Legal services regulation reform: consultation analysis

Part 3(A) Entry, Standards and Monitoring

Introduction

The Scottish Government seeks to develop a regulatory framework that incorporates a greater emphasis on quality assurance, prevention of failure, which usually leads to consumer complaints, and continuous improvement for the benefit of the legal profession and consumers. The Roberton Report recommended that:

• It should be for the regulator(s), professional bodies and educational institutions to work together to set the educational requirements for entry into the various legal professions in Scotland;
• The regulator should have responsibility for setting standards and in doing so should drive a preventative/quality improvement focus, including simplification and better overall cohesiveness of the rules, making them more consumer friendly, comparable and proportionate; and
• The regulator should hold a register of those it regulates, and any lawyer, solicitor, solicitor advocate, advocate, or commercial attorney who wishes to provide legal services must be admitted to the register.

The consultation document sought feedback on the need to incorporate a greater emphasis on quality assurance, prevention and continuous improvement; whether the rules should be simplified to make them more proportionate and consumer friendly; and how to provide quality assurance and continuous improvement.

Question 31

Q31. To what extent do you agree or disagree that any future regulatory model should incorporate a greater emphasis on quality assurance, prevention and continuous improvement than the current model provides?

Base: 90

Of those who provided a rating, most (81%, n=73) agreed that any future regulatory model should incorporate a greater emphasis on quality assurance, prevention and continuous improvement than the current model provides. In particular, consistent with comments made elsewhere in the consultation, it was suggested that there was room to strengthen existing CPD requirements as well as to make the system more 'proactive' than the current 'reactive approach':

"In many areas the current model primarily focuses on the passive setting of standards, and intervention when things have already gone wrong. The new model should focus on creating a culture of quality assurance, prevention and improvement in the sector, which reduces the need for post-event action." (Consumer Organisation, Public Body/Sector)

"A greater emphasis on quality assurance, prevention and continuous improvement should help to reduce the number of complaints through offering identification of problems with practitioners at a much earlier stage. This means that either the practitioner is supported to address and rectify any issues or other remedial action, including, removal from practice should the issues continue, can be taken in early course by the regulator." (Consumer Organisation, Third Sector)

The main caveats were, again, that any updating of the existing model to provide 'greater' emphasis must be proportionate and not increase the costs to providers such that they cannot operate (especially for smaller operators and those offering mainly Legal Aid services):

"Whilst quality assurance is welcome, it is important to remember that with legal aid revenues so low, adding further burdens, will only lead to a reduction in service delivery, and further withdrawal of solicitors from the legal aid market." (Organisation, Legal Services Provider)

One respondent also queried if these factors should be prioritised and suggested that there were other elements of the system that should be strengthened with greater urgency, including, for example, improving access to justice.

Others observed that including 'greater emphasis' in any revised model would not necessarily guarantee compliance with any new standards, and that peer review may also function well to meet the desired outcomes around service improvement and public protection:

"Currently, not all solicitors are regularly subject to peer review. It may be worth considering whether the peer review arrangements which exist in relation to legal aid could be extended more widely across the sector." (Consumer Organisation, Public Body/Sector)

One respondent also commented that wider issues linked to professionals taking on work for which they were unqualified/ill-equipped may still not be mitigated by strengthening the model alone:

"Greater emphasis is required in identifying and supporting the kind of professional services by individuals and entities which they themselves have the capacity to provide." (Individual)

Among those who disagreed, the main reasons given were that there was no evidence/insufficient foundation for a need to change the current model (which was perceived as already placing appropriate emphasis on quality assurance, prevention and continuous improvement) and that the scope of the proposal was too ambitious (i.e. the regulator should deal with complaints only):

"Consistent with my view that the approach to regulation should pursue the minimum necessary intervention… there is a danger that the emphasis suggested in this question would inevitably lead to a higher level of required standards. This would add complexity and cost to the regulatory model, to the overall detriment of both providers and consumers for whom proportionate, targeted and cost-effective regulation is then less likely." (Individual)

Importantly, while this idea was supported in principle and seen by many as self-evident in ensuring high quality service provision, one respondent noted that agreement should not be taken as support for the Roberton Model in general.

Two focus groups were asked about quality assurance, but the question was worded differently to the main consultation document. They were asked if 'quality improvement [needed to be] built into the system so lessons can be learned and so rules can reflect where there are weaknesses?' Respondents provided mixed views. One attendee wanted to see greater communication and promotion of the good work done by certain bodies or regulatory committees, another wanted a significant change to the rules to address the issues with complaints, while another called for greater powers to ensure lessons were learned and changes made. Some also called for greater engagement, training and meaningful partnership working around specific issues (for example, domestic abuse), as well as better feedback loops to learn from what worked well and what was not impactful.

Question 32

Q32. To what extent do you agree or disagree that the rules within the regulatory framework should be simplified with the aim of making them more proportionate and consumer friendly?

Base: 90

Similar to the results at Q31, most (81%, n=73) respondents agreed that the rules within the regulatory framework should be simplified with the aim of making them more proportionate and consumer friendly.

