Is Lord Neuberger right to suggest that the UK “has no constitution”?

Public Law for Everyone

Lord Neuberger, the President of the UK Supreme Court, gave an erudite and thoughtful lecture on the subject of “The British and Europe” last night. Delivering the inaugural Freshfields Annual Law Lecture in the Cambridge Faculty of Law, Neuberger sought to situate the present debate about Britain’s relationship with Europe in its historical, political and legal context. I will make no attempt to summarize what he said; the full text of the lecture can be accessed via the Supreme Court’s website. Suffice to say that the general thrust of the argument was that British attitudes to matters European are attributable to a form of exceptionalism that may be built upon myth as much as reality. For instance, said Neuberger, “[T]he idea that English law developed as a self-contained system is quite misconceived.” It followed, he suggested, that concerns about European law constituting an alien influence placing the pristine integrity…

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So Directive 2005/36 is now amended by the new modernising Directive

Updates are overdue, the new Directive amends 2005/36 in substantive ways

It came into force on 17 January 2014

 

Activity-based authorisation of legal practice in Engand and Wales – thoughts on an LSB Seminar

So I attended the Legal Services Board (LSB) Seminar at the University of Warwick on Activity-based Authorisation (18 April 2012) where Professor Julian Webb, Professor of Legal Education at Warwick School of Law (and LETR lead), and Crispin Passmore, Strategy Director at LSB joined by Samantha Barrass, Executive Director Education and Training, Supervision, Risk and International Affairs, Solicitors Regulation Authority and Professor Richard Moorhead, Deputy Head of School, Cardiff Law School gave a series of short presentations, followed by discussion and questions. The LSB had published Education and Training: Its Role in Regulation?  in advance of the seminar series.

Liberalisation of the legal services market in England and Wales does not mean that consumers of such services do not still want good quality legal advice/services that is not too expensive and which represents good value for money. This means that some method of ensuring the competence of legal services providers is still required to avoid excessive risk to consumers.  This will increase the cost of the service. Legal education and training are only one of the possible tools available to regulators to ensure competence. Others include codes of business conduct etc. If legal activities are to be cut loose from being reserved to members of the legal professions and instead be deliverable by others,  should some form of standards be imposed, and if so what should they be (uniform across the whole spectrum or variable according to regulator) and imposed by whom, how?(Webb/Passmore)

If the service is not regulated or reserved the highly competent, lengthily trained lawyer will be competing with others who may or may not have the competence, but they will lack the professional reputational benefits and ethical restraints of belonging to a professional body that is (?) well regarded. There is a risk that such non-lawyer competitors may not appreciate the forest as they decide which tree to cut down. There may not be the red light – alarm bells going off – that signal mechanism that helps lawyers protect consumers from the unexpected sidewinds of the law.

Of course in England and Wales the legal services market is already very open when compared say to the US market or some of the continental European markets where the practice of law is reserved to lawyers alone. In England and Wales those that consume the services are accustomed to relying on the professional titles (solicitor / barrister /licensed conveyancer etc ) as a guarantee of professional competence. If particular aspects of legal work (legal activities)  (See Legal Services Act 2007 S.12(3)) are to be reserved and licensed to non-lawyers and lawyers alike what standards if any should be applied? This issue was debated but not answered in the seminar.

Why should anything be reserved?

One question that can be  raised is why should anything be reserved to ‘qualified suppliers’? In the Scandinavian countries very little is reserved to the official lawyers except their title. (See further Finland, Sweden) Why should conveyancying for example be reserved? At the seminar an intervener opined that conveyancing was very much carried out by non-lawyers under supervision,and, of course, by licensed conveyancers..

What basis is there for regulating non member individuals who are not part of a regulated entity?

Another issue raised by me, was ‘by what right would existing frontline regulators regulate individuals who were not already members of their professions or part of a regulated entity?’

Central or variable standards?

Assuming that this issue is easily resolvable (but is it?) who should decide on the standards? Surely no-one would want innovation stifled by strict centralised regulations? If not then could each regulator set its own standards? This would unleash the regulatory competition that the Legal Services 2007 Act seems designed to promote, but at potential risk to consumers. Caveat emptor. (Regulatory objective of the LSA 2007, See LSB summary) Whatever standards are in place should be related to the risks that exist from that particular activity and should, in my view, be minimum standards so as to avoid both overpricing of the services and allowing for innovative methods of reaching an outcome to emerge.

Outcome based regulation

If the regulation is outcome based (as is the current preferred mode of regulation) then simply stated outcomes could be set, and individuals and entities (be they lawyers or not) would either individually have to show how they would met the required outcomes or if in an entity, then that entity would have to show how it would ensure the outcome. Again there is a risk of variable outcomes in such an approach, but innovation would not be stifled.

