Although Sir Michael’s views indicate a continuity in the way the LSB will be going, there is no doubt that the Board now has a very different Chairman. He brings to the job a wholly sincere openness, a liking for reform and liberalisation, and outstanding administrative experience. An engineer by training and practice, he was Chief Executive of Cheshire County Council and of Kent County Council, the nation’s largest in terms of population, and he was the Chair and Chief Executive of the Planning Inspectorate. So yes, he has come across a lot of lawyers and has had to be aware of knotty legal issues from planning infrastructure to adoption, many of which involved counsel’s expert opinion. Along the way he has clearly developed a political sophistication. His report on the 2007 floods made 92 recommendations which were not only accepted in their entirety by the Government but also by the Opposition to whom he spoke as well. He could not stop it raining in 2014, but “we are much better organised when we have flooding and that has been a success, the emergency services and utility companies were in a much better position than they had been previously.”
His appointment to the LSB was quickly followed by the Lord Chancellor’s injunction that the LSB should prepare for its own demise. To those barristers who raised a premature cheer, Sir Michael has been here before. The Planning Inspectorate was preceded by the Infrastructure Planning Commission which was no sooner set up than the present government abolished it. However changes in the Planning Act 2008 “were such an improvement on the old planning system for national infrastructure, that they had to recreate the regime and that is exactly what they did and I wound up doing pretty much the same job I had been doing plus a range of additional planning responsibilties,” he told me.
So too with legal regulation. The Ministry of Justice “summit” of regulators on 21 July simply asked the participants to work towards a consensus for the future of regulation once some government finds room on the agenda to replace the Legal Services Act 2007.
It was the lack of consensus amongst the responses to the last consultation which had concerned the Ministry. Sir Michael sees no appetite for new legislation in the foreseeable future but he knows enough about politics to realise that if there were a serious event which highlighted faults in the legal system, politicians would rush in to provide a quick fix to sort it. It is in everyone’s interest therefore to agree now, in a well-reasoned way, on what the future ought to be. One obvious problem is the diametrically opposed views: Baroness Deech has said, “the small expert regulator is doing a better job” while a single regulator would simply start setting up sub-committees, which is precisely what Lord Neuberger would want them to do as he favours a single regulator with a number of discrete divisions. Sir Michael is “completely open-minded” about this, though aware that in the longer term we could come up with a better framework than we have at the moment. He is adamant that discussions must start as soon as possible.
Meanwhile, he said, the Government keenly wishes the LSB to “get on with deregulation as quickly as it can under the present framework”. By de-regulation one means liberalisation of the legal services market, opening it up to new ways of delivering services by people who may not necessarily have followed the traditional route of qualification. Consumer surveys show that about half the public do not access legal services and that many individuals and small firms are deterred from doing so because of cost. What is needed, he feels, are new structures, new products, and less expensive services. Fixed fees or annual retainers are possible answers here. Alternative business structures (ABSs) are definitely to be encouraged. There are some 300 of these now thanks in part to an active approach by the Solicitors’ Regulation Authority although barristers have yet to demonstrate so much enthusiasm for this. He wants the public to have online information about lawyers, including the organisation, its track records, and whether it has a history of poor performance or difficulties with regulators.
“This is very early days,” he conceded, but he wants to ensure “that the regulators release the information” to the public. One theme he refers to more than once is what he has called “the illogical split between reserved and unreserved legal activities”. The regulators are empowered to deal with the former but not the latter. An obvious example is the growth of paid McKenzie Friends, who have no insurance, regulation or means of redress for the consumer. He does not wish to do away with them, but neither is he in favour of full regulation of their activities, “you would probably kill it dead”.
He seeks a half-way house, “we should think about whether there are other ways”, a voluntary framework such as a trade association with some form of accreditation and indemnity insurance.
When I asked him about Sir Bill Jeffrey’s Report Sir Michael recalled the “very powerful” passages about the distinction between training for barristers and training for solicitor advocates. He is not though necessarily wedded to the existing and “very expensive” way in which barristers are currently trained. The process begun by the Legal Education and Training Review carries on. He cited for me the example of how he became a Chartered Engineer: he had to persuade the assessors not of what he had studied (in fact he got a First) but of what he could actually do. He demonstrated for example that he could design a load-bearing structure and that he knew how to construct it on site (which he had), and after a rigorous process aimed at deciding “whether Mike Pitt was above the line or below the line” he was allowed to call himself a Chartered Engineer, a kite mark recognised around the world.
He sees legal education in the same way. LSB guidance now says that education and training requirements should be set at the minimum level at which an individual is deemed competent for the activity or activities they are authorised to do; particular routes should not be prescribed; the key thing is outcomes, what the individual must know, understand and be able to do at the point of authorisation. All of this is part of the LSB’s general belief in competition and fluidity in the legal market. I put to him the problem that the BPTC currently produces several times more the number of successful candidates than there are pupillages. Since successive Chairmen of the Bar have denounced this imbalance and repeatedly called for a not-yet-forthcoming remedy, is there not an argument in capping numbers?
Although Sir Michael emphasised that the LSB does not in fact make any rule here, they have issued clear guidance to regulators that they should not impose limits on numbers entering the profession, either directly or indirectly, for example, by restricting places on vocational training courses to those who have a pupillage. This is entirely in accord with Sir Michael’s own belief that “the market should lead on this”. He knows that there are “highly qualified” young lawyers who started out wanting to go to the Bar but will not get there. They live in a world in which not everyone gets their first choice job. On the other hand, there is a “demand for legal services which is latent and not being supplied at the moment”. “Let the market play this out,” in other words, let the surplus of lawyers begin to find ways to satisfy the unmet demand for their services. Since we met in early September, well before the upcoming Court of Appeal decision on the matter, I did not ask about QASA. However he has said, “I do think that professionals should welcome, rather than be worried about, independent assurance of the quality of their work.”
At the end I inevitably came back to the question of the Legal Service Board’s relations with the Bar. The Board’s direct relationship of course is with the Bar Standards Board, and Sir Michael has spent a good deal of time talking to Baroness Deech as well as meeting her successor. “I don’t want anyone to think that the LSB is going to become a soft touch” but “I think we can make progress together. It is a big job to do and it is going to be done.” He will be 66 in February but seems very happy at the prospect of starting that big job. He looks forward to conversations “rather than just being critical of one another”.
Sir Michael Pitt is someone the Bar can talk to.