduct of litigation; reserved instrument activities; probate activities; notarial activities and the administration of oaths.
Prof Stephen Mayson, director of the LSI, said: “The origins of many of the reservations of legal activities are remarkably obscure. We consider that the often non-existent evidence of Parliamentary debate at the time the reservations were created or confirmed provides little basis for suggesting a common policy rationale that justifies their existence.
“Instead we tend to find after-the-event rationalisations and justifications for reservation. In our view, this does not provide a sound basis for the LSB to propose adding legal services to, or removing them from, the current list.
“Because reserved activities are a fundamental pillar of the Legal Services Act and its intended reforms, as well as its approach to the regulatory framework, we must express surprise and concern that the structure appears to be built on such tenuous foundations.”
The LSI argues that a general set of criteria needs to be drawn up on which the LSB can base future decisions on adding or removing reserved activities and that reservation must be shown to be in the public interest. Furthermore it believes that there should be a wide-ranging review of the regulation of legal activities as a whole as this was often bewildering for consumers.
Prof Mayson said: “In our view the difficulty of being able to identify a common rationale for the reserved activities, combined with evidence that at least some of them were intended for the protection of the legal profession, points to the need for further work to establish a contemporary basis for reservation.
“In addition, as things currently stand the regulation of legal activities is somewhat confusing and surprising for consumers. It would seem illogical to consider the creation or removal of reserved activities without reviewing the broader approach to the regulation of activities, individuals and entities.”
A second research paper will be published by the LSI later this year looking at how this might be achieved. The particular issues that the paper will explore are: on what public interest basis should any legal activity be regulated?; if there is a case for regulation, should this be through reservation or some other form of regulation and what should be the difference between regulated and reserved activities?; should regulation be of the activity, of the individual providing the service, or of the entity in which the individual operates?
The LSI was established by The College of Law in 2006. Its principal objectives include seeking a more efficient and competitive marketplace for legal services, contributing to policy formation and encouraging better-informed planning in legal services.
Its research paper ‘Reserved Legal Activities: History and Rationale’ is available on the LSI's website.
Download ‘Reserved Legal Activities: History and Rationale’
Further information from Lucy Wray, Press Officer, The College of Law on 01483 216072 (lucy.wray@lawcol.co.uk)
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