Roberton: Transformational approach
There should be a single regulator for all lawyers in Scotland, a major review commissioned by the Scottish government has concluded.
It would be responsible for entry, standards, monitoring, complaints and redress, as well as the wider roles around quality assurance, prevention and continuous improvement.
The review, by NHS 24 chair Esther Roberton, made 40 recommendations in all – including the introduction of entity regulation and that the term ‘lawyer’ become a protected title that only qualified practitioners could use. It is not protected south of the border either.
The reforms would leapfrog England and Wales, where a single regulator appears to be the direction of travel but the destination remains a considerable way off.
The Law Society of Scotland (LSS) represents some 12,000 lawyers – solicitors and solicitor-advocates, specialist conveyancers, ‘executor practitioners’ (who deal with probate) and notaries public – while the Faculty of Advocates oversees 450 advocates, a role delegated to it by the Court of Session, Scotland’s supreme civil court.
The LSS has an operationally independent committee to oversee its regulatory work,
There are also a handful of ‘commercial attorneys’, who have a statutory right to appear in court in relation to construction and building law, and are regulated by the Association of Commercial Attorneys.
As of last year, there were around 1,160 solicitors’ firms in Scotland: 650 were sole traders, with a further 345 having no more than three partners. Only 40 firms had 10 partners or more.
Ms Roberton said: “Jurisdictions across the world are grappling with regulation across all professions. This review has therefore been timely, as I have been able to draw on how thinking on regulation has been developing in recent years both domestically and internationally.
“None have so far taken the transformational approach that I propose but many of them are moving in that direction. The modern framework I propose would put Scotland at the forefront of better regulation.”
Her report said the single regulator proposal was framed by “the fundamental consumer principle that a good regulatory system should be independent of those being regulated”.
It continued: “I concluded that those who use legal services, and those that deliver these services, will be best served in the future by independent regulation that meets internationally recognised regulation principles and standards, putting the legal services sector in Scotland at the forefront of reform and innovation.”
The report stressed that there would not be a one-size-fits-all model, “as clearly the arrangements for each of the professional areas should be appropriate and proportionate to the business carried out by those professional groups”.
The single regulator would have an approval function on education, “which should be developed collaboratively with the professional bodies”.
Entity regulation would enable alternative business structures too, and the report did not recommend maintaining the provision that they would have to be majority lawyer owned, as required by a still-unimplemented piece of legislation from 2010.
The report said: “Our jurisdiction is small, however our regulatory structure is complex, inefficient and comparatively expensive.
“The latest annual report from the Scottish Legal Complaints Commission suggests that the number of complaints is increasing as is the levy on the legal sector. Finally, the ambition to enable the establishment of regulated alternative business structures is yet to be realised.
“Regulation itself is reforming, both domestically and internationally, consumer protection is, rightly, achieving higher priority, and it is important that the legal sector is well served in this changing climate.
“The way in which business is conducted, including globalisation and technology, and the changing needs and expectations of clients provides challenge for the legal services market, but it also provides significant opportunities. It is clear that the current regulatory framework is not able to meet the needs of all whom it serves. There is therefore a clear and pressing need for strategic change.”
The reforms would see the complaints commission and the Scottish Solicitors’ Discipline Tribunal abolished, with the latter replaced by a single body set up by the new regulator to handle cases against all lawyers.
Ms Roberton recommended that the board of the regulator should have a non-lawyer chair and non-lawyer majority, and that the title ‘lawyer’ be a protected title in the same way as ‘solicitor’ “and only those who are regulated should be permitted to use either title”.
She said the LSS and Faculty should still have a strong future: “I believe that working together to support the establishment of a new independent regulator will be a statement of the self-confidence in the quality and integrity of the profession.
“I also strongly believe that the organisations involved will be able to make the transition and continue to play a crucial role in the development of a vibrant and well respected legal services sector.”
Alison Atack, president of the Law Society of Scotland, said: “We strongly oppose the primary recommendation of a new single regulatory body because of the unnecessary risk it places on protecting consumers and higher costs.
“The Law Society has almost 70 years’ experience of successfully setting and enforcing standards in the solicitor profession.
“I find it surprising that, following such a long review, Ms Roberton would conclude without any consultation with the profession, that a new regulatory body be set up and that the law society be removed from the regulatory process.”
Carole Ford, a former head teacher who has led the LSS’s regulatory committee for the last seven years, added: “Ms Roberton’s recommendation of a single new regulatory body is disproportionate because there is no evidence of the need for this reform.
“As she admits in her own report, there is little evidence of significant wrong doing in the current model.”
Gordon Jackson QC, dean of the Faculty of Advocates, said: “We have received the report by Esther Roberton and will carefully consider her recommendations with our members.
“We look forward to further contributing to what is an important discussion about the provision of legal services in Scotland.”
The next stage will be a formal Scottish government response to the report.
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