Legal services regulation reform: consultation analysis

Part 2(B) The Role of the Lord President and the Court of Session

Introduction

The consultation document set out the current roles and responsibilities of the Lord President and the Court of Session in relation to regulating the legal services profession in Scotland, particularly in relation to solicitors, advocates and the SLCC.

While the Roberton report did not make specific recommendations in respect of the role of the Lord President, it stated that the legislative approach should make clear what role the Lord President and the Court of Session would have in the regulatory framework. As such, the consultation sought views on the nature of the roles which the Lord President and Court of Session should have in any new framework.

Question 13

Q13. To what extent do you agree or disagree with the Roberton report, that the legislative approach should make clear the role of the Lord President and the Court of Session in the regulatory framework?

Base: 100

Of those who provided a response to the closed element of the question, most (84%, n=84) agreed that the legislative approach should make clear the role of the Lord President and the Court of Session in the regulatory framework.

Among those who provided a qualitative comment to this question however, there appeared to be some confusion around what was being asked. Several respondents interpreted the question to suggest that the role of the Lord President and Court of Session may change or that regulatory functions may be transferred elsewhere, with respondents noting strong opposition to any proposals which sought to alter or remove the role of the Lord President and the Court of Session:

"…the role of the Lord President under the present system is crucial and any steps proposed which weaken the role of the Lord President undermine the rule of law." (Organisation, Professional Body for the Legal Profession)

Others interpreted the question to mean that no changes to the role were being proposed, but that the role would simply be more clearly set out in the regulatory framework. In these circumstances, respondents supported such a move, primarily on the basis that it would maintain the status quo and possibly increase clarity, transparency and accountability (which would be in both the public and professional interest):

"All aspects of the regulatory system must be clear and transparent, including the role of the Lord President and the Court of Session." (Consumer Organisation, Third Sector)

A strong theme to emerge among both those who said that they 'agreed' and 'disagreed' with the proposal was the need for the role to remain independent from government and political influence, to protect and promote the rule of law and preserve the independence of the courts and legal profession. The main caveats or reservations linked to this question were that:

• The role of the Lord President would be too difficult to define on a statutory basis/that strict definition could be too restrictive;
• Any change may be interpreted as a move away from the principle of the independence of the judiciary and legal profession; and
• The current arrangement was sufficient:

"…both the Lord President and the Court of Session perform roles which have been developed by case law which cannot be easily codified in legislation…Attempting to capture the entirety of the Lord President and the Court of Session's role in a new regulatory framework will be an extremely challenging task." (Organisation, Professional Body for the Legal Profession)

Only two respondents hinted that they perceived the oversight role of the Lord President to be inappropriate or unnecessary. Overall, the dominant view was that clarification and affirmation of the role in statute would be beneficial and that transparency in roles, functions and powers would build further confidence into any revised framework.

Question 14

Q14. To what extent do you agree or disagree that the role of the Lord President and Court of Session in the regulatory framework in Scotland is important in safeguarding the independence of the legal profession?

Base: 98

Consistent with responses provided to Q13, the majority of respondents who provided a response agreed (84%, n=83) that the role of the Lord President and Court of Session in the regulatory framework in Scotland was important in safeguarding the independence of the legal profession. A large number viewed the role as essential in ensuring competence, integrity as well as neutrality, and indicated that this would maintain the status quo.

