“Quis custodiet ipsos custodes?”

Please forgive my increasingly unfashionable use of Latin, but I retain a sentimental attachment to that ancient language.  The quote is from Juvenal’s Satires, often translated as “who watches the watchmen?” or sometimes by extension “who judges the judges?”  So it could be reasonably extended to “who regulates the regulators?”

If you discuss regulation with any professional, my impression is that the immediate reaction is usually a sigh or a rolling of eyes.

A lived experience of regulatory inertia

My own experience with regulators has confirmed this negative impression. When I supported a complaint to the SRA, the approach by them to the complaint could be described as lacking in energy.

I wanted to take action against a tech shop who had charged me £150 for a new screen for my laptop. The new screen lasted one day.  The owner said it was my fault for breaking it. I got no joy from him so I considered taking legal action.  However the tech shop only had a name.  It was not possible, in breach of statutory provision, to find out who actually owned and ran the shop. Accordingly, I attempted to contact Trading Standards. I was informed that Trading Standards was a “closed department” but I could send an email. I did so. A month later I got a response from a caseworker at a Citizens Advice Bureau in Milton Keynes telling me that I had a possible claim under the Supply of Goods and Services Act 1982.

Why Regulators Fail : Poor motivation and setting their own agenda

I think the essential problem now with regulators reflects something I have observed having been involved in employing people for many years.  If you do not supervise the person employed properly, they will end up doing the job they want to do, not the job that you want them to do.  This can be seen in the way that the regulatory bodies have adapted their approach to reflect what could be described as a lack of challenge. The significant aspects appear to be:

• Producing nebulous policies;
• Providing inconsequential data and analysis;
• Subjecting individual organisations to what is described as light-touch regulation, which essentially produces a beauty parade of policies;
• Easy wins in disciplinary action;
• A lack of appetite for anything difficult or challenging.

These traits can clearly be demonstrated by the fact that when something really goes wrong, such as Grenfell Tower or Axiom Ince, the regulators in question are posted missing.

Legal regulation: fragmentation and dysfunction

The problem is made worse in legal regulation, where the different regulators for each part of the profession result in a further behaviour:

• Bickering with each other.

Professor Stephen Mayson and others are surely correct in advocating for a single regulator for the legal profession.  There is not so much difference between the branches of the profession to require individual regulators.  The overarching regulator the Legal Services Board simply displays similar behaviours to the individual regulators, thereby creating additional cost to no obvious advantage.

Reform without culture change is not reform

The creation of a single legal regulator will at least reduce the cost of regulation to the profession.  It is questionable whether, without a change of culture to address the real challenges of regulation, there will be any other advantage.  A change of culture cannot be achieved by individuals in the profession either sighing or rolling their eyes.