Elisabeth Davies, Chair, Legal Services Consumer Panel

The fact that the Panel was created by the Legal Services Act itself is significant. It gives the Panel status as a permanent and discrete champion for consumers.

The Legal Services Consumer Panel was created by the Legal Services Act 2007 and began operating in late 2009. The Panel is an independent arm of the Legal Services Board and is made up of eight lay (nonlawyer) members whose appointments are approved by the Lord Chancellor. The Panel provides advice to the LSB, in order to help it make decisions that are shaped around the needs of users. The Panel has a remit to represent the interests of the many different consumers of legal services, including small businesses and charities, and with a priority for vulnerable groups of consumers. The Panel has legal powers to publish its advice and the LSB has a legal duty to explain its reasons when it disagrees with the advice that the Panel publishes.

The main focus of the Panel is to ensure that the reforms in the legal services market are producing better outcomes for consumers and to ensure that regulators are taking into account the use of legal services from the perspective of the consumers. We are trying to put the needs of consumers of legal services into the heart of the regulations.

The fact that the Panel was created by the Legal Services Act itself is significant. It gives the Panel status as a permanent and discrete champion for consumers.

We have authority at two levels. The first is statutory. For example, we are a mandatory consultee on license applications. Now that we have been in existence for a number of years, we have also earned a second level of authority because of the quality of the evidence that we bring to the table.

We feel that we have a responsibility to replace anecdote with evidence. There is no shortage of anecdote in discussions about legal services, but there is a remarkable shortage of data and evidence. We bring a complete range of research and evidence to the table, and this enables us to speak with authority. It is what gives strength to our arguments when we want regulators to change their behavior or their priorities.

We started by looking at the Act, and asking what would constitute success from a consumer’s perspective — what were the consumer outcomes that the Act needed to deliver? It was by asking this question that we determined what we needed to do as a Panel.

Two of the most important things that we do are a Tracker Survey and a Consumer Impact Report. The Tracker Survey we commission ourselves. This is our annual survey of 3000 members of the general public and consumers of legal services. Each year, we ask the same questions, in order to determine what is and is not changing for them.

The Consumer Impact Report we issue every other year. This combines evidence from our Tracker Survey with information from other parts of the sector, in order to shed even more light on what is and is not changing for consumers, where there have been improvements and where more improvement is needed.

The Tracker Survey and the Consumer Impact Report are available on our website, as is the data in its raw form. In this manner, it is accessible to all, and notably to other regulators who can also use it.

Our members are selected in the same way that members of comparable public bodies are selected. We have an open recruitment process, we seek a variety of skills and expertise, and we are very clear about the skills and expertise we are seeking. Our members cannot be practicing lawyers but they can have had legal training or background (that is the case for one of our current members). They are required to act in accordance with the Nolan principles, which govern everyone in the UK who holds a public office. (These seven principles are selflessness, integrity, objectivity, accountability, openness, honesty and leadership). Members are appointed for a term of three years. Based upon performance, reappointment for a second term is possible — the maximum is two terms.

Our budget comes exclusively from the LSB. Our budget is very small — about £200,000 per year, to cover the costs of our research, the salaries of our small staff, and remuneration of the Panel.

Our accountability is both upwards and downwards: While we are a part of the LSB, we are separate from it. We are the LSB’s Consumer Panel — in that way we are accountable to LSB. At the same time, we are independent of the LSB, and at times have been critical of the LSB. We have a direct accountability to the Ministry of Justice by virtue of a triennial review of both the LSB and the Panel. Finally, we are accountable to those who use legal services.

Every year we publish our work program and in 2015 we published a new three year strategy. Our principle activity is our research. In addition to across-the-board spectrum work like the Tracker Survey and the Consumer Impact Report, we also research specific areas of the law that we think, in most cases based upon the Tracker Report, require further consideration. Examples of this are our recent research on on-line divorce tools and on unbundling. In addition to our research, we respond to a myriad of consultations, and we act as an ambassador for our work by giving speeches and participating in conferences, to persuade others in the sector to take account of the consumer. Further, we bring others together: We previously established a regulators’ forum, where we assemble the various legal regulators in order to talk through our research, encourage sharing of information and to discuss how they can change their behavior and practice. This is now supported by the regulators themselves.

Finally, we produce usable resources and tools for regulators. In this way, rather than just tell regulators that they need to do something differently, we produce resources for them to use to do this, and we train their staff in this regard. In this way, we become part of the solution.

An example of this is our consumer vulnerability toolkit, in which we help regulators to understand how they can do more to take into account the needs of vulnerable consumers (Recognizing and Responding to Consumer Vulnerability: A Guide for Legal Services Regulators). In this toolkit, we move away from thinking about vulnerability on the basis of specific demographic groups. In the legal services market, there are people who may not be vulnerable in any other aspect of their life, but in a legal or court setting, they are, and this has all sorts of consequences.

From the time we were established we have been pushing the regulators for open data. At the moment, the regulators make available to the public very little data about the communities that they regulate. We think that this data is key for third party intermediaries such as comparison websites, and key for consumers to enable them to make choices and shop around. This year we’ve succeeded to get each regulator to agree to put in the public domain a minimum of information in a usable format. This is a significant step forward and it will happen because of our perseverance. But it’s just a first step because the data will be basic – the name and address of providers, but not complaint information, for example.

The Panel is on a long journey — some of the things that we want to do will take time. Also, we are a lone voice — other consumer panels do not focus on legal issues. So, if we are not doing something, it does not get done. If we do not highlight something, it does not get highlighted. This is a challenge for us.

