Viewpoints: August 2023

We need Roberton

Selected points from solicitor Brian Inkster’s submission on the Regulation of Legal Services Bill, proposing an alternative approach

On an independent regulator 

The principal recommendation of the Roberton Review that an independent regulator should be created was, by far, the best option for regulatory reform of legal services in Scotland. There are clear conflicts of interest in a representative body also being a regulatory body. Different jurisdictions around the world are now accepting that the functions need to be separated. For Scotland to ignore that is bizarre to say the least.

The key principle of good regulation according to the Competition & Markets Authority is that regulation should be independent of those it regulates.

However bad their regulatory oversight is (and clear and unambiguous failings do exist), the Law Society of Scotland will defend that to the hilt to the detriment of their members. This is the conflict that exists, and will unfortunately and unnecessarily continue under the current proposals.

On complexity 

The current regulatory landscape in Scotland is too complex. Adopting the Roberton recommendations would have simplified it. Nothing in the bill, as introduced, does anything to do that. The proposed division of regulators into two categories just adds an unnecessary degree of complexity to something that could be simplified completely by adopting Roberton’s principal recommendation.

On ministers’ powers under ss 19 and 20

Oversight is necessary and currently lacking. The Society’s response to this issue is a clear overreaction. These powers are a last resort with checks and balances, and the Lord President would be involved. Should any regulator not have some form of oversight in case it is failing in its duties?

On complaints

The main deficiencies in the current system are: if a complaint is lodged late it should be ineligible, with no discretion allowed; time limits for responding are not applied fairly; the SLCC treats as service complaints potential professional negligence claims, which are something complaint handlers are not equipped to deal with; mediation of complaints is not compulsory, but should be; and the £5,000 fee if a matter is upheld by a determination committee is used unfairly to persuade solicitors to accept settlements that are not necessarily fair and reasonable. I do not believe the proposals in the bill are sufficient to address these issues. 

On ABS 

The bill proposes to change the rule on solicitor ownership of alternative business structures from 51% to 10%. That is simply daft and yet another fudge by the Scottish Government. There is no good reason why there should not be parity with England & Wales. The rule should be removed entirely.

General 

In general there is very little positive about the bill but plenty that is negative. If there remains any opportunity to revisit the primary recommendation of the Roberton Review that should be done. An independent review in New Zealand (the Paterson Review) has very recently recommended a new independent regulator. It will be a sad indictment for Scotland if we ignore the Roberton Review but in New Zealand they accept the Paterson Review.

The full response is at thetimeblawg.com