Roberton – a way forward?

Giving the Society’s response to Esther Roberton’s report on the regulation of legal services, the President proposes a way to achieve reform without the cost and upheaval of a new regulatory body

21st January 2019 | Alison Atack

It is now three months since Esther Roberton published her report on the regulation of legal services.

Here at the beginning of 2019, I have real optimism. There is a fantastic opportunity flowing from the report to drive forward improvements to the regulatory framework. The Law Society of Scotland has long championed the need to modernise the current patchwork of regulation, much of which is almost 40 years old and increasingly ineffective in addressing the issues in today’s legal sector. It was why we approached the Scottish Government back in 2015 to argue that reform be made a priority. It was this approach which ultimately led to the Roberton review.

When I met Ash Denham MSP, the minister responsible for deciding on the next steps, it was clear she is approaching this with an open mind and a listening ear.

I emphasised how the Society agrees with the majority of the Roberton recommendations. I welcomed her call for more flexible legislation. Reforms around entity and cross-border regulation were central to the Society’s submission to the review. I was pleased to see these suggestions endorsed.

However, I also explained my belief that Roberton’s central recommendation of a new single regulator for the whole of the Scottish legal profession risks increasing costs for consumers and weakening professional standards.

Marks of success

We already have a highly competitive legal sector, with nearly 1,200 private law firms, overall employment of 24,000 people and an annual economic contribution of more than £1.5 billion.

Scotland’s legal profession attracts respect at home and around the world. Independent research shows that nine in 10 clients of Scottish solicitors are satisfied with the service they receive. Trust in the solicitor profession as a whole stands at 81%, notably higher than similar research showing only 48% trust in the legal profession in England & Wales.

This hard-won success was recognised in Roberton’s report where she said: “Scotland is home to a well-educated, well-respected legal profession with a high degree of public trust of which I believe we can be rightly proud.” She went on to say: “There is little evidence of wrongdoing in the current model”. As such, I do not believe Roberton has provided the kind of convincing evidence that would be expected to justify her main proposal, which would involve significant upheaval, uncertainty, and increased cost for consumers. This view is shared by the overwhelming majority of members who have contacted the Society over the last few months in response to the report.

Learn from experience

On costs, just look at the SLCC. When this was established in 2007, it was expected to cost approximately £1.2 million per year. Its most recent annual report shows a cost of almost £3.1 million. Over the last three years, the SLCC’s levy on Scottish solicitors has increased by 24.5%.

Additional costs are not only bad for consumers, they risk undermining the international competitiveness of Scottish solicitors and legal firms. With all the uncertainty in our economy today, this is the last time to build in even more unnecessary costs.

The proposed new regulator, appointed by politicians, also raises questions around the rule of law and the independence of the legal profession. Indeed, following a review, the Government of the Republic of Ireland specifically rejected a regulatory model similar to Roberton’s proposal. It agreed that the Law Society of Ireland should continue to have a central role in the regulation of solicitors there. Concerns around the rule of law and independence of the profession were major drivers for this decision.

Our preferred approach

I believe there are alternative reforms which would improve the regulatory system, enhance consumer protection, and importantly, protect the competitiveness and economic vibrancy of the Scottish legal services market. The reforms which the Society is proposing to the Scottish Government can enhance Scotland’s growing legal services market. In particular, our suggested changes to the complaints-handling system offer a real opportunity to address some of the core issues which have created most concern, both among the public and the profession.

Our proposals would transform the SLCC into a Scottish Legal Ombudsman Service that could concentrate properly on dealing with consumer complaints thoroughly but swiftly. That ombudsman could give the necessary focus to consumer redress and issues of compensation. This would allow the Society to continue its strong track record of addressing issues of professional misconduct and prosecuting for discipline. This kind of system is similar to that which exists and works well in England & Wales and was recently adopted in Northern Ireland.

I have now written to the Scottish Government on behalf of the Society’s Council setting out these views. I am looking forward to hearing more from the Government in terms of its response. While the report’s recommendations have provoked strong and varied views, I believe there is a powerful and positive opportunity to build a consensus around reform.

This can ensure the Scottish legal sector remains one of our country’s proudest economic and social success stories.