Again, independence from government was cited by several as essential, i.e. a profession regulated by politicians or persons appointed by politicians would not be independent in any way:

"A regulatory body for legal services which is answerable to Scottish Parliament has the potential to undermine the separation of powers in our constitutional arrangements and endanger the rule of law, where the courts and professions independence of itself is an important safeguard." (Individual)

Comments were also made that the roles currently fulfilled by the Lord President and Court of Session worked well with them sitting at the top of a very well-respected judiciary, with clear impartiality. The role of the Lord President and Court of Session were also described as reinforcing the doctrine of the separation of powers, long recognised as a supporting pillar of the rule of law:

"The roles of the Lord President and Court of Session are essential for the protection of the independence of the legal profession from the Scottish Government and Parliament. That is entirely consistent with the essential preservation of a separation of powers." (Organisation, Legal Services Provider)

A small number caveated their support by suggesting that there may be some instances where oversight by a party who is not involved in the legal system may be more appropriate. For example, it was suggested that a distinction could be drawn between 'public good' and 'consumer protection' legal services, with the former regulated by judges and the latter possibly regulated by a non-judicial body:

"In the main, we are of the opinion that Lord President and Court of Session do have a role to play in safeguarding the independence of the legal profession, however there are some instances where oversight by a party who is not involved in the courts as a practitioner, or judge, may be beneficial." (Organisation, Professional Body for the Legal Profession)

Another comment included the importance of any regulator staying in touch with the general public to foster confidence and acceptance in the system. Very few respondents who disagreed qualified their answers, with the main reasons being that the legal profession did not deserve the privilege of safeguarding or independence, that the role should be fulfilled by the elected Scottish Parliament and that there should be separation of powers so that the legal profession does not regulate itself.

Four respondents expressed views that there was insufficient information in the public domain to allow an informed response to this question to be made and/or noted that they did not understand the question or were not knowledgeable enough to answer.

Only one focus group provided views on this question and attendees largely agreed that the Lord President's role should remain as this provided helpful oversight and independence.

Question 15

Q15. Should the Lord President and Court of Session have a 'consultative' role, or 'consent' role with regard to the following potential changes to the operation of any new regulatory framework?

Less than half of all respondents provided a response to the closed element of this question. Of those who did, views were split relatively evenly in relation to 'changes in professional rules' and 'new entrants to the market' between those who preferred a consent role (51%, n=39 and 50%, n=37 respectively) and those who preferred a consultative role (49%, n=37 and 50%, n=37 respectively). In relation to changes to 'complaints practice and procedure', however, more respondents preferred a consultative role (62%, n=46) to a consent role (38%, n=28) for the Lord President and the Court of Session.

Among those who supported a 'consultative' role for all three operations, the main view was that this would potentially be 'fairer' for complainants and those seeking entry to the system, with concerns that a consent role gave too much power to one party and/or could be easily biased:

"The consent role could constrain progress and innovation and be biased in favour of the courts." (Individual)

"Our particular reason for having a 'consultative' role following potential changes to the operation of any new regulatory framework would be to ensure that standards being applied were consistent, and evidence based, and that there was no resistance to new entrants simply because of traditions." (Organisation, Professional Body for the Legal Profession)

Others suggested that the consultative role would be less cumbersome than the current role, and viewed that there was scope for a more simplified, flexible and responsive system. Those who supported a 'consent' role for changes to professional rules, changes in relation to complaints, practice and procedure and new entrants to the market also provided additional comments that this was necessary to prevent political interference on all levels. It was also seen as ensuring clarity regarding power, preserving the status quo and reducing potential for dispute in any alternative model:

"…the Lord President and the Court of Session have a direct and vital interest in the conduct of matters in court and in the conduct of those who practice before them and who hold public office…For that role to be fulfilled in a meaningful way, it is necessary for the Lord President to be able to intervene where necessary. It can be expected that that power will be exercised judiciously. Limiting the role to a consultative one places too much distance between the Court and the regulator and runs the risk of creating an unhealthy and counter-productive divergence of view." (Organisation, Professional Body, Faculty of Advocates)

Among this cohort, it was felt that nothing would be gained from reducing the position of the Lord President and the Court of Session to a consultative role for any of the stipulated operations.

