Legal services regulation reform: consultation analysis

Introduction

Background to the Research

Legal services in Scotland are outlined and legislated for via the Legal Services (Scotland) Act 2010.^[1] This specifies that legal services include (a) the provision of legal advice or assistance in connection with (i) any contract, deed, writ, will or other legal document, (ii) the application of the law, or (iii) any form of resolution of legal disputes, or (b) the provision of legal representation in connection with (i) the application of the law, or (ii) any form of resolution of legal disputes. It does not include any judicial or quasi-judicial activities.

Following papers from the Law Society of Scotland in 2015^[2] and the Scottish Legal Complaints Commission in 2016,^[3] which set out proposals and priorities for reforming the Law Society's regulatory powers in relation to legal services, the then Scottish Government Minister for Community Safety and Legal Affairs commissioned an independent Review of the regulation of legal services in Scotland in April 2017^[4] (known as the Roberton Review).

The Review made 40 recommendations, most of which were focussed on applied areas - including entry to the profession, standards and monitoring, entity regulation and complaints procedures. However, the primary recommendation was:

"There should be a single regulator for all providers of legal services in Scotland. It should be independent of both government and those it regulates. It should be responsible for the whole system of regulation including entry, standards and monitoring, complaints and redress. Regulation should cover individuals, entities and activities, and the single regulator should be a body accountable to the Scottish Parliament and subject to scrutiny by Audit Scotland."

This primary recommendation represented a significant departure from the current model, and was a source of contention. Some stakeholders considered this to be an overly radical move, while others felt it was logical. The Scottish Government's response to the review^[5] recognised the differing views on this recommendation, and the implications this may have on the existing legal landscape in Scotland. The Scottish Government set out, therefore, to find some degree of consensus in order to move forward. A working group was formed, with key bodies who represent consumer interests, regulators and the legal profession, to discuss the issues, and a public consultation was conducted, the findings from which are presented here.

The Public Consultation

The public consultation set out three possible models for change - one based on the primary recommendation from the Roberton Review, and two alternatives. All options focus on the way in which legal services are regulated in Scotland, and the operation of the complaints process. The consultation sought views on these different options.

The consultation was open for 12 weeks, running from 1 October to 24 December 2021. A series of eight online focus group events were also conducted to gather feedback.

The consultation asked 55 questions, with several containing multiple sub-questions and/or consisting of both a closed and open element. As such, the consultation ultimately contained a total of 99 closed questions, and 50 open questions. The consultation was split into the following sections:

• Part 1: Strategic Change, Vision and key aspects of the regulatory model - Proposed Regulatory Model principles and objectives;
• Part 2: Regulatory models and landscape:
  • a) The Potential Regulatory models;
  • b) The Role of the Lord President and the Court of Session;
  • c) Regulatory Committees;
  • d) Fitness to Practice;
  • e) Legal Tech;
  • f) Client Protection Fund (Guarantee Fund);
• Part 3: Legal Services providers and structures:
  • a) Entry, Standards and Monitoring;
  • b) Definition of Legal Services and Reserved Activities;
  • c) Titles;
  • d) Business Structures;
  • e) Entity regulation;
  • f) Economic Contribution of Legal Services;
• Part 4: Complaints and Redress; and
• Part 5: Competition and Markets Authority Legal Services in Scotland Research report (although no questions were asked in relation to this part of the consultation document).

Respondent Profile

A total of 149 responses were received to the written element of the consultation, however, upon data cleaning the following issues were identified:

• One respondent had submitted two separate responses. It was agreed with the Scottish Government that the most recently submitted response would be included in the data analysis and the first response was removed.
• One organisation conducted a survey of their members, where they were asked to complete a sample of the consultation questions. Their response consisted of the 11 individual responses they received rather than a composite organisational level response. The 11 responses were extracted and treated as separate responses for data analysis purposes. They were also categorised as individual rather than organisational responses.

As such, a total of 158 substantive responses were included in the data analysis:

• 99 submitted via Citizen Space, the Scottish Government's online consultation portal; and
• 59 submitted via email (this included both responses which followed the main consultation document structure and non-standard responses which did not follow the set questions but provided more free-text discussion of the issues).

Overall, 101 individuals responded to the written consultation, and 57 organisations. As part of the data cleaning, organisational responses were coded by sector, with 47 (82%) identified as representing the legal services profession, and 10 (18%) represented consumers. The number of respondents by organisational sector is outlined in the table below (note: this has not been disaggregated by profession/consumer categorisation due to the small numbers in some categories which might risk identifying respondents).

