Reservation nerds of the world unite

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The joy of six: should the current reserved activities be reviewed?

It is fair to say that I have banged on about the critical importance of reserved legal activities quite a lot in the relatively short time Legal Futures has been going (see, for example, ‘The lawyer and the plumber’ here). But I now feel fully vindicated by the 50-page report from the College of Law’s Legal Services Policy Institute on this very subject (see story and also my article on it in today’s Times (payment required)).

Happily its main author, Professor Stephen Mayson, shares my fascination with this subject and he demonstrates how the reserved activities are “one of the fundamental building blocks of the Legal Services Act 2007”. For example, they are pivotal to the definition of an “authorised person” (ie, a lawyer), to the designation of a regulator as an approved regulator, to the grant of licences to alternative business structures (ABSs) and to the appointment of a head of legal practice for an ABS.

Indeed, the report has been published the day after the LSB confirmed that it had received applications from the Institute of Legal Executives (ILEX) to become an approved regulator to award rights for ILEX members to conduct litigation, enjoy rights of audience (both in civil and family) and handle reserved probate work (the applications can be viewed here). Though legal executives currently have rights of audience, they are exercised under the supervision of a solicitor and this application would enable them to use the rights independently. Application for criminal litigation and advocacy rights, and in time conveyancing, will follow, while the Council for Licensed Conveyaners is also eyeing litigation and advocacy rights (having already got probate rights).

Professor Mayson’s paper is not Legal Services Board (LSB) research, but the LSB is supporting it as the issue of reserved activities has come at them perhaps faster than they were expecting, most notably in relation to will-writers. Nonetheless, do not expect anything to move too quickly on this. The LSB’s thinking is still at a very early stage and a lot of work will need to be done to lay out the criteria against which it will judge decisions on reservation (the subject of Professor Mayson’s second paper), before it applies those criteria to specific areas of work.

But what surprised me slightly when talking to LSB strategy director Crispin Passmore for the Times article is that he does not envisage going back a stage and asking whether there should be reservation at all, although perhaps the idea is too embedded in the system and the Act to make that practical. Whether it is be done by activity, individual or firm surely is on the table, however.

Nor does Mr Passmore expect that they will look afresh at the current six activities. In fairness, given that the work is at such an early stage, he said there is no detailed plan in place, and suggested I ask again in a few months’ time. In light of Professor Mayson’s findings of the very haphazard way in which reserved activities have grown up – often for reasons of professional protectionism – surely the criteria against which any new applications for reservation will be judged should be applied also to the existing six.

As I have written before, why is it just the preparation of papers on which to found or oppose a grant of probate or of letters of administration that is reserved, rather than the actual administration of the estate, where the likelihood of fraud must be so much greater?

Creating a modern regulatory framework for legal services is what the LSB is there to do, and I reckon we will learn a lot about it from how it approaches the reservation issue. It is just a shame for reservation nerds like myself and Professor Mayson that we will have to wait so long to see what it does.