R (ICAEW) v Lord Chancellor

The Divisional Court has handed down judgment in a judicial review brought by the Institute of Chartered Accountants in England and Wales (ICAEW) in a respect of the Lord Chancellor’s refusal to designate it as an approved regulator under the Legal Services Act 2007 in respect of reserved legal activities.

The ICAEW challenged the Lord Chancellor’s decision on the principal ground that, in considering the independence of the ICAEW’s representative functions from its regulatory functions, he had applied his own test which was more demanding than that set out in the Legal Services Act 2007 and applied by the Legal Services Board (the oversight legal regulator, which had scrutinized the ICAEW’s application and recommended that the Lord Chancellor approve it). The Court recognised the force of the ICAEW’s concerns that the Lord Chancellor’s decisions might therefore be inconsistent with those of the Legal Services Board. However, it decided that the Lord Chancellor had a discretion under the Legal Services Act 2007 in considering independence, and was not bound to apply the same test as the Legal Services Board. Accordingly, the ICAEW’s claim with respect to 4 of the 5 reserved legal activities it had sought to regulate was dismissed. The Court held, however, that there was a real risk that the Lord Chancellor had not given separate consideration to whether the ICAEW’s independence was sufficient to permit it to regulate the reserved legal activity of the administration of oaths. Accordingly, the ICAEW’s claim with respect to that aspect of the Lord Chancellor’s decision succeeded.

The full judgment can be read here and the further press on the decision can be read here.

Nathalie Lieven QC and Tom Coates acted for the ICAEW.