Regulatory law: a growing area

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Legal practitioners from different backgrounds share their experiences of the developing regulatory area with Melissa Countinho

Today there appears to be more regulation than ever before, despite the aims of reducing unnecessary bureaucracy. 


It seems that even if legislative restrictions appear to be on the wane, greater accountability has simultaneously been deemed necessary to promote best practice and protect the public at large. Certainly, the number of professionals, activities, products and entities being regulated shows no sign of shrinkage, but with this move comes the opportunity of new legal work to undertake.

As someone who started her career in tax chambers and who now works exclusively in the regulatory field of medical products and healthcare professionals, I have cast around to consider whether this quirk of fate had anything to do with my particular background, or skills, or was down to a changing landscape. I have come to the conclusion that it is largely the latter. Regulation now exists in areas where it never did before, and while on the whole this is considered positive, there is also a fear that the pendulum may swing too far the other way.

Sharing stories

I spoke to a number of practitioners from different backgrounds to find out how their introduction to regulatory work commenced and what they would recommend to the barrister interested in breaking into this area of law. They have shared their stories and their views on what the future of regulation holds. A surprising feature has been the lack of unifying theme in either their career history, future aspirations or particular skill set. What they do share is a willingness to bring their experience and knowledge to a growing area, where there is some concern as to the direction of travel.

It may come as a surprise to some that certain regulatory matters, like health and safety law, are dealt with by the criminal courts but other areas, like misconduct within certain professions, are simply dealt with by committees with rather less formality. The growth of tribunals suggests a desire to ensure that there is more of a level playing field between areas that have little to distinguish them, and with this has come the refinement of procedural requirements and powers. That said, the majority of panels now have legal input, either being chaired by lawyers, or having expert legal advice provided by legal assessors, and/or hearing submissions from lawyers. This is not the case across the board, and there is no uniformity as to the rules or the practices that apply across the different areas.

This variation is accepted by a number of lawyers who on entering the regulatory arena find that there is a plethora of related work where their new found expertise can be directed, even if they have to keep in mind the separate terms and rules which each uses to operate. Whether this means specialising in a particular area (such as healthcare professionals), or a particular role (legal assessors), or has become an adjunct to their primary work (by using their familiarity of core principles/a particular topic in a complementary arena), there is vital work for those with relevant experience.

Conclusion

The journey that each of the barristers below have taken differ vastly. Their introductions to regulatory work have come about in a variety of ways: via applications amid open competition, chance meetings, canny clerks or colleagues exhortations. All have had to be willing to research new material but have done this at different stages of their career. Whether regulatory work is their sole, predominant or occasional foray, all recognise the likely growth in this area, simply as a matter of custom and practice. Whether regulation will extend or replace traditional court based work cannot be predicted but it is likely that new areas will have oversight where none existed before.

Given that regulation has the intended purpose of improving conduct and standards it is difficult to begrudge its growth. However, the level of regulation, and whether it is intended to prescribe or proscribe conduct, or simply to incentivise improvements, or act as an alternative to tougher laws and sanctions, are questions that need to be asked but are without clear answers. The enforcement or self-regulation of rules and their efficacy, like conventional legislation, remains an unknown until the results are reviewed. Does increased regulation improve efficiency and address existing ills, or is it simply an increase in efforts to provide a mechanism for tackling real or perceived problems? Will it substitute traditional law and/or codify best practices? While proportionality has become a popular watchword, regulatory work is set to remain an area not simply of growth but of controversy; fortunately, this feature has never prevented intrepid lawyers from practising in arenas where it is present.

My thanks go to the following for providing a window into their working lives:

Mary O’Rourke QC

Mary began her introduction into regulatory law while a junior member of chambers. She represented doctors at Medical Services Committee (MSC) appeals (equivalent to First Tier Tribunal Appeals). These were considered to be one day simple cases for inexperienced barristers to ‘cut their teeth on’. In the 1980s, a doctor having three MSC referrals found themselves before the Professional Conduct Committee of the General Medical Council (GMC). When one of her clients hit his third referral and wanted her to represent him before the GMC, rather than someone more senior (despite being told that this would be a first for her), he was adamant that he felt listened to by her, which was important to him (he may have had a point as she represented him and he did remain on the register). That was in 1985; she has never looked back.

Having started in her first set covering employment law in pupillage (as that was a specialism of her pupil supervisor), Mary had not set out with a view about regulatory work. However, as a junior tenant she found herself working with Adrian Whitfield QC at the time he took Silk while working on a medical negligence case. Through working with him she started to be instructed by Medical Defence Organisation solicitors on clinical/medical negligence cases and then judicial reviews; from that it was a small step into medical disciplinary and medical regulatory work.

