Editorial: Regulator reprise

As 2023 emerges a little dazed from the wreckage of 2022, I wish each of you good luck through whatever situations will face
us next.

In one respect, for the Society and the profession, the mists of uncertainty have lifted somewhat. The Scottish Government, which is developing a habit of slipping out major announcements affecting the legal profession just before Christmas, chose that time to reveal that the different branches of the profession will not after all become subject to one single, external regulator as desired by Esther Roberton in her 2018 report. Instead, the model for the future will be not unlike that in place at the Society since the Legal Services (Scotland) Act 2010, with a lay-chaired Regulatory Committee, operating independently of Council.

Little was said about why this outcome has been preferred. But for the moment, the defenders of a legal profession free from the risk of politically motivated governance have won the day over those who advocate the separation of the professions from their regulators.

I have previously argued that independence lies at the heart of this debate: on the one hand the fundamental importance of an independent legal profession, and on the other, the belief – equally an article of faith for some – that regulation should be independent of the regulated. Reconciling those two principles has been proving a decidedly elusive task.

An argument can be made that the proposed new-look Regulatory Committee – with enhanced duties of consultation and annual reporting, bound to uphold a lengthy set of regulatory objectives, and subject to the Freedom of Information Act as well as the oversight of the Lord President – will find little room to hide when it comes to being seen to act independently and in the public interest. At the end of the day, nonetheless, it will remain formally part of the Society (or other professional body qualifying as a first tier regulator), and perceptions of how it operates will no doubt continue to have significant influence in shaping public confidence.

It would be fair to say, therefore, that in choosing this option the Government is placing considerable trust in professional bodies such as the Society in asking them to deliver its vision of a “modern, forward-looking model for legal services regulation”. Its stipulation for evidence of improvements in regulation suggests that quite a high bar will be set. 

The onus will lie principally on the Regulatory Committee, but also on the Society and its members, to keep the system running at optimum level. But as the consultation outcome apparently favoured by the majority of the profession, it is a challenge that should be tackled with enthusiasm.