In addition to the written contributions, a number of online focus groups were held to elicit feedback. Eight focus groups were conducted and included 32 respondents in total. This included 10 individuals from a consumer perspective, seven representatives from consumer organisations or those who supported consumers, four lay people who contribute to the work of the Law Society of Scotland, and 11 individuals from the legal services profession (including its regulatory bodies). Two of the eight focus groups were organisation based, and so included only representatives from those organisations (both representing consumers), while the rest were mixed groups and contained representation from across the different respondent typologies. The Scottish Government facilitated these focus groups and prepared written summaries which were provided to the research team for inclusion in the analysis and reporting below.

Caveats and Reporting Conventions

While no campaign responses were received for this consultation, there was evidence of coordination of responses. Mostly, this was respondents supporting the Law Society of Scotland's organisational response - some had adopted part of the Law Society's qualitative responses at individual questions, others indicated their support for this on a question by question basis by referencing the Law Society's response rather than replicating it, and others did not respond to the set questions but provided a non-standard response which endorsed the entirety of the Law Society of Scotland's response and added some additional, more general information of their own. As responses were not identical, all such submissions were treated as unique and considered within the main data analysis, and are captured within the reporting below.

In addition, a few respondents advocated the responses from the Faculty of Advocates and the Scottish Law Agents' Society. Here, and for those who advocated the Law Society of Scotland's response, where respondents indicated that another organisation's response should be treated as their own, all data were replicated within the analysis dataset for these individuals (both qualitative and quantitative). However, where no such instruction was provided and respondents simply endorsed/supported another's response, the volume of those who supported the qualitative sentiments were noted at each question, but quantitative responses were not replicated in order to avoid misrepresenting respondents' views.

Findings are presented as they relate to each question in the consultation. Where individual respondents offered views at the open questions that differed from those submitted by organisations, or where views differed between the different organisational sectors, this is identified and outlined in the narrative of the report. Disaggregate analysis between individual and organisational views was, however, confounded by the overlap in respondent roles. For example, a large number of individual respondents replying on a personal level also worked in a professional capacity within the legal services sector. For example, the views of individual solicitors were not significantly different from law firms who had submitted an organisational response. Similarly, the views of those who responded as individuals in a consumer capacity were often similar to consumer-focussed organisations. As such, the differences between individuals and organisations were minimal, with differences tending to be driven more by their profession/consumer status.

As individuals were not asked to identify their interest in the consultation (i.e. as a legal professional or a consumer/member of the general public), it was not possible to categorise all individuals' status to perform disaggregate analysis at this level. Similarly, it was not possible to tell whether responses were more biased towards one respondent group or the other. However, the organisational responses did represent a higher number of respondents from the legal profession compared to consumers. As such, there is a risk that consumers' views may be under-represented within the consultation and analysis presented below.

Some respondents opted not to answer closed questions but did offer open-ended responses to the same question, meaning that there was not always a direct correlation between the number of people who supported/did not support a particular statement and the number of people who gave a qualifying comment. For fullness, all responses were included in the analysis, even where the closed component of the question had not been answered.

It should also be noted that some respondents indicated either a lack of information in the consultation document to allow them to provide informed responses, or difficulty in interpreting information, questions and response options provided. There was also considerable repetition between responses given at different questions. Such issues have been highlighted where relevant, and a few questions have been collapsed together in the analysis below to avoid significant levels of repetition at related questions.

The quantitative results presented throughout the report represent the proportions of those who responded to each question, not proportions of all consultation respondents. The per question sample sizes are noted either below each chart or (for multi-part questions) within the chart axis. Not all tables and charts add to 100% due to rounding.

Focus group questions generally followed the main consultation questions, although differences are noted in the narrative of the analysis where necessary. Not all questions or sections of the consultation were covered in the focus groups, and there were differences in the questions asked between groups. As such, some of the focus group results are based on small numbers of attendees rather than representing views common to all sessions.

There was evidence of some respondents participating in the consultation in multiple ways, i.e. submitting a consultation response and attending a focus group. In such cases, all input has been considered and included here for completeness, but this should be borne in mind when considering the results.

Finally, the findings here reflect only the views of those who chose to respond to this consultation. It should be noted that respondents to a consultation are a self-selecting group. The findings should not, therefore, be considered as representative of the views of the wider population.