Only a small number supported a 'consent' role for professional rule, practice and procedure matters but supported a 'consultative' role in relation to complaints:

"We think that there's the strongest case for consent in relation to the third entry here, due to the litigation and right of audience component. We consider that the second entry is more suited to a consultative role, as it doesn't clearly relate to the role or functions of the Lord President or the courts. With the first entry (changes to professional rules), the position is perhaps more nuanced, as some aspects of this, relating to, for example, court rules, practice and conduct, are most appropriately dealt with by a consent role, whereas others may be more suited to a consultative role." (Organisation, Third Sector Legal Profession)

Similarly, a very small number expressed that there should be a consultative role for professional rules and complaints, but a consent role for new entrants to the market. It was suggested that this may provide a more appropriate balance and help remove some of the Lord President's power and influence, in particular in relation to business practice.

Other, more general comments included that the current model should be maintained but that more flexibility could be built in, i.e. be made more consultative than consensual as required, if matters require a more agile response.

Again, a small number of respondents stated that they believed there should be no role for the Lord President and Court of Session in relation to any of these matters (and expressed that these roles should instead be fulfilled by government or an alternative independent body).

One focus group also provided comments, specific to the Lord President's role in relation to new entries to the market. They suggested that this role should be removed from the Lord President as they felt there were times where conflicts of interest arose and that it might make it more difficult for new entrants to the legal system. Instead, they argued that an independent ombudsman could look at whether or not a case had been made for a new body to enter the market, then the Lord President could give views on what standards might be required.

Question 16

Q16. To what extent do you agree or disagree that the Lord President should have a role in any new regulatory framework in arbitrating any disagreements between independent Regulatory Committees and the professional regulatory bodies?

Base: 94

Nearly three quarters (71%, n=67) of those who responded agreed to some extent that the Lord President should have a role in any new regulatory framework in arbitrating any disagreements between independent Regulatory Committees and the professional regulatory bodies.

Among those who agreed with this proposal, the main reason given was that it was essential (especially for public confidence) to have an independent arbiter in cases of dispute to maintain independence of the system (and that the Lord President was the only individual who had the necessary trust, political independence and expertise to discharge such a function). Again, it would maintain the status quo:

"Currently the Lord President has an independent role in resolving such disputes and in our view it is difficult to think of a more appropriate means of arbitrating in relation to any such disagreements." (Organisation, Legal Services Provider)

"…recognising that there needs to be a process should a regulatory dispute arise, we believe that, as the Lord President is independent of both the Regulatory Committee and the Council, then the current process, and the role of the Lord President within this, remains the most appropriate one." (Organisation, Professional Body, Law Society of Scotland)

Supporters of this proposal also made comments that this represented the most effective, efficient, economical and consumer friendly approach to arbitration.

The only caveats among supporters were that the exact nature of this role going forward would depend on the precise regulatory framework chosen, that the involvement of the Lord President was unlikely to be needed (based on historical evidence), and that the role may only be necessary for critical or serious matters (rather than minor procedural issues).

Those who did not support the proposal again stressed that the Lord President could never be seen as truly independent, and that this function did not represent a good use of the Lord President's time (especially if it could be fulfilled by a different professional arbitrator):

"Unless there is an issue that becomes a matter for judicial review, I believe that the Lord President should not become involved in such disagreements… judicial involvement runs the risk of external perception that the regulatory framework is still under the control of lawyers. It also risks compromising the perception of judicial independence and the operational independence of the structural elements of the regulatory framework." (Individual)

A small number reiterated that they did not support Regulatory Committees per se but that, if they remained, it should not be necessary for any arbitration role to exist within the system. One respondent expressed a view that if the Regulatory Committee and Professional Bodies disagree on a regulatory matter, the views of the Regulatory Committee should take precedence.

Two respondents indicated that further clarification was needed as to what was being proposed/the justification for any change and another suggested that the consultation did not fully address the relationship between the proposed Faculty Regulatory Committee and the Court. Several others indicated that they felt unable to comment at this question.

Question 17

Q17. To what extent do you agree or disagree that the Lord President should have a role in the process of appointment of any new 'legal members' to relevant positions, such as regulatory committees, in any new regulatory framework?