The reforms of the 2007 Legal Services Act were necessary. There is no question about that. There is no question that we needed to move away from the centuries of self-regulation that we had before. And the reforms have resulted in positive changes for consumers. But the reforms were only a first step — more change is needed.

As regards ABSs, it is still too early to judge the full impact of the reforms. They’ve only been in existence for a few years, and we are still in early days. The question of ABSs reminds me of the Bill Gates quote — that people tend to overestimate the change that will occur in two years but underestimate the change that will occur in ten. I think that some people overestimated the pace of change that would occur as regards ABSs. On the other hand, our most recent Consumer Impact Report demonstrates that there has been a large amount of activity as regards new business models and investment in the market. But it will take time to feed through to what ordinary people experience on the ground.

That being said, the Tracker Survey demonstrates that consumers are becoming more empowered: people are shopping around more, and there is an increased use of fixed fees, which is something that people have been asking for. Take family law for example – you can see some real changes there, and notably as regards fixed fees, as in 2012 these were used only 10% of the time, whereas in 2014 they were used nearly half the time. The entry of a very high profile competitor, The Cooperative Legal Services, made a considerable impact on the family law market.

Showing cause and effect is tricky, but if you look at the Tracker Survey, you can map out the tangible changes that have taken place in the market as regards consumer satisfaction, use of quality marks, use of comparison websites, use of unbundling,…

There are those in the UK who still think that access to justice just means access to a lawyer. At the Panel, we think that access to justice means something much larger — putting the consumer at the heart, access to justice means access to legal services, access to the support that a consumer needs. That support may be provided by a lawyer, by it may also be provided by an unregulated provider or by the voluntary sector. People are going to a myriad of providers, and it is important that they have that choice. We look carefully at changes that increase the number of entrants into the legal services ecosystem in its entirety, and we think that the regulatory reforms in the UK were needed in order to create choice and diversity that did not exist before.

In this context, unbundling is particularly interesting. We know that there is a significant amount of unmet need for legal services, and we know that a large number of people are representing themselves in court. Today we have more providers who have stepped away from the “all or nothing” approach in order to break support down into bundles. In this way, a person can get the support they need from a variety of sources, paying for some of it but not for all of it. For example, some support a person can get online, some they can get from the voluntary sector (charities), and some they can pay for with a lawyer.

A particular benefit that ABSs offer is access to capital and, in turn, investment in technology. That can be what transforms service delivery. In our 2020 Report, in which we predict what the legal market will look like in 2020 and recommend what the regulatory response should be (2020 Legal Services: How Regulators Should Prepare for the Future), we look at which activities are capable of automation. The activities we look at in particular are conveyancing, divorce, dispute resolution, and documents such as contracts and wills. Consumers are not all the same — they have a large variety of needs, and we see the investment in technology that ABSs facilitate as being an important factor in meeting so many different needs.

When ABSs were first introduced in the UK, there were fears that they would “cherry pick” the most profitable work and squeeze out law firms that subsidize less profitable work with more profitable work. But the data today does not support those fears. If you look at the SRA’s data in particular, you’ll see that ABSs have captured a significant portion of the market in the areas of mental health and social welfare. ABSs have gone for the areas of law where there is significant unmet need. They have provided access to services that previously people didn’t have access to at all.

The regulatory reforms in the UK raised a myriad of political and cultural issues. In the midst of these issues, it has been easy to lose sight of what the reforms are about, of what they are supposed to deliver. In this context, the existence of the Panel has been very important. Because we exist, we have been able to ground the regulatory reforms in consumer outcomes. We have been able to reframe the debate in terms of improving consumer outcomes.

The legal services market is no longer limited to regulated providers (that is, to lawyers). The legal services market is a much larger ecosystem. In order for a regulator to do its job in this ecosystem, it must be aware of what is happening outside of the regulated sector. Access to justice is no longer provided solely through regulated providers. Access to justice is a nuanced and complicated problem that requires nuanced responses and solutions.

I have worked in many areas, with a particular experience in the area of healthcare. In healthcare, there is an expectation that a person is a consumer of healthcare services, yes, but also a key part of planning better healthcare systems. A person’s input as a consumer is key towards improving healthcare services.

The same is true for all other kinds of services, including legal services. As a user of any service, you are absolutely critical to the quality of those services, to planning those services, to ensuring those services are improving. You are absolutely critical to ensuring that the market actually works. Most markets come down to the choices that people make, and if you are not an informed consumer, then you will not make the right choice.

I am not a lawyer. I am passionate about the belief that you can improve services only by listening to people who use those services. Like most of the people who join the Panel, during my first few months I thought “goodness, I am not a lawyer — how can I possibly ever understand these issues?” But then, again like the other Panel members, I reached the point where I had the confidence to transfer my knowledge and understanding from other areas to the legal sector. I was able to take legal services off its pedestal — to move away from what is unique about legal services to relate it to services that I am more familiar with. That was a significant tipping point. It enabled me to understand that the basic issues that we raise as lay people are fundamental — that they are issues that need to be raised, even (if not especially) if lawyers don’t welcome us raising them, or do not understand why we are raising them.

Here is an example — when the Panel first raised the issue of open data, we were criticized for raising such a “vanilla” issue. But I disagreed. I recognized that it is a fundamental issue that is very much worth not only raising but also pursuing with persistence.

This story is supplemental material for Democratizing Legal Services: Obstacles and Opportunities and Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? To learn more about these books, please click here and here.

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