Representation: Approved Regulators

The LSA 2007 distinguishes between regulatory functions and representative func­tions of approved regulators.⁹² Representative functions refer to the representa­tion, or promotion, of the interests of persons regulated by the approved regulator.

⁸⁴ ibid, ss 32(1) and (2).

⁸⁵ ibid, s 34.

⁸⁶ ibid, ss 35-43.

⁸⁷ ibid, s 45.

⁸⁸ ibid, ss 62 and 63.

⁸⁹ ibid, s 64(d).

⁹⁰ ibid, s 73

⁹¹ ibid, s 74 and sch 10, pt 1.

⁹² ibid, ss 27(1) and (2)

A. Solicitors

i. The Law Society

The representative functions of the Law Society are carried out by the Law Society through the Council of the Law Society and its boards and committees. Its everyday business is managed by a Chief Executive supported by a large secretariat including Directors of Communications, of Legal Policy and of Governmental Relations. These posts are primarily answerable to the Chief Executive, but all such employees are ultimately accountable to the Council of the Law Society.

a. Council of the Law Society

The policy of the Law Society is approved by a Council. The Council currently consists of 105 members, including five laypersons. The solicitor members are elected by the membership and most represent constituencies throughout England and Wales, along with some members representing specialist groups. There is a code of conduct for council members, which refers to the core principles of selflessness, integrity, account­ability, openness, honesty, leadership, equality and diversity and respect.^[776] The code states that members are representatives of constituencies.^[777] Their role, therefore, is to protect the interests of constituents and keep them informed.

The Council has powers granted under the Law Society’s various charters. The original charter provided that the Council has responsibility for holding property, passing bye-laws and holding annual general meetings.^[778] Supplemental charters added further powers. For example, a supplemental charter granted in 1954 conferred power for the Society to enter alliance with other societies in the British Commonwealth whose objects were analogous to those of the Society.^[779]

The conduct of the Council is dictated by General Regulations^[780] which can only be amended, suspended or revoked by the Council by a vote of two-thirds of the mem­bers present.^[781] These provide that motions may be proposed by the chair, the Law Society boards, the Business and Oversight Board, the SRA Board and individual Council members.^[782] The Council presides over a number of boards and committees, from which it receives reports and recommendations for policy.

b. Law Society Boards

The Law Society Council has a number of boards which act as committees of Council. They are the Business and Oversight Board, the Legal Affairs and Policy Board, the Management Board, the Membership Board, the Regulatory Affairs Board and the Solicitors Regulation Authority Board.^[783] The President, Vice President and Deputy Vice President are ex officio members of the Law Society boards. The Boards carry out functions of the Council as defined in their terms of reference^[784] and can delegate these functions to sub-units or individuals. There are exceptions in relation to the SRA Board, which cannot delegate certain functions.^[785]

In relation to the SRA Board, the Council retains power of approval of the amount proposed to be charged for practising certificates and as contributions to the compen­sation fund.^[786] The General Regulations provide that the SRA Board shall comply with a direction by the Council, within the specified time, as to the exercise of any functions delegated to it if the Council considers it reasonably necessary in order to comply with, or avoid breaching, general rules or other legislative requirements imposed on the Society.^[787]

c.

The Law Society Council has a number of special committees. These are the Audit Committee, the Council Members’ Conduct Committee, the Council Membership Committee, the Equality and Diversity Committee, the Remuneration Committee and the Scrutiny and Performance Review Committee. Except in narrow areas, the special committees are advisory only and generally exercise no delegated powers.^[788]

The Council Members’ Conduct Committee has the role of keeping under review, promoting and giving guidance on the Code of Conduct for Council Members and proposing amendments to Council. It also investigates and reports to the Council on complaints made about the conduct of Council members and non-Council members of boards. In doing so, it sits in panels of three or five of its members, as decided by the chair of the Committee.^[789]

The Equality and Diversity Committee advises Council on diversity issues and monitoring progress towards the Society’s commitment to eliminating discrimination in all its activities as a regulator and representative body. When the Committee makes a recommendation, the body to which it is directed must consider it and give reasons if it does not fully accept it.^[790]

The Scrutiny and Performance Review Committee scrutinises decisions or action taken under delegated powers by the President or any of the Law Society boards and reports to the Council.^[791] Decisions of the SRA Board and the Business and Oversight Board cannot, however, be reviewed under these general powers.