Specialisation

The discussion at one point turned to specialisation (Moorhead), considered by many to be a marker for quality. Does this need to be ‘regulated’ by competence assessment? If so, the same issues of by whom  and how arises. There are specialist professions (e.g. licensed conveyancers) without the generalist knowledge but with entry competence tests in their field of expertise and generalist solicitors who are de facto specialist or who have joined one of the panels of the Law Society for example. In non reserved areas non lawyers can build up quite an expertise that covers some aspects of legal work which are are not reserved – so a surveyor who mediates in construction disputes for example.

European dimensions

Specialisation:

Of course in the EU  Member States  matters are treated differently in each country. In the Netherlands, for example, lawyers have themselves created around 25 specialist associations, and some of them police entrants rigorously and ensure that they  maintain the high standards that help their business. The Bar does nor legislature have a hand in this – it is a matter of self-regulation by market forces. In Germany the Fachanwalt (specialist lawyer) accounts for about 20% of lawyers and there are strict regulations about experience and training that are applied. (Para 3 of the Fachanwaltsordnung). In a system, as in England and Wales, that admits non lawyers to legal practice, perhaps a market forces hands-off approach would appeal. Consumers can then choose a panel (or not) solicitor or some one else entirely. This is what currently happens in most cases. How to find appropriate advice is a problem for consumers, but an EU funded CCBE project on finding lawyers may provide some help.

Continuing Training

It was clear that post-entry maintaining of competence is under consideration; again at the European level there are a range of models to view and assess.

Entry Barriers

Competence at entry for all is not a model that works in a system where anyone can provide the service as they need not belong to a particular profession. If a series of legal activities are to be reserved to those licensed and the questions of the standards to be applied (linked to risk and outcome based)  and who will apply the standards are sorted out, then they are still other considerations to take into account. The restraint imposed must not breach competition law and the regime must be open to EEA nationals who must have their pre-existing qualifications recognised and taken into account. In creating new entry barriers European scrutiny on these two accounts is certain.

See related post on  Activity based regulation – EU perspectives on partial access to reserved activities

Lawyer Watch

There’s an eloquent critique of OFR from a senior practitioner (Nicky Richmond of Brechers) on the Lawyer’s webpage. I’m in the agnostic camp (thank goodness) on OFR.  I see its benefits and its risks.  And I recognise in Nicky Richmond’s  piece the concerns the kinds of things I would be complaining about if it was being done in academia (analogous things have in fact been going on for some time).  For all that I sympathise, isn’t there a schizophrenia in the reaction too?  We want self regulation, but we want someone else to do it, we want someone to tell us what to do, but when they do we don’t like it?  We don’t want one size fits all, but nor do we want complexity.  It’s a conundrum which OFR seeks to ‘solve’ by making firms more responsible for their own approach and thus making the rules more flexible…

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Activity based regulation – EU perspectives on partial access to reserved activities

Regulating legal services in England and Wales

The regulation of legal services is in England and Wales is in the process of major change. The Legal Services Board is considering whether certain ‘legal’ services (notably will-writing, estate administration and probate activities) should be reserved to persons with particular qualifications (or not). There are also LSB reviews ongoing regarding, for example, the regulation of immigration advice and services.  The current review of legal education in England and Wales, being undertaken by the LETR, will be assessing how the current regime of legal education in England and Wales is suited to the new post-Legal Services Act 2007 world, which will be allowing new modes of ownership of legal service providers, and is scheduled to recommend changes to meet the challenges at the end of 2012.

The LSB has oversight over eight types of legal actor in England and Wales that are authorised to practice the “reserved activities” in the legal sphere. Will there be consolidation or further fragmentation of the legal professions? What impact might there be on legal education?

The European Dimension

Naturally there is a European dimension to all of this ferment. For one thing many European trained legal actors (members of more than 26 professions) can freely practice law in the UK, and for another the authorised regulators of legal services in the UK (Competent Authorities in EU-speak) have an obligation to admit such professionals to practice, and, in some cases, admit them to their particular legal profession, and, if not admit them immediately, then assess their qualifications and indicate missing elements of knowledge of competence that must be made up before joining the relevant legal profession.

Moreover the European Commission has recently published a review of the economic impact of reserved activities (in the legal and other sectors) and legal services directives themselves are currently under evaluation.

Recognising competence to perform legal activities

This assessment of continental legal professionals by UK regulators is mandated by the Lisbon Treaty single market provisions and, in particular, for our current concern, by Directive 2005/36/EC. This Directive, which consolidated 15 earlier Directives, is now itself subject to revision. When Directive 2005/36/EC itself was initially proposed, it included a provision allowing for access to practice part of the professional activities of a profession by incoming migrants, without joining the profession itself. This did not survive the negotiating process and was dropped. The new proposal revives the idea of partial access. This potentially means that UK legal regulators may have to give access to reserved legal sector activities to persons not belonging to a UK legal profession.

