In the public interest

CILEX chair Professor Chris Bones looks at CILEX’s role as a chartered body and approved regulator, focusing on recent achievements and future priorities

 

As a chartered institute, CILEX is bound through its Royal Charter to act in the public interest. The members who founded our organisation and those who stewarded us through the process to become a chartered body understood that the best way to build the standing and reputation of a new profession was to ensure that it always operated in the public interest.

Demonstrating the public interest outcomes of our activities as a professional body has, over the past six years since the new governance arrangements took effect, delivered significant member benefits.

Since 2018 we have achieved the following:

• Effecting a change in the law by persuading parliamentarians of all parties to support an amendment to section 3 of the Power of Attorney Act 1971, enabling all Chartered Legal Executives to certify copies of powers of attorney – a significant win for consumers and for the profession;
• Persuading the government and the senior judiciary to open up direct application to judicial appointments to include recorder and Upper-tier Tribunal roles. This supports the ambition of the Judicial Appointments Commission to attract and appoint candidates to the judiciary that represent the society it serves and improves the standing of the profession in the wider world;
• Lobbying the government, senior judiciary and key stakeholders to support CILEX lawyers attaining higher rights of audience, resulting in the regulator’s successful application to the Legal Services Board. Consumers will therefore have a wider range of advocacy providers in the courts system in England and Wales and we have been able to cement the standing of the profession as a distinct and equally attractive route to becoming a lawyer for school leavers and graduates;
• Re-designing the professional qualification to enable the acquisition of practice rights at the same time as becoming authorised as a Chartered Legal Executive, abolishing the need for new graduates to sit a further assessment or complete an additional portfolio post-qualification. This was a significant win for streamlined legal education, delivering full qualification as a specialist lawyer. It was equally significant for the profession as Fellows now have the ability to practise independently without supervision alongside those qualifying through traditional routes;
• Demonstrating to the government and employers that the new professional qualification meets the same educational standard and should therefore attract the same funding as the solicitor qualification when studied through an apprenticeship. This is another substantial step towards ensuring full funding of apprenticeships to the point of becoming a fully qualified lawyer for non-traditional routes, therefore enabling access to the widest possible number of candidates and a significant endorsement of the equality of the educational outcome of the CILEX route compared to others;
• Lobbying the Legal Aid Agency to consider granting CILEX the same standing as the Law Society in appointing duty lawyers, something we believe will play a role in helping increase the number of duty lawyers in areas where there are currently none or too few, as well as removing another difference between the CILEX profession and others working in criminal law. The consultation on this change is due in the near future;
• Gaining CILEX representation on the Criminal Legal Aid Advisory Board alongside the other major professions, ensuring all professions are represented in a key consultative forum and building the public standing of the profession.
• Changing the policies of some of the largest lenders in the UK mortgage market to accept that CILEX-led and CILEX-owned conveyancing firms are equally credible and as able to handle their business as those owned and led by solicitors;
• Convincing government and the opposition that requiring CILEX criminal lawyers to retrain as solicitors to become Crown prosecutors was unnecessary and that changing the law in this regard would be in the public interest as it would add prosecution resources that could support the reduction of the court backlog. Whilst this will require primary legislation and take time, when enacted it will remove the last major distinction between the CILEX profession and others who practice in criminal law; and
• Agreeing to establish a new chartered status for paralegals in England and Wales to recognise the value and standing of part-qualified legal professionals who play a vitally important role in delivering legal services to consumers. This move will establish new standards for legal practice, protecting consumers as well as proving greater professional recognition and standing for thousands of professionals working in part-qualified roles.

Regulatory arrangements

Our public interest duty comes to the fore not just in relation to our role as an awarding body for professional qualification, but also as the approved regulator for the CILEX profession.

Here too we have spent the last two and a half years conducting a review of the effectiveness of our regulatory arrangements to ensure the public and consumer interest is best met. Our objective is to ensure that our regulatory arrangements not only protect the public but also enhance the standing and reputation of the CILEX profession by aiding consumers, banks, lenders and legal services providers to understand the status, competence and specialist scope of practice of CILEX lawyers as a valid alternative to a solicitor.

“Our objective is to ensure that our regulatory arrangements not only protect the public but also enhance the standing and reputation of the CILEX profession” 

This will, in our assessment, strengthen the ability and willingness of consumers and providers to utilise a more diverse range of legal professionals and in turn offer increased equality of opportunity for CILEX members to further their careers.

As the approved regulator, CILEX has a duty under section 28 of the Legal Services Act 2007 to ensure that in delegating the discharge of our regulatory functions, the arrangements are “compatible with the regulatory objectives” and are those arrangements which we consider to be “most appropriate for the purpose of meeting those objectives’’. Rule 1(3) of the Legal Services Board Internal Governance Rules also places a duty on CILEX to “periodically review and, if reasonably practicable, improve its arrangements” for delegation.

Under the current arrangements, there is both regulatory overlap and confusion amongst consumers and the profession itself as to where regulatory standards are set and which body is responsible for holding them to account against those standards.

This arises from all but an estimated 5% of CILEX members being regulated both by CILEX Regulation Limited as individual practitioners and also by the Solicitors Regulation Authority (SRA) as a result of their employment in SRA-regulated firms, or through being supervised by a solicitor if they do not possess authorisation to practise unsupervised. CILEX therefore has a duty to explore whether it can remove this overlap and confusion through a change of delegation.

A clear public interest assessment has now been completed and shared with the regulated community and with wider stakeholders, and over this year we will move forward to reach a decision as to our future regulatory arrangements. The public interest case and the outcomes of our consultation and impact assessments will inform our decision-making.

An independent voice

Since 2018, governance arrangements have been in place that see decision-making authority entrusted to a lay majority appointed board and member-interest related activities reserved to a separate Professional Board. This means CILEX is able to both fulfil its duties as an approved regulator and chartered body, free from professional vested interest, and demonstrate the credibility of an independent voice arguing for change on the basis of the public good that also is good for the profession. It is this that makes us stand out as a professional body and enables us to make the impact we have made to date.

On regulation and other matters, the board will continue to put the public interest first and foremost. It is the key foundation for building our influence and impact as we move forward with our strategy to enhance our relationship with employers, universities and colleges and to attract and develop the lawyers of the future through our education pathways and professional networks.