I’m one of those
very sad lawyers who gets excited about regulation (it amazes me how few barristers have even heard of the Legal Services Act 2007). It’s a pretty complicated area but, in essence, there are 6 specified activities that are deemed to be ‘reserved’ activities:
- Acting as a Commissioner for Oaths
- Probate Activity
- Acting as a notary
These are reserved as they can only be carried out (other than on your own behalf in some cases) by someone who is authorised by an approved regulator. This is often a lawyer. For example, I’m a barrister and the Bar Council (who have devolved the power to the Bar Standards Board) can authorise me to do all the above apart from the Notary part.
It’s not limited to lawyers though. For example, ILEX can approve someone to conduct advocacy and to administer oaths.
Why are you talking about this?
There has been discussion for a while about including will writing as a reserved activity. After a lot of research and consultation, the Legal Services Board finally proposed this.
On 14th May 2013 however, the Ministry of Justice announced that they would veto it, so it will remain unregulated.
Is that right?
In my view, no. I’m not a huge fan of the LSB (they’re an unnecessary layer of regulation that, if this was a Government that actually believed in deregulation, would be abolished) but they’ve got this one right.
Activities are reserved for a reason. For example, the need to have a professional that a Court can rely on to behave properly (and is subject to a disciplinary body) and the requirement to have insurance to protect the consumer if things go wrong.
There are various issues, but one simple reason stands out for me – if I want to sell or transfer my flat, this is a ‘Reserved Instrument Activity‘ and regulated. It makes sense – if someone messes up then I’m massively out of pocket. It’s important that the person dealing with the conveyancing knows what they are doing and are backed by an insurance fund if they mess up.
But if I want to transfer my flat after my death and use a dodgy will writing company, then there is no protection. That to me makes no sense.
This isn’t special pleading – I’ve never written a will for anyone (including myself – although given that I now have a cat and a wife-t0-be, maybe I should) and doubt I ever will. Whether will writing is reserved, regulated, or a complete free for all won’t impact on my work.
I thought you just mouthed off about legal aid?
Well yes, normally. Although as I said, I am interested in regulation. It does also typify this Government’s approach to legal services – a cavalier approach to risk.
Everyone agrees that the Government shouldn’t over-regulate but, equally, there does need to be some protections in place. Here, the Government has just ignored the research and the evidence, as well as the views of the experts, and sacrificed the consumer on the alter of their ideological beliefs.
Which is similar to the attitude they are taking to PCT. Everyone is warning them of the consequences, but they are going on regardless. With will writing, as with PVT, the likes of Chris Grayling would pay for a top-notch solicitor. Many of the general public without his financial resources will use cheap and unregulated services. Some of those may work out ok, but if they don’t, they won’t have any recourse.
Meanwhile, there will be companies without scruples who clean up.