Opinion: Conflict, but where?

Chris Kenny, first chief executive of the Legal Services Board (E&W)

“I speak from bitter experience that the structure in England can be almost impossible to explain to a layperson… it follows from this that the more authority-claiming bodies there are in the field, the less confident the vulnerable consumer or confused citizen will feel in knowing who is protecting his and her interest – and the more cynical market participant will look with glee at the scope for gameplaying to delay action being taken promptly…

“especially in such a small jurisdiction as Scotland, the scope for the reality and – almost as important when it comes to maintaining confidence – the potential appearance of conflicts of interest is also significantly heightened. Avoidance of this, I would assert, is as important in public policy terms as the cost efficiency and effectiveness analysis which the Roberton report quite rightly highlights…”

Law Society of Scotland (a number of individuals and firms expressly adopted its views)

“Far from there being a conflict of interest in a single professional body approach, there is a coincidence of interest. This is why the professional body model is used by so many other professions
at home and the world over.”

Scottish Legal Complaints Commission

“We understand that this model [in the bill] is the product of a search for consensus… We would note, however, that in building on the existing framework, the proposed model retains much of the complexity, cost and potential conflicts of interest of the current system.”

Competition & Markets Authority

“the lack of true separation of functions retains an inherent conflict of interest that is likely to undermine this ambition [of independence for regulatory functions]. The CMA is concerned that, regardless of composition, regulatory committees do not deliver the required independence where they sit within a body that also carries out representative functions, and as such, cannot alone resolve the intrinsic conflict of interest…. This is supported by the experience of England & Wales”.

Professor Stephen Mayson (individual submission)

“There is an inherent conflict of interest where the same body is responsible for both representing and regulating its members… the perception of this conflict is as important as the reality… the conflict might not arise, but if it is still perceived to exist by those for whose benefit and protection regulation is intended to operate, the conflict remains…

“In my view, the true purpose of regulation is to set and enforce the minimum standards below which any provider of legal services may not fall… In this context, securing high ethical standards and excellent services should not be the role of a regulator – though it can remain as the aspiration of a professional body – and therefore the representative and regulatory positions are in conflict… consumers do not, in every situation and at all times, need excellence (or need to bear the costs associated with it).”

Faculty of Advocates

“The Faculty of Advocates has a number of roles, encompassing admissions and training, complaints handling and discipline as well as providing support to its membership in various ways… All members have an interest in the institution maintaining high standards of professionalism and behaviour and in there being public confidence in the Faculty and its processes. Understood in that way, there is no conflict at all.”

Brian Inkster (individual submission)

“The Law Society of Scotland and the Faculty of Advocates are already completely conflicted in being both representative and regulatory bodies… However bad [the Society’s] regulatory oversight is (and there are clear and unambiguous failings that do exist), they will defend that to the hilt to the detriment of their members. This is the conflict that exists… It is a conflict that could and should be immediately removed by adoption of the principal recommendation of the Roberton Review.”

Senators of the College of Justice

“The Roberton review proceeded on the fundamentally flawed premise that the legal profession in Scotland regulates itself. This is incorrect. The regulator of the legal profession is the Court of Session in the form of the Lord President… a regulator who is independent from government and parliament and independent from those whom he regulates. Limited self-regulation by the professional bodies is controlled by the Lord President, as the ultimate regulator. The principal recommendation of the Roberton Review… would have created an unwarranted and unacceptable interference by the government and parliament with the judiciary… Its lack of understanding surrounding the Lord President and the court’s role, and the fundamental democratic principles which underpin them, mean that the Roberton recommendation was never viable…

“The Scottish ministers have been directly involved in 4,121 cases in the Scottish courts between 2018-19 and 2022-23… High profile litigations involving the Scottish Government are routinely heard… If the bill is enacted in its current form there will be a clear conflict of interest for the Scottish Government; the Scottish ministers will have the power to control the activities of lawyers acting for and against them.

“Further complications would arise because of the possibility of disagreement between the Lord President, acting as independent regulator, and the Scottish ministers acting as a regulator lacking independence due to their conflict of interest.”