Legal profession in Scotland needs single regulator, according to legal services review

A court - Image credit: Pixabay

The Independent Review of Legal Services has recommended a simplification of the “complex, inefficient” regulation of the legal profession in Scotland.

Its recommended overhaul would see a single public body, independent of both government and the legal profession, regulate the profession, set standards and handle complaints.

If the Scottish Government decides to enact the proposals, it would mean the Faculty of Advocates and the Law Society of Scotland would lose their regulatory powers.

The review, which has been led by NHS 24 chair Esther Roberton, was launched in April 2017 by then community safety minister Annabelle Ewing in response to concerns that the current complaints and regulatory system for lawyers in Scotland was too complicated for consumers and not fit for purpose.

Roberton’s final report sets out 40 recommendations for improvement, with the top one being to bring all regulatory and complaints handling together under one body.

“The money spent in Scotland, levied from providers to fund regulation of legal services, should be recalibrated towards a culture of quality improvement and prevention and away from an expensive unwieldy complaints system,” the review recommends.

At present, five bodies are involved in handling complaints against lawyers: the Law Society of Scotland, the Faculty of Advocates, the Association of Commercial Attorneys – which are also membership bodies for their respective parts of the profession – the Scottish Solicitors Discipline Tribunal and the Scottish Legal Complaints Commission (SLCC).

The SLCC was set up in 2007 to handle complaints against solicitors, advocates and other legal professionals.

However, while it can impose sanctions for poor service, it has to pass on any complaints involving standards of professional conduct to the relevant professional body for action, meaning a complaint about a solicitor could potentially have to go through three different bodies before it is resolved.

The reports notes that this method of handling complaints contrasts with other professions such as medicine, there is a “clear split” between the regulator – for example, the GMC – and professional representative bodies – for example, the royal colleges – that promote members’ interests.

And with the current complaints process taking months, or even years, a solicitor or advocate may have the issue hanging over them for a long period – while someone who may be guilty of misconduct could be to continuing to practice.

In its submission to the review, the SLCC also said that current system does not facilitate improvement or management of risk across the profession, while the review states that the current system is too focused on dealing with failure and not enough on prevention.

Another key change proposed by the review is regulation of the term ‘lawyer’, noting that there is public confusion about the difference between the terms lawyer and solicitor.

Currently, only a qualified person who holds a practice certificate from the Law Society of Scotland can call themselves a solicitor, but anybody can call themselves a lawyer, even if they have no legal qualifications – something the public may not be aware of.

Other key proposals in the review include bringing in regulation of legal firms as well as individual solicitors and advocates, along with more flexibility in the make-up of legal firms, which currently need to be majority owned by qualified solicitors, and developing a formal whistleblowing procedure.

Scottish Legal Complaints Commission chief executive Neil Stevenson welcomed the review’s recommendations, which he said reflected the SLCC’s own proposals.

He said: “Two and half years ago the SLCC published a vision for reform based on the ‘better regulation agenda’ and the internationally recognised consumer principles.

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“At the time we were a lone voice saying the current regulatory and complaints system was broken and that an entirely new approach was required both in the public interest and to support a vibrant and sustainable legal services sector.

“We recognise that the independent review has adopted the vast majority of our proposals into the final recommendations and found the evidence of best practice in other jurisdictions and sectors that we presented to be compelling.”

Stevenson said that a single and simplified regulatory scheme, carried out by an independent body, was a “logical starting point for future discussions”. 

He added: “It will be an exciting period over the next couple of years as we move to modern, agile and independent legal regulation fit for 21^st century Scotland, and within a vanguard of reform internationally.

“We call on government to respond quickly and to start discussing options for implementing those findings they support.”

Community safety minister Ash Denham thanked Roberton and the members of the independent review for their work and promised a response from the Scottish Government.

She said: "Working with the sector and other stakeholders, I will consider the 40 recommendations in the report in detail and set out the government's next steps in due course."