Mayson: surprised to have recommended expanding the list
Conveyancing, immigration advice, preparing wills and powers of attorney, and estate administration should all become reserved legal activities, a leading thinktank has recommended.
However, the report from the College of Law’s Legal Services Institute – headed by Professor Stephen Mayson – says this work should not be the sole preserve of the legally qualified. It should instead by conferred separately by accreditation and, for lawyers, through an endorsement on their practising certificates.
The report follows up initial research that found few historical policy reasons for the six areas that are currently reserved (right of audience, the conduct of litigation, reserved instrument activities, some probate activities, notarial activities and the administration of oaths). It will feed into the Legal Services Board’s work on reserved activities.
Professor Stephen Mayson, who co-authored the paper with policy assistant Olivia Marley, said: “I did not expect our review to lead us to some of our conclusions. If anything, I suspected that we would propose that there should be fewer reserved activities.”
The paper examines the public interest rationale for the reservation and regulation of legal activities, and says the public interest can justify reservation of activity to authorised persons where:
1) It is required to secure a public good (as a matter of principle and without further evidence, such as rights of audience) or protect the consumer where there is sufficient evidence to support it (such as will-writing) – or both; and
2) Either other responses are less effective, or reservation provides addition protection that supports (1).
It says the public good justifies the continuing reservation of rights of audience, right to conduct litigation, court-related reserved instrument activities, and notarial activities.
While the administration of oaths has public good benefits, it suggests that only those entitled to exercise rights of audience or conduct litigation should be able to administer oaths and should be properly trained in it. This is because the reliability of the oath is attached to the commissioner for oaths who administered it.
“We are not convinced that the authorisation should be extended (as now) to essentially all authorised persons. The training to discharge this reserved function seems to be superficial (at best), and the activity is often carried out with little regard for its solemnity and by those who often take the fee as a personal reward (even where they are employed by a firm).”
The report argues that state-backed land registration renders property-related reserved instrument activities unnecessary (except in relation to unregistered land). However, it says a wider reservation of conveyancing services would achieve “the public good in the effective and efficient operation of the housing market, in confidence in land registration, and in some protection to consumers engaged in transactions involving unregistered land”.
The public good in ensuring that only those who are legitimately entitled to settle in the UK do so justifies reserving immigration advice and services.
While the researchers found “no reason based on public good” for the current narrow reservation of preparing probate papers, they say there are strong consumer protection arguments for reserving the preparation of a will or other testamentary instrument, and of powers of attorney, as well as estate administration.
However, they reject reserving insolvency practice or claims management services.
Legal Services Board chief executive Chris Kenny said Professor Mayson’s first report “made a big contribution to the debate and this one will have a big impact on our final decision”.
The report has been issued as an interim discussion paper so as to gather responses and feedback to ensure that the institute has properly understood the issues and considered all the implications.
There aren’t too many legal-related things that get me riled up… calls for increased reservation of legal activities is one (I’m a non-practising private client solicitor, and I like to think I can appreciate arguments on both sides).
No doubt that lack of regulation of will-writing has led to some instances of shoddy wills, and in many cases it is a tragedy for the families involved – I wouldn’t dream of suggesting otherwise.
But I do not believe the answer is to make will-writing a reserved activity. To do so would take away the lay person’s right to draft their own will. To me, it smacks of lawyers who – at least a little bit, I suspect – believe that law exists for lawyers. Instead of making will-writing a reserved activity I would like to see raised awareness about lack of regulation, so that the public can make informed decisions.
To suggest that LPAs should be a reserved activity seems even more far-fetched. No doubt that the system is occasionally abused, but I strongly suspect (though I admit I don’t know the figures) that the overwhelming majority of lay-applicants register LPAs with no problems. The forms, after all, are now relatively simple and the OPG is on hand to help, even if it might be bursting at the seams.
Again, I appreciate that LPAs is a sensitive area because applicants are often vulnerable people. Like will-writing, there will be tragic instances of abuse, but does that mean only lawyers should be able to draft an LPA? It seems to punish the thousands of healthy adults who are happy to undertake the application process themselves, without professional assistance.
As for probate, 98% of people who conduct the process themselves do not regret it (so says a recent survey). Lay people would I presume be unable to conduct the process at all if broad-brush reservation is applied to estate administration.
In summary: grrrrr…….!!
Thanks for a great article. Informative as ever.