Editor's blog | Regulatory long grass

The evidence seemed unquestionable: mystery shopping research, consumer surveys, concurring media reports, and the wider legal sector generally united over the need for the stricter regulation of will writing. But it wasn’t compelling enough for the lord chancellor to endorse the LSB’s recommendation that it should become a reserved activity. When earlier this week Chris Grayling decided he would not make the order required to change the law, he kicked the proposal deep into the regulatory long grass.

Beyond the disappointment lies a more worrying concern for the profession. If the lord chancellor decides not to follow the board’s recommendation, the Legal Services Act requires him to issue a notice stating the reasons. Grayling went through the motion. There appeared to be no sense of encouragement in the notice that the LSB was on the right track. Instead, he made his own recommendations that stakeholders should shift their effort on educating the market. The LSB and the Consumer Panel put a brave enough face on it. The profession feels let down.

Grayling’s predecessor, Ken Clarke, was understood to be supportive of stricter regulation. Under Grayling the MoJ is toeing the party line more tightly. This means less regulation. “Work is ongoing to consider how the legal services regulatory landscape might be simplified and reduce any unnecessary burdens” and “it might be appropriate to bring will writing within the scope of legal services regulation,” the notice says. So the door is not entirely closed on the proposal. It could even dovetail happily with calls from the Consumer Panel to simplify the legal services regulatory landscape.

But in all likelihood very little will happen before the next election, set for May 2015, and even assuming a Conservative win, it would be another year at least for new rules to come into force. Other proposals could also be developed along the way, including the regulation of estate administration and the possibility of a single regulator.

Against this background Grayling’s decisions takes a less political colour, particularly if you consider the fact that making will writing a reserved activity could involve setting up yet another frontline regulator on top of the existing eight. Remember also that support for the reservation of will writing has not always been unanimous. Until recently the Law Society – whose stance now appears firmly in favour – was cooler about the idea. The move would be “a Trojan horse to fill the market with other professional groups”, chief executive Des Hudson said in July last year, suggesting instead the creation of a voluntary will-writing quality scheme.

On balance, the LSB’s evidence is convincing. On the whole, the Journal remains in favour of making will-writing a reserved activity. But you cannot ignore the problems that arise when you consider how the consumer detriment can be best addressed.  Regulation is undoubtedly an unrivalled badge of excellence but it comes at a cost. There could be unintended consequences too. As Hudson hinted last year, other providers could ride on the coat tails of reservation, much as claims management companies once used the requirement to be authorised by the ministry of justice as a marketing ploy. Reservation would bring greater protection for consumers but it will not make all the other problems solicitors are currently facing disappear.