Legal services regulation reform: consultation

Ministerial Foreword

In April 2017 the former Minister for Community Safety and Legal Affairs, Annabelle Ewing, invited Esther Roberton to Chair an Independent Review of Legal Services Regulation in Scotland. This was a commitment by the Scottish Government in response to a case for change made by the Law Society of Scotland and others.

Over the following 18 months Esther Roberton, supported by a review panel made up of legal, consumer and regulation professionals and academics, engaged with a wide-range of stakeholders, including members of the legal profession, regulatory and representative bodies, the third sector and the public, before presenting her report and recommendations to Scottish Ministers.

The Chair's Report, 'Fit for the Future – Report of the Independent Review of Legal Services Regulation in Scotland', considered the public and consumer interest; the interests of the professions and providers; and the interests of the Scottish economy.

The Report makes 40 recommendations aimed at reforming and modernising the existing legal services regulatory framework, to provide a proportionate approach to regulation whilst supporting growth and competitive provision within the legal services sector, and placing consumer interests at its heart.

In June 2019 I published the Scottish Government response to that review and announced my intention to consult on the basis of those recommendations.

As was stated in my response, the Scottish Government is open to further views on how the report recommendations should be taken forward and this consultation is intentionally broadly set to capture the fullest range of views on the recommendations and what level of reform is supported.

Ash Denham
Minister for Community Safety

Glossary of Terms

ACA - The Association of Commercial Attorneys

Alternative Business Structures (ABS) - An alternative business structure refers to an entity that, while providing certain regulated legal activities, allows non-lawyers to own or invest in law firms. In Scotland, these entities are regulated under the Legal Services (Scotland) Act 2010.

Accountability - In the context of this consultation, regulation is responsible to those it serves: legal consumers, the wider public and the legal profession, with the aim of providing assurance that efficient, effective and proportionate regulatory arrangements are in place.

Advocate - Advocates are specially trained lawyers who are independent (self-employed). In Scotland they are members of the Faculty of Advocates. As well as initially having to have trained as solicitors they have to undergo further training (devilling) and examinations. Advocates have extended rights of audience to appear before the Supreme courts (the High Court of Justiciary, the Court of Session and also the UK Supreme court), though they may also appear in the Sheriff Court.

Audit Scotland - Audit Scotland is an independent public body responsible for auditing (conducting official financial inspections) of most of Scotland's public organisations. These include the Scottish Government, local councils and NHS Scotland.

Authorised / Approved regulator – Bodies with responsibility for regulating certain professionals, in the context of this consultation legal professionals.

Claims management companies - Commercial businesses or individuals that handle certain types of claims, including but not limited to, financial services and products, e.g. PPI, payday loans, personal injury, employment matters, e.g. unfair dismissal claims, and criminal injury.

Commercial Attorney – Commercial attorneys are members of the Association of Commercial Attorneys and have a statutory right to represent litigants in courts in Scotland in relation to construction and building law.

Consumer Scotland – The Consumer Scotland Act 2020 sets out that a new Non-Ministerial Office (Consumer Scotland) will be created to provide advice; represent the views of consumers; collect information; organise research and carry out investigations, to represent consumers' interests.

CPD – Continued professional development, the term used to describe the learning activities professionals engage in to develop and enhance their abilities. It ensures professionals maintain and enhance the knowledge and skills required to deliver a professional service to clients, and ensure that knowledge remains relevant and up to date.

Entities (Entity Regulation) - "entity-based regulation" and "law firm regulation" are terms used to describe programs that regulate law firms as well as the lawyers (and perhaps the non-lawyers) who work at a law firm.

Faculty - The Faculty of Advocates

Independence - There are three ways in which independence is referred to in this consultation:

I. A strong independent legal profession - The independence of the legal profession enables lawyers to fulfil this function by acting for the benefit, and in the legitimate interest of, their clients and society as a whole, without fear of abusive prosecution, and free from improper influence of any kind.

