Editorial: Perceptions and practice

Holyrood’s Equalities, Human Rights & Civil Justice Committee has quite a job on its hands now. With all stage 1 submissions in on the Regulation of Legal Services (Scotland) Bill, deep divisions remain over the fundamentals of professional independence and regulatory conflicts of interest. 

As respects the latter, the argument is made by some seeking more radical (Roberton-type) reform that the perception of conflict of interest is as important as the reality. In other words, even if in reality conflict does not arise, if it is still perceived to exist by those for whose benefit the regulatory powers are intended to operate, the conflict still exists. 

It is interesting, curious even, that the Law Society of Scotland and Faculty of Advocates each make a case that there is coincidence rather than conflict of interest in the way they exercise their regulatory functions having regard to the interests of both their members and the public, without setting that exercise in any wider context. Only in the paper from the Senators of the College of Justice do we see the alternative view that it is the court (in the person of the Lord President) that is the true regulator, with “limited self regulation by the professional bodies” under his oversight. Roberton’s failure to understand this, the paper states, means that the review’s main recommendation was “never viable”. 

It would serve the public debate if Roberton’s supporters were to address this aspect of the present regulatory regime. The judges are correct that professional rules have to meet the Lord President’s approval; the court has little say, however, in their day-to-day operation by the professional bodies. If perception is the touchstone of public confidence, perhaps what is needed is a more visible supervisory role for the court, say in the form of a judicial tribunal – less formal and expensive than the court itself – hearing appeals by dissatisfied members of both the public and the professions. 

Their Lordships do not pull their punches about the “fundamentally flawed premise” of the Roberton review, though its recommendation for a single regulator continues to attract the support of most non-lawyers, and some lawyers, who offered views. Equally they set out the clear conflict of interest in ministers having the power to control the activities of lawyers acting for and against them – and the risk of differing views on regulation between ministers and the Lord President. 

The First Minister has said he “fundamentally disagrees” with the concerns raised, and widely shared, over ministerial powers. He would do well to rethink, not just from a domestic perspective but if he is serious about promoting Scotland’s standing internationally, given the alarm also expressed by those viewing the bill from outside Scotland. It might well be said that perceptions as opposed to practice are even more crucial on this aspect than on the nature of the regulatory body.