Mary recognises that regulatory work is belatedly being recognised as a specialism in its own right. Both Chambers & Partners and the Legal 500 started using this category from about 2006-2007, and the Bar Mutual Indemnity Fund began recognising it for indemnity/insurance purposes around the same time. She believes that the introduction of the Human Rights Act 1998 (in October 2000) and reliance on Art 6 of the European Convention on Human Rights is largely responsible for regulatory law being identified as a discrete area, given that it then involved, as it does now, arguments in the Administrative Court and public law sphere rather than just being seen as a fact-based area for argument.

With regard to the particular skills that enable one to shine at regulatory work, Mary’s view is that good cross-examination skills are essential, as is an understanding of the professional field in which the client works, including the difficulties faced by the professional ‘at the coalface’. It is the case that given the number of lay panellists on many regulatory tribunals, it is important to be able to communicate and explain difficult legal concepts so that they can be understood. She is in no doubt that regulatory law will grow as an area. Not only is it easy to access basic information about regulatory bodies via the internet, it is also simple to find out how to complain (via their respective websites) and complaints can be submitted rapidly and online, promoting further work in this area.

While she is hopeful that regulatory law will play a significant role in her practice going forward given that it is her major area of expertise since taking Silk, she is also philosophical. ‘I am at the back end of my career (33 years since starting pupillage), and so I hope to be retired and living by the seaside in the west of Ireland when the GMC undertakes its next major Rules changes.’

Douglas Hogg QC, Lord Hailsham

Lord Hailsham’s introduction to regulatory law was much more recent but equally unplanned. He had thought that when he finished at the House of Commons in 2010 he would resume the criminal practice he had previously immersed himself in. It was only on seeing an advertisement in the legal press that he considered applying for an appointment with a regulator. He duly applied, was successful and that appointment in turn led to other opportunities with other regulatory panels becoming possible.

He regarded regulatory work as complementary to his criminal practice in that both are largely statute-based and in an arena where particular factual scenarios need to be established. In terms of why regulatory law has often missed out on discrete classification historically, he believes that many have simply failed to see either the opportunities that it presents, or recognise this area as being a free-standing discipline, which it undoubtedly is.

He felt that there were a number of attributes needed to be a successful practitioner in this area of the law. To be a legal assessor (a vital role held by a qualified and experienced lawyer to ensure that panels act within the law, consider all legally relevant matters while disregarding the legally irrelevant, and explain their reasoning clearly in written determinations), one needs the ability to work sensitively with panellists who are fact finders. There is also a requirement to be ready and to assist registrants who are often unrepresented or uninformed and understandably nervous given that their ability to practice in their chosen profession may be at stake.

He had advice for others who are considering breaking into regulatory law from other specialisms: ‘As to legal assessing – be patient. Many members of the Bar are looking to diversify into this field from publicly funded work. It can be quite difficult to get into this work, in terms of getting on to a panel for the first time; however, once there, opportunities should follow…This is where Independent Legal Assessors [an entity that caters for both legal assessors and the professional regulatory bodies that appoint them] serves me well, as it knows this specialised field and has the relevant contacts. Being a member of a team of like minded professionals has huge benefits; I am lucky enough to be able to reap many of these.’

He is confident that the regulatory law arena will grow, given the increasing requirement from the public for there to be greater transparency and accountability. He intends that this area of law will play a prominent role in his practice in the future as he combines working with regulatory panels with his active membership of the House of Lords.

John Bromley-Davenport QC

John generously credits his clerk with getting him involved in regulatory law: ‘My senior clerk, with great perspicuity, foresaw that the problems which were beginning to confront the publicly funded bar due to government cuts in all sectors needed some urgent solutions…some members of Chambers were already doing regulatory work and he realised that this was a fertile seam of business which could be developed. Over a period of several years he built up a very strong connection with a number of regulators and obtained significant quantities of work for members of Chambers who were affected by the cuts. In due course I began to receive regular instructions as a legal assessor.’

He sees that there are parallels with the criminal work that had been his primary focus during 40 years of practice at the Bar. These are:

  • An adversarial system.
  • The regulator brings the charges and has to prove them (albeit to the civil, rather than the criminal, standard).
  • Rules of evidence, questions of fairness and human rights all play a part in the proceedings, just as they do in crime.
  • The process involves the calling of evidence, cross-examination, submissions of law and fact and a decision making process, as in a criminal court.
  • As a legal assessor, one is acting independently, but, when a registrant is unrepresented, one has to help them and this can involve assisting in all the ways set out in the previous bullet point.

As for specialist knowledge, he considers that this is necessary but was something that he was prepared to acquire for the purpose of taking up new roles. Others would need to be similarly willing but this should not put people off who are talented lawyers already.

