In a recent case, a litigant in person became so upset during the hearing that the case had to be adjourned. She was upset because the judge refused to allow her McKenzie Friend to speak on her behalf, saying the litigant was well educated and quite capable of speaking for herself. McKenzie Friends (whether paid or not) do not have a right of audience, they are only supposed to provide moral and administrative support, but the court has an inherent discretion to allow them to speak for a litigant in exceptional circumstances. These were not met, said Mrs Justice Steyn in Ameyaw v McGoldrick [2020] EWHC 1741 (QB).
In other cases McKenzie Friends have been granted a right of audience, but not permitted to examine witnesses. Some McKenzie Friends charge fees for their service; and some even belong to an association which purports to regulate them. But the fact remains that McKenzie Friends are not per se qualified lawyers, and as such are not permitted to perform the reserved activities that, under the Legal Services Act 2007, only qualified lawyers can perform.
But as we all know there are different kinds of lawyers – barristers, solicitors, legal executives, notaries and so forth. And each kind of lawyer has its own regulator. There are currently 10 different regulators of legal services. And they in turn are supervised by the “uber-regulator” the Legal Services Board.
Reviewing regulation
All that may be due to change. A review by the Centre for Ethics & Law in the UCL Faculty of Laws led by honorary professor Stephen Mayson has recommended that all providers of legal services, whether legally qualified or not, should be registered and regulated by a single regulator, to be known as the Legal Services Regulation Authority (LSRA).
The two-year review was intended in part to explore the longer-term and related issues raised by the 2016 Competition and Markets Authority’s (CMA) ‘Legal services market study’ and its recommendations. The review aimed to “assist government in its reflection and assessment of the current regulatory framework”, with the aim of “maintaining the UK’s competitive position as a global leader for legal services and dispute resolution” following Brexit.
Mayson’s final report, Reforming Legal Services: regulating beyond the echo chambers (June 2020) has now been published. It points out in the preface that the current multi-regulator framework for the regulation of legal services in England & Wales is cumbersome and does not reflect the needs of “more than 90% of the population for whom it is not currently designed”.
This is well illustrated by the comment of one such customer, quoted in the report:
“So people who have noticed that something is wrong are often left to their own devices in this maelstrom to use their own initiative to attempt to navigate a course through a baffling regulatory landscape. To try to understand how what has happened can happen, to find out if what they have suffered is a regulatory offence and whether anybody is going to do anything about it. We soon become terriers chewing at the heels of regulators that prefer the easy life and to close the file.”
The solution, says the report, is to create a single regulator for all legal services, whoever they are and whatever their qualifications.
Recommendations
How would all this work in practice? The report recommends long term change, some of which will require legislation; but it also makes a number of short-term recommendations.
The over-arching recommendation is that “we should in future allow the registration and regulation of all providers of legal services, whether legally qualified or not. Registration and regulation should be the responsibility of a single, sector-wide, regulator to ensure a common, consistent and cost-effective approach, subject to a statutory duty to apply only the minimum necessary regulation. The nature of the regulation applied to registered providers would be founded on the public interest of furthering the rule of law and administration of justice. It would also focus on protecting consumers from harm or detriment caused by poor or inappropriate provision of legal services.”
Professional bodies could still manage entry into and the standards of their professions, which could be higher than the regulatory minimum. But others providing legal services not subject to specific professional reservation would still be able to register and be regulated according to those minimum standards. The report notes that “many would-be providers of legal services – whether in person or through technology – would say explicitly that they would very much welcome the opportunity to enter the regulated sector.”
The report accepts that such a reorganisation of the legal landscape will take time, and
therefore also recommends “a ‘parallel’ structure that would leave the currently regulated untouched, but bring ‘the unregulated’ (including those who provide online services) within a short term version of registration and access to ombudsman investigation and redress.”
Those currently unregulated services include specialist will-writers, mediation and conciliation services, online dispute resolution and lawtech services.
The service not the provider
The key change of approach seems to be to shift the focus of regulation onto the service provided rather than the provider of the service. Services which are legal in nature should be regulated, and accordingly, anyone who provides them should be registered as a provider of those services, regardless of their profession or status. The report points out that “there are circumstances in which the legal knowledge and practical experience of a will-writer, paralegal, social worker, employment adviser, planning consultant, and so on, can be much more accurate and current than that of a qualified lawyer.”
A good example of where the change of focus might work is in relation to McKenzie Friends.
Professor Mayson believes “the true notion of a McKenzie Friend would not support the existence of what are often now referred to as ‘paid’ or ‘professional’ McKenzie Friends.” (There is, of course, no such recognised “profession”.) But whatever they should properly be called, Professor Mayson is “not opposed to them being admitted in some form into the regulated exercise of rights of audience or the conduct of litigation. What must follow, though, is that these practitioners, as regulated providers of those services, should be required to hold the same specialist accreditation as all other providers.”
They should therefore be subject to the registration scheme. But “whether they should be given permission to address a court on behalf of a litigant should remain subject to judicial discretion and oversight.”
This proposal, says Professor Mayson, should “not be taken as advocating a ‘free pass’ or ‘dumbing down’. Rather, it assumes equivalence as between all those individuals who choose to practise in the authorised areas on the basis of the authorisation and accreditation requirements set by the regulator.”
“True” McKenzie Friends, who are not paid, should continue to operate on the original basis as providers of support and assistance to a litigant in person, subject to judicial discretion, the report says. They should not be able to exercise any function for which regulatory authorisation is required, such as addressing the court or conducting litigation, unless registered to do so.
What next?
The report has been submitted to the Lord Chancellor, but as John Hyde pointed out in the Law Society Gazette, “it remains to be seen what appetite there is in Whitehall for overhauling legal services regulation.” He noted that “Justice minister Alex Chalk MP confirmed in a written parliamentary answer last month that the government had ‘no plans’ to review the Legal Services Act 2007, which created the current framework of regulators.”
Moreover, although the report notes that “recent events have accelerated the need for change”—citing Covid-19, the recent boost to legal tech and online services, and Brexit—these are also the very factors that are likely to impede any wholesale or even piecemeal remapping the regulatory jigsaw. Watch this space, but don’t expect any sudden movement.
Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project.
