Eye on the profession

To some it is a safety barrier against regulation being taken out of the hands of the profession altogether. To others it should be condemned along with the ABS reforms as spelling the death of professional independence. Either way, little has been said about the Law Society of Scotland’s Regulatory Committee since it was created just over a year ago. What is it doing, and who makes it tick?

Under the Legal Services (Scotland) Act 2010, s 133, Council is to arrange for its regulatory functions to be exercised on its behalf by the committee, at least 50% of which is to consist of lay members (persons suitable for appointment to Council, though they need not be Council members), and which must have a lay convener.

The convener chosen, once the committee had a few months’ work under its belt, was Carole Ford, an ex-headteacher from Kilmarnock (maths was her subject). Also a former President of School Leaders Scotland, a headteachers’ professional association, a member of the General Teaching Council and convener of its Disciplinary Committee, and a board member of Learning & Teaching Scotland, she can claim a fair grounding in governance issues, even if the legal profession was new territory for her.

“The Law Society of Scotland looked like a completely different arena for a similar kind of role, and that’s what interested me”, she says. “I do like learning about things, I’m a bit of a geek that way, and I’ve certainly found it interesting, learning about and working with the Society.”

All independent together

Has the pass of independence been sold? Ford insists that, as a fellow professional, she is alive to the issue – having experienced the GTC becoming detached from government and given a constitution as an independent body.

“It is a sensitive issue”, she comments. “It’s something that, in the current climate in society, all professionals are more aware of than they ever were before – of accountability and the fact that society is going to hold them to account, and how that is to be achieved.” Aware of the current legislation in the Irish Republic, which the profession there sees as involving a much greater risk of political control than there is under the Scottish or English Acts, Ford insists that in this matter she is on the side of the profession. “I do personally believe in professions regulating themselves, but it needs to work well if the public is going to have faith in it and that’s certainly the route I would prefer most professions to go down, rather than external accountability models.”

Overview

What comes within her committee’s remit? In effect it’s those committees of Council, now technically subcommittees of the Regulatory Committee, that deal with entry to the profession and the conduct of admitted solicitors: Education & Training, Admissions, Practising Certificates, Professional Practice, Professional Conduct, Guarantee Fund, Client Care, Client Relations. “It took us a while to get to grips with the last two, because to us they sounded like the same thing, and then we learned that one existed to deal with complaints that came in prior to the founding of the SLCC and it will gradually disappear”, she comments. “That’s one of the issues – it should be more transparent what these committees actually do. If you’re not imbued with it, it’s not immediately obvious.”

On the face of it, it’s a pretty heavy workload for a body that meets every two months – though that is currently under review. Does it have the resources? “I would say so”, Ford replies. “I think we’re very well supported by the staff of the Society, both by the chief executive herself and by the other full time members of staff. We certainly haven’t felt at any point that we were struggling.”

She adds: “I don’t think we’re here to mend any huge problem. We’re a refinement in the system, and we’re a refinement that society expects in the current climate – a more independent approach to regulation – and I think we can provide that.”

Nor has there been any problem, she assures me, of splits between the lawyer and non-lawyer members, the latter all being professional people from various disciplines, most of whom have been involved in governance issues.

The dividing line

Turning again to its working relations with Council, Council has to ensure that the committee exercises its regulatory functions “independently of any other person or interest”, but must not “interfere unduly” in the committee’s business. How does that work in practice?

“It’s taken us most of the year to try and resolve that”, Ford replies. “I would say that the role of the committee is most of the time working in conjunction with Council and other parts of the Society in a consultative way, actually being part of the process of arriving at decisions in relation to regulation. It has taken us a while to establish that the Regulatory Committee is really the last stop and should there ever be a dispute between Council and the committee, the committee does have the last power, although it would go to the Lord President [to appoint an arbitrator] if there was a stalemate. I can’t actually envisage us getting to that point, but it’s taken everybody a while to come to a kind of understanding of the role of the committee, because it’s a change from what went before.”