He was one of a brave minority to acknowledge that there can be some hostility to this area of work, due to the erroneous idea, held in some quarters, that this is not ‘proper legal work’. However, open-minded lawyers will find that the same skills that are used in other areas of law are equally important here including: clarity of thought, analytical ability, a proficiency in explaining and developing complex issues of fact and law, while all the time remaining independent, even when one is having to put forward the case of an unrepresented registrant. Those with good interpersonal skills are in demand as the capacity to get on with people from all walks of life is required.

With increasing importance being given to proper control and accountability in all areas of work and professional life, he saw no reason why regulatory law will not continue for the foreseeable future. John is both a member of Independent Legal Assessors and 1 Gray’s Inn Square which he feels complement each other. His top tip to those interested in breaking into this area is to talk to those already in the know.

Stephen Hockman QC

Stephen makes his involvement into regulatory law appear to be a matter of fate or chance. At the tender age of five years’ Call he found himself dealing with a plea in mitigation in Canterbury Crown Court. He recalls how a solicitor for Kent County Council approached him and asked him if he would cover a modest brief immediately, given that his instructed counsel had been delayed on a train. That one talented performance lead to a steady flow of local authority work, and in turn, to a specialism in environmental law, as well as most other forms of regulatory law.

Currently holding an environmental practice which encompasses public, civil and criminal law, he sees this work as an extension of the areas of practice in which he has always functioned. He makes the point that regulatory law can give rise to cases both in the criminal and civil courts, but nonetheless is increasingly recognised as a subject of specialism in itself. That said, competence in regulatory work in his view has no particular skill-set over and above that which all able barristers require.

His opinion was also that regulation does appear to be on the increase, not least because of the complexity of modern social problems, which necessitates greater community control. He considered that if barristers focus on conducting as skilfully as possible the work that they are given, they may be fortunate to be offered complementary areas of work, which includes regulatory law. This appears a better approach than artificially trying to ‘break into’ new areas of law, he felt.

Stephen was adamant about what does need to happen if one is offered regulatory work though, with thoroughly researching the relevant law being key. His advice is: ‘Remember that there are always three people you should try and impress in court: namely your client, the judge (or equivalent), and your opponent’s instructing solicitor.’

Malcolm Fortune

Malcolm was fortunate to live close to another barrister in a fashionable London suburb 25 years ago and was asked by said neighbour, Hugh Carlisle QC, if he was interested in broadening his main criminal practice to include some prosecution work for the Health and Safety Executive (HSE). Up until that time, Malcolm had held a heavy criminal prosecuting practice, based largely at the Central Criminal Court.

He had been warned that it would mark a departure from his normal work and found this to be the case. His first brief for the HSE was a five day ‘old style committal’ in respect of the British Gas explosion in Royston in Hertfordshire, which had occurred in March 1991. Although spending a week at Letchworth Magistrates’ Court was unusual for him, further briefs from the HSE followed, which led to his greater exposure in the field and eventually to advising national and international organisations.

Even though the term ‘regulatory law’ has begun to be used when broad definitions are discussed or itemised on criminal, civil, commercial, and family forms, he is not keen on it. For him, the term ‘regulatory’ is too broad and needs to be more closely delineated if it is to mean anything. Different types of practice may have little in common with each other and regulatory law is a convenient hook that encompasses vastly different areas of regulation and legislation.

He shares the view that there are particular skills that enable one to shine at regulatory work: the ability to draft concise opening notes with knowledge of both the legal jargon and the practices it describes within specific areas based upon a sound knowledge of the subject under consideration and of course a good grasp of the facts in a complex and extremely varied field of work. He cited the example of producing ‘Friskies’, which reference a leading HSE case that sets out the importance and parameters of aggravating and mitigating features within a case, that have floored even the brightest individuals who simply were not in the know.

Malcolm points out that the case law and sentencing guidelines or equivalent in a specialist area are minimum mandatory knowledge. They are essential to being able to negotiate possible pleas proficiently and also to being adept at knowing when to be open or fight such cases. Practising in specialist areas means that you need to know your specialism well. Without this knowledge, it would be difficult to be clear about nuances between cases or for example to inform the court of the relevant sentencing guidelines in the event of a conviction.

Unlike many law people who decry the increase in health and safety regulation, Malcolm, with his experience in health and safety law, wants to see a greater emphasis on health and safety in the work place. There are horrific and preventable accidents that happen every year. New legislation takes time to embed culturally but he sees that there will be a growth in this area as mechanisms to address the fatalities caused by poor health and safety practices become more commonly used.

Contributor Melissa Coutinho is a barrister with the Government Legal Service

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Melissa Coutinho

Melissa Coutinho is a lawyer for the Government Legal Service An accredited arbitrator, qualified PPM practitioner and a magistrate, she also writes and lectures on medical products and their regulation.