B. Barristers

i. The General Council of the Bar

The representative body of barristers is the General Council of the Bar (known as the Bar Council). The Council was not set up by any statute, as was the Law Society, but its existence is recognised by statute.^[792] Like the Law Society, the Bar Council has an administration and secretariat, headed by a Director of Representation and Policy, supporting the representative side.

a. General Council of the Bar (Bar Council) and the Inns of Court

The Constitution of the Bar Council provides that it is established to be the governing body of the Bar.^[793] It is composed of a chair and officers, ex officio members such as the Attorney General, Solicitor General and Director of Public Prosecutions, and 102 ‘subscribers’, elected and co-opted members, of which 39 from the self-employed Bar is the largest group.

The Annual General Meeting or an Extraordinary General Meeting of the Bar Council considers resolutions put forward by subscribers.^[794] These meetings can only bind the executive or officers by a directive resolution.^[795] Such action has to meet vari­ous conditions, including receiving two-thirds of the votes of those present.^[796] The Council can delegate its power to committees, but the only committee identified by name is the General Management Committee.^[797] This has delegated powers to carry out many of the actions provided for in the Constitution, such as conduct a ballot of the Bar.^[798]

The functions of the General Management Committee are to implement general policy on all matters affecting the Bar, maintain the standards, honour and indepen­dence of the Bar, promote, preserve and improve the services and functions of the Bar and represent and act for the Bar generally, in its relations with others and in matters affecting the administration of justice.^[799]

The Council’s functions include formulating and implementing policies for regula­tion of all aspects of education and training for the Bar, considering all recommen­dations for changes to the Bar Training Regulations. However, the Constitution also provides for the creation of a Bar Standards Board to perform regulatory functions, under such constitution as the Bar Council shall from time to time decide.

b. The Inns of Court

The Bar’s Constitution is interesting in that it explicitly preserves the separate posi­tions of the Inns of Court while accommodating them collectively and individually.

The Inns of Court also have a right to ‘opt out’ of the Bar Council. The introduc­tion to the Constitution states that the Inns undertake to apply Bar Council policy, while acknowledging that they are not under any enforceable obligation in law to do so. This undertaking may be cancelled or amended on 12 months’ notice.^[802] The Constitution envisages that the reason for this would be that an Inn objects to a Bar Council policy. In that case the policy would not apply to it during the period of 12 months’ notice.^[803]

c. Council of the Inns of Court

The Council of the Inns of Court comprises the President, various ex officio members, including the chair and vice chair of the Bar Standards Board, and eight members of the Inns, two from each. The Council of the Inns of Court is the representative body of the Inns with power to bind them on any matter referred to them by the Bar Council or by an Inn.^[804] It formulates the policies of the Inns, secures the implementa­tion of Bar Council policy and appoints disciplinary tribunals.^[805] The responsibility of the Inns Council to accept Bar Council policy is tightly defined. It may refer back general polices referred to it and, if it states that the policy is likely to be detrimental to the Inns or their members, can only be required to accept the policy when approved by two-thirds of the membership of the Bar Council.^[806]

C. Others

The other approved regulators have similar arrangements to the main professions, although typically with a smaller management and employee base. For example, ILEX Professional Standards (IPS) regulates members of the Chartered Institute of Legal Executives (CILEx). It oversees the education, qualification and practice stan­dards of Chartered Legal Executive lawyers and other CILEx members.

IX.