I wrote a blog last summer reflecting on the impact of our work on consumer focused regulation in legal services, two years on from the publication of a report on that topic. The theme of that blog was on the positive engagement we had seen from all legal regulators. Having focused previously on where we’ve seen good progress, I wanted to reflect on the areas where applying consumer focused principles in legal services regulation continues to be more challenging and what opportunities there might be to address them.
In terms of challenges, there are three themes which have appeared consistently in the workshops we’ve held on this topic. The first is around regulators’ access to and use of research with consumers, which is fundamental for effective consumer focused regulation. Conducting primary research with consumers is a challenge for many of the regulators, particularly the smaller organisations, because of the cost involved – and sometimes also the timescales. There are two opportunities which regulators could take more advantage of here: making better use of existing research and evidence and collaborating on primary research. Firstly, there is the Legal Regulators Research Forum, at which regulators share their work on research. However, it has been noticeable at our roundtables that attendees have not always been aware of existing resources, and it may be time for the sector to consider a repository of research commissioned by all regulators. Could more be made of the Research Forum to enable existing research to be catalogued so it is easily accessible and searchable, so it is easy for regulators to find out what’s already available when starting work on a new policy area or topic? We believe the LSB floated this very idea some years back, but we have not seen its development. Secondly, we believe there are more opportunities for the regulators to collaborate on primary research. In the seven years that I have been a member of the Panel, I can only recall one example of this type of collaboration happening so there is definitely scope for more.[1] The recent digital exclusion work, which the BSB, CILEx Regulation, CLC and ICAEW collaborated on together, might provide a good model for future collaborative research projects if the lessons learned could be gathered into a toolkit, along with template documents like agreements between the regulators. This collaboration also utilised the Public Panel framework, which was set up by the LSB and the LSCP to help regulators gather consumer views.
The second challenge which has come up consistently is how regulators evaluate their interventions and activities. This is a topic that the Panel has been actively encouraging regulators to focus on for some time[2] and was a key theme in the Consumer Focused Regulation report. It is important to say that evaluating regulatory interventions in a complex setting like legal services is a difficult thing to do well, and there can also be cost involved if primary research is required. However, in my professional experience, a huge amount of value comes from the initial thinking around evaluation done as part of the initial policy design. Putting together a Theory of Change when the policy or regulatory intervention is being designed can sharpen thinking on exactly what the intervention is designed to achieve and how that change is expected to happen. This is valuable in and of itself, as well as informing choices about what can be measured to assess whether the desired change is happening in practice. Many of the legal services regulators have experience of developing Theories of Change for their own work, and I wonder if there is an opportunity for regulators to facilitate workshops for each other to share that knowledge and provide some external challenge.
Finally, and probably the trickiest of the challenges, is how regulators can consider consumer issues more systematically and transparently in their decision making, including through formal governance processes. This is an area where the Panel sees very varied practice currently, both between different regulators and within individual regulators. I think it’s fair to say that none of the regulators have cracked this yet. We have not yet seen all regulators building routine consideration of consumer issues into their board paper templates and little increase in the creation and publication of well-considered impact assessments. We would encourage both of these practices to be used more widely and consistently – and if regulators are routinely putting a Theory of Change together, it will make it easier to articulate the intended consumer impact. We would also strongly encourage regulators to have one or more nominated Boards members who take a lead role in scrutinising the consumer aspects of proposed changes and interventions. Having worked in a regulator myself, I know the power and influence that Boards can have over the organisation’s work simply by routinely asking about the same issues. Of course, considering the consumer perspective should be a role for the Board as a whole but it can be helpful to have someone who routinely brings this angle to discussions.
As I come to the end of my term as a member of the Panel, this will be my last direct involvement with the work on consumer focused regulation. Based on the attendance and discussion at our last workshop in the autumn, the appetite to continue to work on this important topic remains strong and I look forward to seeing how it develops.
Liz Owen, former LSCP Panel Member
[1] Regulators have also worked together on pilots.
[2] See https://www.legalservicesconsumerpanel.org.uk/wp-content/uploads/2022/06/22.06.30-Monitoring-and-Evaluation-in-Legal-Services.pdf