Abstract
The Legal Services Act 2007 brings about radical changes to both the regulatory structure of the legal profession in England and Wales and the way in which legal services can be provided to clients. For nearly 40 years successive Governments sought to bring about changes to the regulation of the legal profession. Changes were achieved with only limited success. Following an Office of Fair Trading report in 2001 and a Government consultation titled ‘In the Public Interest?’ in 2002, the legal profession was given the time and opportunity to bring about changes themselves. With the advent of Lord Falconer as Lord Chancellor, a major review of legal services was announced in 2003. The report on the review produced by Sir David Clementi was used as the basis for a Government White Paper which, contrary to the 2002 ‘In the Public Interest?’ consultation, made no reference to the public interest. Following this White Paper a Draft Legal Services Bill was presented to Parliament in 2006. It made no reference to the public interest. The absence of any reference to the ‘public interest’ was identified when the Draft Bill received pre- legislative scrutiny by a Joint Select Committee. Reacting to the Committee’s report, the Government included three references to the public interest in the Bill presented to Parliament for debate. These limited and discrete references to the public interest were not accepted as satisfactory by the House of Lords and the marginalisation of the public interest fuelled a prolonged debate. Calls were made for the public interest to be included as a regulatory objective of the legislation. These calls were sustained by the Government’s very public commitment to the consumer interest. The Government eventually conceded and a regulatory objective of ‘protecting and promoting the public interest’ was inserted into the legislation. This thesis examines the inclusion of the regulatory objective of ‘protecting and promoting the public interest’ in an attempt to discover whether, in the hands of regulators, it is capable of realising the legislative intention which underpinned its inclusion in the Legal Services Act 2007. It examines the term ‘public interest’ and how it is difficult both to define and to integrate it into decision making processes. Difficulties experienced by regulators are considered. A range of public interest theories are examined. It is argued that one public interest theory presents an opportunity to overcome some of the difficulties associated with understanding the public interest. It is suggested that this particular theory, coupled with a proposed methodology for its integration into policy and regulatory decision making processes, enables the regulatory objective of ‘protecting and promoting the public interest’ to more systematically and realistically achieve the legislative intention which underpinned its insertion in the Legal Services Act 2007.