In open ended comments, many simply cross-referenced their support for a stronger system as set out in Q31, or stated that any improvements to make frameworks more consumer friendly were welcome (especially if this meant writing things in Plain English and removing unnecessary legal jargon):

"Fundamentally, the easiest way to make the regulatory framework more consumer friendly is to deliver a clear, simple and transparent system that regulates in the public interest, taking into account consumer views." (Consumer Organisation, Public Body/Sector)

"We continue to believe that the perceived complexity, language used and the length of time to deal with complaints in the current system need to be addressed to ensure it is accessible for all consumers." (Consumer Organisation, Public Body/Sector)

A strong theme among both those who agreed and disagreed, however, was that simplification may inadvertently remove some of the nuance required to ensure there were no 'gaps' in the rules. Keeping the guidance 'tight' and technically precise was seen as more important than making it easy for the public to understand:

"The regulations are, in some cases, relatively simple and in others, quite complex. Complexity is caused by the subject matter and it is always a risk that in 'simplifying' for the sake of simplifying, interpretation and application becomes vague and unnecessarily difficult." (Individual)

"We can understand the value of making the rules more consumer friendly; however, the rules are directed towards solicitors and often deal with highly complicated matters, so it may not always be possible or straightforward to make them entirely consumer friendly." (Organisation, Third Sector for the Profession)

Making the complaints system easier to understand was specifically mentioned by a small number of respondents. One respondent expressed cynicism that proportionality and accessibility could ever be achieved, and another stressed that being 'consumer focused' was perhaps more important than being 'consumer friendly'.

Those who disagreed again mainly did so on the basis that the current system already worked well, was sufficiently accessible and comprehensible, and was kept regularly under review. Several others, again, stressed that they saw no need for change to the status quo.

Question 33

Q33. Which of the following do you think the regulatory model should incorporate to provide quality assurance and continuous improvement?

Base: 82

Of the respondents who selected an option at the closed element of this question, 12% (n=10) thought that the regulatory model should adopt a peer review method to provide quality assurance and continuous improvement, 16% (n=13) preferred a system of self-assessment for all legal professionals, and a further 45% (n=37) thought that both of these methods should be incorporated. Just over a quarter of respondents (27%, n=22) indicated that neither of these options were suitable and/or felt that another method would be more appropriate.

Among the small number who favoured peer review, the main reason given was that this would maintain the present approach (which was seen as working well):

"Faculty already has in place a Quality Assurance (QA) programme, which is designed to ensure a minimum standard of performance in core advocacy skills by way of five-yearly individual, peer-review assessments of all, including the most senior, practising advocates." (Organisation, Professional Body, Faculty of Advocates)

Peer review was also seen as being less open to abuse than self-assessment.

Among those who supported self-assessment the main reason was that this was already the favoured practice of many legal professionals, and was again seen as working well, especially from a business perspective. It was also described as being easier to implement operationally than peer review, as being more objective (and less influenced by/dependent on the opinions and experience of the reviewer), and as being more practical.

Among those who favoured a combination of both, this was seen as offering the most robust approach as well as maintaining the status quo:

"The current model incorporates elements of both peer review and self-assessment. We are not aware of any data to suggest that the current system does not work effectively. We accept that either peer review on its own, or self-assessment on its own, could be open to abuse and consequently we favour the inclusion of both, as currently is the case." (Organisation, Legal Services Provider)

Having peer review and self-assessment system backed up by the regulator undertaking spot-checks was, however, suggested:

"Peer review and self-assessment are useful but independent, external scrutiny by the regulator is vital." (Consumer Organisation, Third Sector)

Those who supported neither or other expressed cynicism that either peer review or self-assessment were effective, and/or perceived that both options represented the legal profession "marking their own homework". For this cohort, consumer feedback/experience was stressed as essential to a robust regulatory model.

A small number again questioned if any change to the current system was needed and others cautioned against any moves which would make the system overly complex or "hyper-critical." One respondent suggested this matter should be for the regulator to decide, while others simply suggested a flexible and responsive approach was needed:

"We would want to see the regulator develop a toolbox of methods and approaches, including these and others, as different tools will be effective in different situations and with different groups." (Consumer Organisation, Public Body/Sector)

Other comments (made by just one or two respondents each) included that:

• More detail on this matter should have been included in the consultation to allow more informed responses (including an assessment of the cost/benefits associated with different approaches);
• Improvements could be achieved without statutory intervention; and
• Any moves to strengthen and simplify the current model would be welcomed.

Again, focus group attendees were asked about these options in a different way - specifically whether "self-assessment/peer review could have potential to ensure lessons are learned if there are [repeated] complaints?" One attendee agreed that a system of peer review was required because they felt the rules were not strict enough and there were no checks to ensure practitioners operated in an up-to-date manner once they began practicing. However, it was stressed that checks needed to be proportionate to the size of the profession. Others agreed that some mechanism was needed to monitor the number of complaints received by firms in order to identify any persistent issues. Even low level complaints, when submitted repeatedly, could point to a problem which may need to be addressed, such as a need for improved communication or training. Some form of audit of complaints which have been handled in-house was also required, it was suggested.