Roberton: a better alternative

In the January edition of the Journal, Professor Lorne Crerar set out his view of the proposals contained in the Roberton report. We would take the opportunity to respond to that article.

In doing so, we attempt to explain why we respectfully believe that his views are both flawed and contrary to the interests of both the legal profession and its clients. More constructively, we set out an alternative and more confident vision for the future.

At the outset, it is important to make clear that we passionately believe in the Scottish legal profession, its critical importance to our country and its people, and that if we continue to make the right decisions about our future it can both survive and thrive in this modern world. It is perhaps ironic that Professor Crerar’s belief that English law and lawyers are overwhelming us comes at a time when both the President and Deputy President of the Supreme Court of the United Kingdom are Scottish lawyers, and when in the landmark case on prorogation, the view of the Inner House prevailed over that of the English High Court.

English competition

We do not for one minute dispute that some reform is needed. A process of review and improvement is always a good thing. The current system for dealing with complaints is not working for either the legal profession or, more importantly, the public. If we are to retain credibility as a profession, we must have a system for the handling of complaints which is seen to be both effective and independent.

One of the essential components of any society is access to justice in all its forms. That fundamental right is challenged right now, as our colleagues who practise criminal law and who serve the public in high street practices face ever increasing threats to their very existence.

But those considerations do not support what is proposed in the Roberton report. One of the main points made in support of the proposals is essentially that we require to be protected from English law and English law firms. Professor Crerar cites a number of firms which have been absorbed by English-headquartered or international law firms, or otherwise disappeared, as evidence of that. In his list he includes Ross Harper, Semple Fraser, McClure Naismith, Morisons and Tods Murray. While the demise of these firms is deeply regretted, each failed for very different and unrelated reasons.

To be clear, it is not the incursion of English-headquartered and international law firms and the choice of English law which is the major threat to the Scottish legal profession. The entry of these law firms into this market is simply competition. In many cases they retain a very substantial number of Scottish-qualified lawyers and trainees in our market. While some firms have sadly disappeared over that time, there are plenty of Scottish-headquartered law firms which, over the same period, have been successful in their home market, the UK and internationally.

The Society’s role

Professor Crerar seems to suggest that the solution to the challenges to which these firms succumbed, is the creation of a new super-regulatory body.

While the problems with the complaints system need to be addressed by effective and speedy reform, that does not mean eradicating the Law Society of Scotland. We have seen it adapting to the changing world with effective reform over the last decade. That must continue apace.

The Roberton proposal is for a new body reporting to the Parliament and led by someone appointed by the Parliament. By definition, that could never be seen as a body which was independent of government. The rule of law – the ability of the legal profession to act independently of and to challenge government when appropriate – is one of the most fundamentally important foundations of our society. We tamper with that at our peril. If we do, there is a danger that this will be used by some in other jurisdictions (including England & Wales) as a reason that clients should be wary of choosing our legal system or lawyers.

There is also an assumption that the proposals would be cost-neutral. That is hugely optimistic and unvouched. As one example, at the moment a large number of solicitors give of their time free of charge to support the activities of the Law Society of Scotland in ethics, regulation, research and reform. They do vital work, which includes reviewing, commenting on and, where appropriate, challenging draft legislation proposed by our Scottish Government. This input is of critical importance. It cannot be assumed that they would necessarily do so for a new quango. There must therefore be a legitimate concern that the fundamentally important role that is the scrutiny, challenge and improvement of legislation and regulation currently undertaken by the Society and committees on a voluntary basis would cease.

Forward with confidence

We should not be afraid of competition. That is after all what our clients would wish for and are entitled to. To prosper, we need to excel at what we do. Scotland has many precedents for leading the world, whether in the creative industries, life science or business. Law is no different. That will require us to develop new business lines and new ways of delivering our services. It will require us to be bold and innovative. While the scale of our resources as compared with English firms may be more

The poaching of our talent demonstrates that our legal education produces graduates who are widely respected and highly sought after. We have it in our power to create environments of excellence in which outstanding graduates thrive, can attain partnership – or not if they choose to – and engage in high quality work in and from Scotland. It is in our hands.

So what do we need to do?

• Overhaul our complaints system as soon as reasonably practicable.
• Continue to develop service lines that are relevant to the changing socio-economics.
• Recognise that everyone is entitled to access to justice and that that requires us to support our high street and legal aid practitioners, not just Big Law.
• Promote the profession and its importance within Scotland.
• More effectively promote the Scottish legal system and the profession internationally.
• Ensure that the profession and the legal system are not developed in a vacuum, but engage with those who are the users and practitioners of the future, creating and maintaining a profession which is relevant, diverse, inclusive and sustainable for all our futures.

We stand on the brink of major social, environmental and economic change, when the need for a strong, progressive, confident, distinct and independent legal system has never been clearer. This is a time for confidence, not self-doubt.

The views in this article are those of the authors and not the firms with which they are currently or were previously affiliated.

We also took the opportunity to seek the views of a number of those presently in senior management roles at the larger Scottish headquartered firms, and have received broad support for the principles articulated in it.

Challenging Professor Crerar’s approach, Donald Reid questions the desire to copy in Scotland the structures and practices of bigger jurisdictions elsewhere

The problem for ordinary practitioners, among whom I count myself, is finding the time to deal comprehensively with a topic as major as the Roberton report and Lorne Crerar’s championing of it in his article in the January issue. I have since read and broadly agree with Julia McPartlin’s challenge to Professor Crerar in her letter (Journal, February 2020, 6).

