Regulation views still polarised: consultation analysis
Divisions between those supporting and those opposing a new professional regulator independent of the legal profession in Scotland continued in the responses to the Scottish Government’s consultation on various options, the newly published analysis of the responses has revealed.
The proposal was made in the report of the Roberton review in 2018, with bodies representing consumer interests largely supporting the reform while the professions themselves have maintained opposition on the ground that professional independence would be at risk from regulation by a body directly or indirectly appointed by government. They maintain that it would be enough for additional transparency to be introduced to present arrangements, as proposed in the government’s third option.
The analysis reveals that there was little support from either body of opinion for the Government’s option 2, a halfway house with an independent body undertaking part regulation and part oversight. “Proceeding with option 2 as a perceived ‘middle ground’ could result in significant resistance from all sides as the perceived failings of their least preferred model would still be incorporated within option 2”, the report states.
It describes opinion as “polarised”, as “Typically, although not exclusively, consumers and those representing them tended to agree with the primary recommendation, supporting option 1 [Roberton], while those representing the legal profession largely disagreed with the primary recommendation and supported option 3.”
There was strong opposition to removing the role of the Lord President in the regulatory framework, which was seen as important in safeguarding independence.
Regarding fitness to practise, most agreed that current requirements worked well, but there was near complete support for a test to ensure that non-lawyer owners and managers of legal entities were fit and proper persons. There was 80% support for the introduction of entity regulation, mainly for consumer protection, though some concern about how this would operate in relation to the third sector.
As for complaints, 87% supported a single gateway for complaints, but there were mixed views as to whether a single organisation should deal with all complaints throughout: 70% thought the professional bodies should retain a role in conduct complaints from an external complainer, and 76% in relation to investigation and prosecution of regulatory compliance issues.
Reactions
Responding to the analysis, the President of the Law Society of Scotland, Murray Etherington said: “The report shows widespread support for the reforms suggested by the Law Society of Scotland such as introducing entity regulation, retaining a role for professional bodies in the complaints system and recognising the important role of the Lord President and Court of Session in safeguarding the independence of the regulation of the legal profession.
“The regulatory system needs to change because of unnecessarily complex processes and outdated procedures from 40-year old legislation. The system for handling legal complaints in particular is cumbersome, complex, and costs too much. Meanwhile, rigid regulatory processes restrict our ability to step in quickly to protect the public interest. The Scottish Government should focus on addressing those issues on which there is consensus among all respondents, and introduce changes which could be progressed quickly through the Scottish Parliament.
“We are committed to continuing to work with the Scottish Government and others in the legal services regulation space to modernise the regulatory system and protect the public interest.”
Neil Stevenson, chief executive of the Scottish Legal Complaints Commission, said it was vital that all voices in this debate were heard. “Since 2016 the SLCC has been setting out a bold vision for the future of legal services regulation. We continue to believe that the current regulatory and complaints framework is in need of fundamental reform to create an agile, future-proof, responsive and proportionate model of regulation. We stand ready to work with Government and stakeholders across the sector to make that reform a reality.”