Faculty strongly opposed to new regulatory body
A new independent regulator for all legal services "would not have a positive outcome for the public", the Faculty of Advocates believes.
Responding to the Scottish Government’s consultation on legal services regulation reform in Scotland, the Faculty says there would be "no benefit whatsoever" in casting aside its centuries-old system of regulation of entry to the profession of advocate and maintenance of standards at the bar, which it undertook "at no cost to the public, and with no evidence of any difficulties".
"It would in fact be less efficient, less knowledgeable, more unwieldy and more costly than at present", commented Dean of Faculty Roddy Dunlop QC.
The Roberton review proposed a single independent regulator for all legal services, including advocates. That is one of three options put forward in the consultation paper, along with the professional bodies continuing to regulate subject to varying levels of external oversight.
Mr Dunlop said that a new body responsible for registering advocates and for their admission to the profession "would mean the end of the role of the court, and the end of the public office of advocate. That would be an act of vandalism. It would involve taking a profession that has for centuries been actually and visibly independent of the executive, responsible only to the independent judiciary, and making it instead answerable to a different body, which itself is unconnected to the judiciary. That would be such a retrograde step, with no countervailing benefit, that it cannot sensibly be supported".
He continued: "Faculty has no wish to be alarmist or hyperbolic in this regard, but is driven to stress this fundamental point: an independent referral bar is fundamental to the operation of democracy in Scotland. It cannot be sacrificed on the altar of perceived modernisation."
Faculty's response notes with regret that the status quo is not one of the options put forward. "Faculty considers that the current regulatory landscape ought to be maintained in respect of entry to, and the qualifications of, advocates; the setting of standards applicable to practice as advocates; and the monitoring of compliance with those standards. Significant change would be welcome, however, in respect of the current regulatory regime applicable to complaints handling, in relation to advocates, by the SLCC."
Of the other options, the "market regulator" model, with a separate body overseeing regulation by faculty, would still mean a "dilution of independence" and "unnecessary layers of complexity". The enhanced accountability and transparency model, with an independent regulatory committee within Faculty, would be "far and away the least objectionable, and the least obviously problematic", and even "might be seen as a way of enhancing the status quo"; though the new committee would be unnecessary as Faculty already has the equivalent in its office bearers and council.
"Faculty would willingly submit to greater reporting requirements if that is thought to be desirable", the response states.
A particular focus of the consultation is on complaints handling. Complaints of inadequate professional services are dealt with by the SLCC, under a regime Faculty criticises as too slow and as giving rise to numerous appeals which are not found with conduct complaints that it handles itself. Faculty proposes it should handle all complaints that pass the sift at the SLCC, subject to that body having oversight of its handling of them.
As regards conduct complaints, Mr Dunlop said that Faculty members who sat on its Complaints Committee and its Disciplinary Tribunal were "as with all advocates, fiercely independent, and do not constitute a majority in either forum. The Disciplinary Tribunal, for example, will have three lay persons; two members of Faculty; and a retired judge (whose independence is, as a former senator, beyond question) as chairman. There is thus a clear majority, with the chairman carrying the casting vote, made up of persons who are not practising members of Faculty".
If necessary, Faculty would be open to considering proposals around the establishment of an oversight role, undertaken by an independent ombudsman or the like, regarding the way complaints are handled.
“We do not believe such a function is necessary, given the existing direct oversight of Faculty by the court", he added. "But if it were thought necessary, from the point of view of public confidence, to have the further protection of such oversight by an independent body, then Faculty would of course cooperate fully."