Base: 73

Views were relatively evenly split between those who agreed (49%, n=36) and those who disagreed (51%, n=37) that the Lord President should have a role in the process of appointment of any new 'legal members' to relevant positions, such as regulatory committees, in any new regulatory framework.

Among those who agreed with this proposal, the main reasons given in support were that there was a fundamental court interest in the process and the Lord President was the most suitably qualified to make assessments regarding appointments. The need to uphold judicial independence was again cited, and concerns regarding bias were dismissed by this cohort. It was also again stressed that maintenance of the status quo was desirable:

"The Lord President currently exercises functions in relation to membership of the SLCC. There is a value in having a check on appointments performed by an office holder who is both independent and well-informed. It is consistent with the Lord President's role within the legal system as a whole that he should have this nature of involvement in appointments." (Organisation, Professional Body, Faculty of Advocates)

The main caveats were, again, carefully managing any communications with the public to ensure that they had confidence in the impartiality of the Lord President in fulfilling such a role under any new framework, as well as views that the exact nature and exercise of this role would depend on the precise regulatory framework chosen. The role needed to be carefully defined, it was suggested (i.e. consultative or consensual) and there may be scope for a collaborative exercise wherein relevant regulatory committees have a role in recommending appointments, to be agreed with the Lord President (who would have final oversight):

"We believe it is appropriate that the Lord President is consulted on the appointment of any new 'legal members' to relevant positions, such as regulatory committees, in any new regulatory framework. The Lord President may have relevant insight or views into the appropriateness of a particular individual, or on the collective legal composition of any board or committee, which may well prove helpful to the individual or body carrying out the appointments process. However… in achieving a clear and transparent regulatory system, it is important that the way in which that is sought, and whether it is comment or consent being sought, needs to be set out clearly and transparently, so that everyone involved knows what to expect, how decisions will be made, and by whom." (Consumer Organisation, Public Body/Sector)

"I don't think it's for the Lord President to recruit, interview and appoint. I think the regulator should, through a nominations process, bring forward to the Lord President recommendations to appointment along with information about the process followed. The Lord President should have the power of veto." (Individual)

A more collaborative approach was seen as bringing with it more transparency and confidence for outside observers while retaining the profession's confidence in the system:

"If what is being considered here is that the Lord President should have a consent role for the appointment of legal members following recommendation by the LSS [Law Society of Scotland] Council then we would agree that that maintains the independence of such appointments, but reflects the sense and importance of retaining the Council's obligation to recommend appointees." (Organisation, Legal Services Provider)

Those who disagreed again suggested that they felt the Lord President lacked the required independence for this role and that others may be better equipped in this respect (e.g. the Law Society of Scotland):

"…I would strongly disagree that the Lord President should play any role in the appointment of any members - legal or lay - to any positions in a new regulatory framework. I do not regard this as a judicial function: appointments should be made in accordance with an open and transparent public appointments process." (Individual)

Appointments to any regulatory committees should instead be carried out through the public appointments process, it was felt, to ensure transparency. Having this role fulfilled by someone other than the Lord President was viewed by such respondents as mitigating or removing potential for complaints regarding "jobs for the boys" or cronyism.

Other comments made by just one respondent each included that:

• The Lord President had more pressing/important duties than appointing members to such positions;
• It should be for each of the legal professions to nominate legal members to relevant positions, such as regulatory committees, in any new regulatory framework;
• The interests of solicitors should be represented as well as advocates;
• It was not appropriate for the Lord President to have the power to remove the (lay) chair of the SLCC, or the chair of any other or any future independent regulatory body; and
• That there may be cases where it was appropriate for someone other than the Lord President to have final veto.

Again, several respondents indicated that they found this question ambiguous and therefore felt unable to provide a reliable or informed view. In particular, the question referred to the Lord President having a 'role in the process' but failed to expand on what that precise role would be, and some questioned whether this would be consultative or one of consent of appointment.