Partial Access to reserved activities

The new provisions on partial access are more carefully drafted than their predecessors. They follow the lead of the CJEU in the Colegio case (C-330/03 Colegio de Ingenieros de Caminos, Canales y Puertos).

A revised Article 1 indicates the migrants will have ‘partial access to a regulated profession’ and a new Article 4(1) indicates that they will be able to gain access to ‘part of the same profession’, but the new Article 4f is more accurate in indicating that ‘The competent authority of the host Member State shall grant partial access to a professional activity in its territory…’ (my emphasis) if certain conditions are fulfilled. So here we have the separation of the host State profession from the host State professional activity. The activity in question must be lawful in the home State and should be able to be ‘objectively be separated from other activities falling under the regulated profession in the host Member State’. If the activity is autonomously exercised in the home State that would be sufficient to fulfil this criterion. Partial access by a migrant can be rejected if there are sound proportionate public interest reasons to do so.

Partial access is only to be granted where:

‘differences between the professional activity legally exercised in the home Member State and the regulated profession in the host Member State as such are so large that in reality the application of compensatory measures would amount to requiring the applicant to complete the full programme of education and training required in the host Member State to have access to the full regulated profession in the host Member State’.

Professional Identity

Persons permitted to access a reserved activity by these new provisions will normally do so under their home State professional title. So at one level we could say, so what, this is nothing new, already EU lawyers can practice law in the UK under their home State professional titles, but, one difference is that they are currently regulated by the UK professional bodies with whom they must register when they establish. [By virtue of Article 5 of Directive 2005/36/EC lawyers providing services will do so though operation of the provision of Directive 77/249/EEC and Directive 2005/36/EC will not apply.]

Lawyers, or others, seeking partial access to aspects of legal practice on a more permanent basis will be able to use the establishment provisions of the revised Directive should the proposal become EU law. The Member States could argue that regulation would be required by the host State regulator, but, as the new entrants would not necessarily be members of the host State profession so which professional rules and obligations woud apply to them, and how? There will clearly be pressure to atomise professional rules so that individual reserved activities can be effectively autonomously regulated. This disaggregation of professional activities could weaken professional identity. If an EU citizen can use EU law to access a reserved activity in another Member State without joining a host State profession then why logically should a UK national not be able to do so?

See further

See Lonbay, J, ’Assessing the European Market for Legal Services: Developments in the Free Movement of Lawyers in the European Union’, Fordham International Law Journal 1629.

Details of proposed amendments to Directive 2005/36/EC regarding “partial access” to reserved activities

Details of proposed amendments to Directive 2005/36/EC regarding “partial access”

Article 1 of the Directive will have a second paragraph added:

This Directive also establishes rules concerning partial access to a regulated profession and access to and recognition of remunerated traineeships pursued in another Member State. (My emphasis)

Article 4(1) is replaced as follows:

The recognition of professional qualifications by the host Member State shall allow the beneficiary to gain access in that Member State to the same profession or, in the cases referred to in Article 4f, to part of the same profession, as that for which he is qualified in the home Member State and to pursue it in the host Member State under the same conditions as its nationals.” (My emphasis)

Article 4f is the main new provision on partial access. It provides:

Article 4f

Partial access

1. The competent authority of the host Member State shall grant partial access to a professional activity in its territory provided that the following conditions are fulfilled:

(a) differences between the professional activity legally exercised in the home Member State and the regulated profession in the host Member State as such are so large that in reality the application of compensatory measures would amount to requiring the applicant to complete the full programme of education and training required in the host Member State to have access to the full regulated profession in the host Member State;

(b) the professional activity can objectively be separated from other activities falling under the regulated profession in the host Member State.

For the purposes of point (b), an activity shall be deemed to be separable if it is exercised as an autonomous activity in the home Member State.

2. Partial access may be rejected if such rejection is justified by an overriding reason of general interest, such as public health, it would secure the attainment of the objective pursued and it would not go beyond what is strictly necessary.

3. Applications for establishment in the host Member State shall be examined in accordance with Chapters I and IV of Title III in case of establishment in the host Member State.

4. Applications for provision of temporary services in the host Member State concerning professional activities having public health and safety implications shall be examined in accordance with Title II.

5. By derogation from the sixth subparagraph of Article 7(4) and Article 52(1), the professional activity shall be exercised under the professional title of the home Member State once partial access has been granted.

The Morgenbesser case

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