Journal editorial June 2023

It seems that the more one studies the Regulation of Legal Services (Scotland) Bill from a legal professional standpoint, the more flawed it appears.

That was the impression gained from attending the Society’s webinar last month on the bill, on which we report in this month's Journal. Not only from the headline concerns about the proposed ministerial powers to intervene directly in the regulator, and even in individual practices, which are indeed alarming – and it is believed unprecedented in a western democracy, whatever the circumstances in which they might actually be invoked. Not even from the provision that practice rules would need ministerial approval, from which one could say that having allowed the professional bodies to remain as regulators, the Government appears to be recognising professional independence on the one hand while taking it away with the other.

In fact there is much more. The Society believes that by extending to solicitor-owned firms the narrow definition of “legal services” in the alternative business structures regime, traditional practices would be unable to provide estate agency or incidental financial business services without the expense of separate regulation. The operation of the waiver regime would be hamstrung by a prohibition on it applying to any rule relating to conduct. Some of the flaws in the complaints system are left untouched. Most startlingly, big firms would be unable to operate in Scotland at all, due to lack of provision for their registered foreign lawyers.

That last matter is said by the Government to be an oversight, but the overall impression is that the drafters of the bill, and/or those instructing them, have not got to grips with the way the profession currently operates and is regulated, which is very worrying given the length of time it has taken to get to this stage and the time we would likely have to wait for any further amending legislation.

Meanwhile, the Holyrood committee inviting submissions ahead of its stage 1 report is asking why the Government hasn’t followed the Roberton approach of an independent regulator. Not that it is likely to bring about such a change to the bill – though MSPs on the committee have to decide whether to approve its general principles – but the profession will have to make its voice heard on a number of fronts if it wants to emerge with a workable regime.