Proponents have argued that the current legislative framework governing legal services in Scotland is outdated, with much of it over 40 years old.

Their argument is that the system has led to a fragmented and often confusing regulatory environment. The Law Society of Scotland, in its strategy “Leading Legal Excellence” (2015–2020), highlighted the urgent need for a modern, flexible, and enabling legislative framework to protect consumers and support the thriving legal services market. This necessity for reform was further underscored in “The Case for Change” published in 2016, which outlined proposals for a comprehensive overhaul of the regulatory framework.

Their calls for reform came with the announcement of an independent review in April 2017. Led by Esther Roberton, this review culminated in the Fit for the Future report in October 2018, which made 40 recommendations aimed at modernising legal services regulation and improving complaints handling. While the Law Society supported many of these recommendations, it strongly opposed the principal suggestion of establishing a new single regulatory body.

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Reform consultations

In October 2021, the Scottish government launched a consultation on legal services regulation reform, presenting three regulatory models. The Law Society’s response in December 2021 strongly rejected the idea of a new single regulator, advocating instead for improvements within the existing co-regulation structure. The government published its analysis of the consultation responses in July 2022, followed by its own proposals for reform in December 2022. These proposals included retaining the overarching role of the Lord President and the Court of Session, extending legal professional title regulation, and making the complaints system more flexible.

Introduction of the bill

On 20 April 2023, the bill was introduced to the Scottish Parliament. The bill proposed updates to the regulation of legal services, granting additional powers to the Law Society to protect the public interest and introducing changes to simplify and expedite the complaints system. However, it also included provisions allowing Scottish Ministers to intervene and direct regulators, which the Law Society has vehemently opposed.

Concerns about the bill

The primary argument against the bill is that it seriously risks undermining the independence of the legal profession from the state. The Law Society has warned that the proposed powers allowing Scottish ministers to intervene directly in the regulation of solicitors are “deeply alarming” and could undermine the rule of law. Such intervention could compromise the legal profession’s ability to challenge government actions and defend clients without fear of government retaliation. Murray Etherington, past president of the Law Society of Scotland, emphasised that one of the most important roles of the legal sector is to hold the government to account, and any threat to this independence is unacceptable.

Sheila Webster, immediate past president of the Law Society of Scotland, echoed these concerns, stating that the proposals for ministerial intervention are “dangerous and wrong” and must be removed from the bill. She argued that the independence of the legal profession is a fundamental principle in any democracy, essential for solicitors to act freely and without government interference. The introduction of sweeping levels of ministerial intervention could make Scotland a less attractive jurisdiction for doing business and damage the global reputation of its justice sector. This could result in clients seeking legal services elsewhere and multinational firms relocating to other parts of the UK.

David Gordon, lay convener of the Law Society’s regulatory committee, also highlighted the importance of maintaining the independence of solicitors, noting that the proposals are unlike anything seen in other Western democracies. He warned that the changes could set a dangerous precedent, potentially being used by autocratic regimes to justify similar controls on lawyers in their own countries.

The case for ratifying the bill

Despite these significant concerns, there are arguments in favour of the bill, particularly regarding its potential to modernise the regulation of legal services and improve consumer protections. The current legislative framework is over 40 years old and is ill suited to the needs of a modern and diverse legal sector. The bill presents an opportunity to streamline and enhance the regulatory system, making it more efficient and responsive to the needs of both legal professionals and consumers.

One of the key benefits of the bill is the proposed changes to the complaints system. The existing system is widely regarded as slow, complex, and expensive, creating significant burdens for both consumers and legal professionals. The bill aims to simplify and expedite the complaints process, ensuring that issues are resolved more quickly and effectively. This could lead to improved consumer satisfaction and greater trust in the legal profession.

The bill also includes provisions to regulate legal businesses more effectively and introduce new restrictions on who can call themselves a lawyer. These measures are intended to enhance public protections and ensure that only qualified individuals can provide legal services. The inclusion of non-solicitors in the regulatory process is another positive aspect, as it can bring greater transparency and accountability to the system.

Detailed provisions and concerns

The bill implements several recommendations from the Fit for the Future report, which suggested the repeal of the Solicitors (Scotland) Act 1980 and parts of the Legal Profession and Legal Aid (Scotland) Act 2007, introducing new enabling legislation for the regulation of legal services. This new framework would allow for proactive regulation to ensure robust consumer protections. The bill also proposes amendments to sections of the Legal Services (Scotland) Act 2010 to address difficulties in interpretation and application, providing flexibility for the Law Society to seek approval from the Legal Services Board to regulate multinational practices operating in Scotland.

A noteworthy recommendation is the regulation of legal services provided remotely by artificial intelligence, reflecting the need to adapt to technological advancements. The bill also proposes retaining an independent professional body for the regulation and professional support of Scottish solicitors, along with a separate and independent discipline tribunal for serious cases of professional misconduct.

Another significant provision is the regulation of all legal service providers who offer services directly to consumers, aiming to strengthen consumer protections and enhance confidence in the Scottish legal sector. Additionally, the bill proposes that the term “lawyer” be a protected term, ensuring that only individuals with recognised legal qualifications and regulatory oversight can use it.

The proponents of the bill argue that it ought to extend entity regulation to firms wholly owned by solicitors, allowing the Law Society to regulate these entities. It introduces a new system for dealing with complaints about legal services and solicitors, aiming for speed, effectiveness, and efficiency while distinguishing between consumer redress and professional discipline. Furthermore, the bill provides permissible power for the Law Society to open its membership to non-solicitors.

Consideration

While the potential benefits of the bill are significant, they do not outweigh the fundamental risks it poses to the independence of the legal profession. The ability of solicitors to challenge government actions and defend clients without fear of interference is a cornerstone of a democratic society. Any threat to this independence must be taken seriously, and the proposed powers of ministerial intervention represent a clear and present danger to this principle.

Furthermore, the potential negative impact on Scotland’s attractiveness as a jurisdiction for legal services cannot be ignored. The introduction of ministerial intervention could deter clients and multinational firms from engaging with the Scottish legal market, leading to economic repercussions and a loss of prestige for Scotland’s justice sector.

Conclusion

The Regulation of Legal Services (Scotland) Bill, in its current form, should not pass. While it presents an opportunity to modernise the regulation of legal services and improve consumer protections, the provisions for ministerial intervention are too dangerous to be overlooked. The independence of the legal profession is a fundamental principle that must be preserved to ensure that solicitors can act freely and without fear of government interference.

The Scottish Parliament should amend the bill to remove these provisions and work towards a regulatory framework that balances the need for modernisation with the imperative to protect the independence of the legal profession.

This is because, at its base, access to justice for the Scottish public requires that the legal services regulator in Scotland have independence from discretionary ministerial intervention.

Nicholas Collier is a practitioner admitted in the Supreme Court of Queensland, the High Court of Australia, and the High Court of New Zealand. He currently works at the Legal Services Commission.