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In context: Regulation of Legal Services (Scotland) Bill

In context: Regulation of Legal Services (Scotland) Bill

The Regulation of Legal Services (Scotland) Bill aims to shake up the way legal services in Scotland are regulated, including updating how complaints against lawyers are handled.

What is included in the bill?

The main purpose of the bill is to protect consumers and much of the focus is on simplifying the process for making complaints against providers of legal services. It does this by proposing that the Scottish Legal Complaints Commission (SLCC) be “reconstituted” as the Scottish Legal Services Commission and given new powers aimed at taking some of the clunkiness out of the current system.

It also sets out how providers of legal services – mainly law firms, but advocates and organisations such as charities, too – should be regulated, dividing existing regulatory bodies into specialist and consumer-facing categories and paving the way for new regulators to be approved in future. Notably, the bill makes provision for ministers to alter regulatory bodies’ objectives without having to pass legislation first, with the government saying that measure “is designed to reflect that best regulatory practice can change over time”.

Why has it been introduced?

There have been calls for an overhaul of the way the legal sector is regulated for well over a decade, with the initial aim being to enable non-lawyers to take ownership stakes in law firms. That has been allowed in England and Wales since 2007, meaning legal practices south of the border have been given a competitive advantage by being able to do things like can raise cash via a stock market listing. The 2010 Legal Services (Scotland) Act was supposed to pave the way for that to happen here too, but with no agreement on how such business entities should be regulated it has never become a reality.

More recently, the focus of regulatory change has shifted onto complaints, both in terms of strengthening the position of consumers who have received poor advice and ensuring there are robust systems in place for dealing with practitioners whose behaviour is thought to fall short of professional standards. 

Regulatory bodies the Law Society of Scotland, Faculty of Advocates and Association of Commercial Attorneys have long complained that the process for handling complaints is convoluted and, as such, not fit for purpose. This came into sharper focus in 2020 when questions were raised about the conduct of then Faculty dean, Gordon Jackson KC.

He had been recorded publicly discussing his ultimately successful defence of former First Minister Alex Salmond – who had been accused of sexual offences – and though he had attempted to refer himself to the SLCC was unable to do so. Legislation allowed another member of the Faculty to make the referral on Jackson’s behalf and, after the SLCC looked at the matter, it was referred back to a Faculty disciplinary panel for determination.

In November 2022, more than two years  after the initial complaint was raised, Jackson was given a five-month suspension but has continued to practise, pending an appeal.

If this has been in the pipeline for more than a decade why has it taken so long for the bill to be brought forward?

The Scottish Government initially asked former NHS24 chair Esther Roberton to review how the legal profession is regulated but, when she reported in 2018, lawyers really didn’t like what she came up with. Chief among the gripes was the suggestion that a completely new regulator be created to oversee all branches of the profession – something the Competition and Markets Authority had also been in favour of. Following the backlash, in 2019 the government announced a public consultation on the Roberton proposals but did not carry that out until 2021. It published its analysis last July and its plans for the bill in December.

What are people saying about it?

The SLCC has been one of the biggest proponents for change and is probably the biggest winner from the bill. Unsurprisingly, it has welcomed it. Its chief executive, Neil Stevenson, says the proposed legislation marks a “significant step” towards creating a legal complaints system that is “more person-centred and proportionate” and that provides an opportunity to “build a culture of prevention, quality assurance and compliance in legal services regulation”.

The Law Society of Scotland, which will continue to regulate solicitors, is less convinced. Its president, Murray Etherington, says it is “deeply alarming” that the bill envisages giving ministers the power to intervene and direct regulators, something that would risk “seriously undermining” the independence of the legal profession.

“One of the most important roles of the legal sector is to challenge government on behalf of clients and hold it to account,” he says. “The proposed new power allowing Scottish ministers to intervene directly in regulation risks seriously undermining the independence of the legal profession from the state. This is clearly unacceptable and needs removed from the bill by the Scottish parliament as the bill progresses.”

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