II. Independence from the profession it serves - This refers to the separation between a regulator's representative functions and its regulatory functions.

III. Independence from Government - The independence of a regulator from Government requires that the regulator is it a body which is legally separate from Government, with its own duties, powers and responsibilities clearly set out in statute. The regulator should be able to undertake its duties without seeking permission from, or the approval of, the Government.

Joint Standing Committee for Legal Education in Scotland - An independent consultative body that aims to act as a facilitator promoting the interests of legal education, in academic training and in continued legal professional development.

Law Society - The Law Society of Scotland

Legal Services Board (LSB) - The Legal Services Board is an independent body responsible for overseeing the regulation of legal professionals in England and Wales.

Lawyer - The general term used to describe legal professionals such as solicitors, solicitor-advocates and advocates.

SSDT - Scottish Solicitors' Discipline Tribunal

SLCC - Scottish Legal Complaints Commission

Single complaints gateway - A single point of contact to make complaints about legal professionals.

Solicitor - A Solicitor is a member of the legal profession qualified to deal with legal matters. In Scotland, they are members of The Law Society of Scotland. A solicitor may represent clients in the Sheriff Court and Justice of the Peace Court, and may also instruct Advocates and Solicitor-Advocates.

Solicitor-Advocate - Solicitor advocates are solicitors who have been granted extended rights of audience before the higher courts in Scotland. In Scotland, they are members of The Law Society of Scotland.

The 1980 Act - Solicitors (Scotland) Act 1980

The 2007 Act - Legal Profession and Legal Aid (Scotland) Act 2007

The 2010 Act - Legal Services (Scotland) Act 2010

The Roberton report - The report of the independent review of legal services in Scotland.

The Roberton review - The independent review of legal services in Scotland.

The Rule of law - This refers to the concept that every person is subject to the law and that no-one is above the law, including people who are lawmakers, law enforcement officials and judges. It serves to protect the state from the actions of the individual and to protect the individual from the power of the state, and to do both without fear or bias.

Transparency - In the context of this consultation, explaining the purpose for regulatory activity and decision making improves trust and is integral to legitimate and successful governance, whilst promoting accountability.

Which parts of the consultation should I answer?

To make this consultation more accessible it is split into a Summary Consultation and a Main Consultation.

Summary consultation

A shorter and summarised version of this consultation paper, intended to be free of technical jargon and which covers the key areas that may be of most interest to consumers of legal services and the wider public. This has been designed with the intention of making it easier and quicker for those who wish to respond to this consultation. A background section helps provide context for less accustomed readers.

Main Consultation

The main consultation is longer than the summary consultation. It covers the same broad areas as the summary consultation. However the main consultation covers wider areas of regulation and in more detail whilst asking more questions, often about how an aspect of legal regulation should work in a more specific context. A background section helps provide context for less accustomed readers, but this main consultation does rely on jargon in order to ask these questions and may take longer to complete.

Responding

You don't need to read all of this paper, or answer all the questions, unless you want to. We know that different people will be interested in different issues. We have set out different parts of our proposals in different sections in this consultation. You can skip to the areas you are interested in, and just answer the questions on those sections. The same importance will be placed on all responses.

You can fill out this consultation by answering all or some of the questions and sending it to us by email or by post. Please also include the Respondent Information Form, which is at the end of this paper. We need this so that we know what to do with your response when we receive it. Please note that you can choose whether or not we publish your name alongside your response.

If you would like to access the consultation online, you can visit Citizen Space at https://consult.gov.scot/

All respondents should be aware that the Scottish Government has to follow the Freedom of Information (Scotland) Act 2002 and would have to consider any request made to it under the Act for information about answers to this consultation.

To find out how we handle your personal data, please see our privacy policy: https://www.gov.scot/privacy/

After the closing date, we will look at all responses and considered them along with any other information we have. Responses will be published if we have been given permission to do so. An analysis report will also be made available.