I have attended several meetings of practitioners at which Roberton has been discussed. At all of these Professor Crerar could have been present but wasn’t.

The overwhelming majority are opposed to regulation being removed entirely from the Law Society of Scotland and vested in a so-called independent regulator, or Government toady as it undoubtedly will become. Various reasons are expressed for this, and here I will attempt to articulate some of them.

Professor Crerar seems dismissive of those who disagree with him. He harks back to the home report debate of nearly 20 years ago, when last he was the Government’s choice as man of the match. He dismisses that opposition as uninformed, by which he appears to mean it was reluctant to embrace his own preferences. History, in my experience, has not proved him right, but that’s a different debate. He appears to be equally dismissive of the even more strident opposition to Roberton, and again we gain the impression that he thinks we are uninformed, narrow minded and frightened. This won’t do.

The legal profession in Scotland was a profession long before the Government in 1948 started to get involved in its regulation. The profession back then was well aware of the principles of honesty and integrity which should govern its dealings with its clients and among its own members. That is still the case. Back then, to have suggested that the members of this venerable profession were not to be trusted to determine who should be members, who not, and who should be expelled or disciplined would have been both ludicrous and impertinent. Yes, the world has moved on substantially since then, but the principle that we should be answerable most fundamentally to our peers remains vital.

Home grown is best

Scotland is a small country. It keeps surprising me how eager our Governments and glitterati seem to be to ape the practices of bigger countries as though the differences in size and culture don’t matter, and that we are incapable of forging workable solutions for ourselves. Roberton wants us to conform to “international best practice”, by which she seems to mean practice which she personally prefers.

The present arrangement for regulation, with the Regulation Committee chaired by an able, impartial but realistic convener, actually works well and there is no significant criticism at all of its operational effectiveness within Roberton. Her recommendation for a separate regulatory authority came out of the blue, to the surprise of many of her working group though not, it appears, Professor Crerar. It makes one wonder whether, Yes, Minister style, the report was commissioned on the basis of a pre-instructed outcome! Of course not.

Then there’s cost. The suggestion that implementing the report will be cost neutral is utterly laughable. Just look at the SLCC. It blithely helps itself to more money from us whenever the whim takes it. Sure, it offers its reasons, but clearly it couldn’t care less whether we believe them or not. Obviously the SLCC sees itself as the likely appointee if Roberton is enacted. Heaven help us.

I say this not in mindless denunciation of the SLCC. I regularly find its investigators conscientious and unfailingly courteous. But it is slow, ponderous, lacking in incisiveness and far too ready to treat routine infelicities as punishable failures. Compound these problems by introducing a similarly unaccountable separate regulator, and the annual subscription, already far too high in its funding of rampant regulation, will go through the roof.

Before the Government even contemplates enacting Roberton it should commission a (genuinely) independent assessment of the cost and financial impact of what it proposes. If it has it in mind to refuse this, then will it say why, when a cost and economic assessment is a fundamental requirement of any proposed new legislation.

Professor Crerar seems to think that in our blinkered opposition to Roberton we are turning our backs on glorious international opportunities. I’m afraid this is simply lost on me.

We just want to get on with serving our clients in a fair manner without bullying interference. Is that so bad?

Thank you for the opportunity to comment briefly on the two articles in response to my own. The purpose of my article was to “try and stimulate informed debate”, and I am very pleased it has done so.

“A better alternative” (Stephen Gibb, Philip Rodney)

For my part I see competition, from England or elsewhere, as positive for the profession and the consumer in Scotland, and there is absolutely no need to be protected from English law firms.

The view I was trying to express was that to be able to compete effectively we need to do so upon a level playing field of regulation. I believe in Scotland we are currently hamstrung by an antiquated regulatory system compared to our competition from other jurisdictions, principally England. The position I expressed was “To compete effectively, Scottish-headquartered firms need the capacity to innovate and be regulated in the same way as their competition by a regulator who acts independently of all of them”, and for the reasons I expressed in my article.

Costs of any new regulatory system were a key consideration of the review, recognising that it was a fundamental aspect that required to be satisfactorily addressed to achieve consensus amongst all stakeholders including the profession. The review deals with the matter in detail at chapter 9, raises a series of interesting observations, and concludes “that the global cost of the new regulatory system should not be more than the cost of the current system”: p 47. Clearly more work and diligence requires to be carried out by Scottish Government in this area to allay understandable concerns.

The authors outline positive future actions under the heading “So what do we need to do?” Interestingly, all of their proposals resonate, align or mirror the review conclusions. It follows that the only key area of contention with the review proposals remains the need or otherwise for an independent regulator, with consequent cost assurances.

“What Scotland needs”: Donald Reid

I don't believe this article was written in expectation of a response. Being part of the advisory group for the review was a huge personal and business commitment over an 18 month period. There were regular, frequent and long meetings. Large amounts of evidence and specifically commissioned research had to be considered as well as evidence heard from interested parties. It was a very interesting but time-challenging exercise. My article took a great deal longer to prepare than I had originally envisaged. I very much wanted the article to refer to as much authority/evidence/opinions from others to support the various views I set out. My article was designed to stimulate, not stifle debate.