So to whom is the committee accountable? That proves a harder one to answer. As Ford points out, however, the committee is an integral part of the Society. “We’re not standing outwith the Society in the way for example that the SLCC is. That’s not us at all. But I also think that if this works well, it should demonstrate that there is no need for a completely independent body to regulate solicitors. I would hope we can show that that’s not necessary.”

Profession and the public

Some clue about the way the committee works, emerges when I ask about its role in the regulatory scheme the Society is preparing to submit to the Government to become an approved ABS regulator. “The very technical aspects of it are not our remit – that is work for lawyers – but our job is to see that the outcome, the impact of it, will be in the best interests of the public, and obviously of lawyers also. Because it’s in the best interests of the public that the legal profession is a thriving successful profession that the right people want to become members of, but our role in relation to ABS will be to look at the impact and what would the effect be on people who are going to make use of these organisations.”

Ford cites the issue of who can call their business “solicitors” as an example of where they will test impact on the public. “I would say the Regulatory Committee is trying to represent both the solicitors who have a personal interest in the outcome of a debate like that, but also the interest of the public who have obviously got an economic interest. There is this idea that the public only want something at the cheapest price they can get it, but I don’t think that’s true. The public want to feel that the people they are using are qualified to do what they say they are qualified to do, so I think we will be applying a commonsense view of how is this regulation likely to impact on people.” She laughs as she adds: “I think our view will be as sensible as just about anyone else’s!”

So also with the other things the committee has examined to date. It has started a process of reviewing the Society’s regulatory functions in turn, building up its working methods as it does so, “looking at how each subcommittee functions and how they regulate their part of the Society’s work, and satisfying ourselves that it’s working as it should”. And once they have mastered the various issues there, “we can start to take a more strategic view of regulation within the Society”.

To date, she adds, no hornets’ nests have been uncovered. Nor, though it is early days for this, have they yet found any significant gaps in regulation. Here again, while Ford accepts that the profession regards itself as already highly regulated, she does not believe it is unique in that. In any event, she adds, the real question is how effective that regulation is. “You can have a massive rulebook, but is everybody observing it? Is it possible to implement those rules or are they all sitting in a book somewhere and they’re more disregarded than regarded?”

Leaner and fitter?

“It might even be a question of slimmed down regulation once we’re up and running”, she adds – optimistically, I suggest. But she observes: “You can learn from what other professions have done, and coming from my background, the GTC has really done quite a good job of getting a lot of its regulation into a code of conduct, for example. Now that makes life much more straightforward for everybody, and also, as far as I’m aware, ICAS has in relatively recent years completely revamped its approach to regulation, so there are models we can look at. And if people feel overregulated, that’s something that maybe we need to look at, because that’s not helpful. You know, if regulation actually gets in the way of people doing their jobs properly, that’s not a good thing. But we’re too new to the game to think one way or the other what the situation is before us: that’s what we’re getting ourselves into, hopefully in the quite near future.”

On top of that, and appreciating that the legal profession has to pay for its own regulation, Ford is keen to ensure that it is all “running as leanly and efficiently as possible”. While the vexed issue of SLCC costs is not something her committee could readily tackle, she is keen both to avoid duplication of work with the SLCC, and in the longer term to bring the committee’s strategic overview function into play. “Our accountability to the public is a big plank of what we are trying to do, but so also is the efficient regulation of the profession.”

If the Regulatory Committee could be seen to be achieving that, it might overcome more than a few doubts over its legitimacy.

The 10 in charge

In addition to Carole Ford, the other lay members of the Regulatory Committee are James Allan, a chartered surveyor and the committee’s vice chairman; Professor Kay Hampton, a member of the Scottish Human Rights Commission who also sits on the full Council; Alan Plumtree, a chartered accountant; and Elaine Tait, chief executive of the Royal College of Physicians of Edinburgh.

The solicitor members are Alison Atack, Frank MacAuley, Jane MacEachran, Graham Matthews and Alistair Morris, all present or past members of Council.