Six years on, arguments continue over regulation and reform
A shake-up of the way the Scottish legal profession is regulated has been a long time in the offing, what with then NHS24 chair Esther Roberton being asked by then community safety minister Annabelle Ewing to carry out a review as far back as April 2017.
When she finally reported the following year, suggesting a new regulator be created, Roberton was met with a mixed response. The Scottish Government consulted on her proposals and, after what seemed like an interminably long pause, the Regulation of Legal Services (Scotland) Bill was finally unveiled earlier this year.
Anyone thinking it is going to have a smooth passage through Holyrood would be well advised to think again.
The initial aim of the overhaul was to enable non-lawyers to take ownership stakes in law firms – something that has been allowed in England and Wales since 2007, meaning legal practices south of the Border have been given a competitive advantage by being able to do things like raise cash via a stock market listing.
The 2010 Legal Services (Scotland) Act was supposed to pave the way for that to happen here too, but with no agreement on how such business entities should be regulated it never became a reality.
The focus more recently has shifted onto complaints, both so consumers who have received poor advice have an easy way of seeking redress and to ensure there are robust systems in place to deal with practitioners whose behaviour is thought to fall short of professional standards.
As part of that, the government has proposed changes that are designed to make the complaints system quicker and easier to navigate.
Perhaps unsurprisingly, the Scottish Legal Complaints Commission, which has always been one of the biggest proponents for change and one of the organisations most supportive of Roberton’s initial plan, is broadly in favour of the mooted changes.
Its chief executive, Neil Stevenson, said the proposed legislation marks a “significant step” towards creating a legal complaints system that is “more person-centred and proportionate” and that provides an opportunity to “build a culture of prevention, quality assurance and compliance in legal services regulation”.
Not everyone is happy, though. The Law Society of Scotland in particular has railed against proposed new powers that would allow Scottish ministers to intervene and direct regulators, calling it “deeply alarming” and saying it would risk exposing the legal profession to state interference.
“One of the most important roles of the legal sector is to challenge government on behalf of clients and hold it to account,” said then Law Society president Murray Etherington at the time the bill was announced.
“The proposed new power allowing Scottish ministers to intervene directly in regulation risks seriously undermining the independence of the legal profession from the state. This is clearly unacceptable and needs removed from the bill by the Scottish Parliament as the bill progresses.”
The bill is still at stage one, with the parliament’s Equalities, Human Rights and Civil Justice Committee having until the end of January 2024 to examine its contents and take evidence.
As if one problematic bill was not enough to create a headache for those operating in the justice space, the government has also brought forward another controversial piece of legislation that has had the legal profession up in arms.
The aim of the Victims, Witnesses, and Justice Reform (Scotland) Bill is to “try to improve the experience of victims and witnesses in the justice system” by, among other things, embedding trauma-informed practice in the courts and creating the office of Victims and Witnesses Commissioner for Scotland.
It is the bill’s intention to introduce juryless trials for sexual offences cases that has come under the spotlight, though, with legal practitioners united in their disquiet about what that could mean for the profession.
Solicitors have vowed to boycott a planned pilot of the scheme while Tony Lenehan, president of the Scottish Criminal Bar Association, has spoken repeatedly about how opposed defence advocates are to the plan.
Like the legal reform bill, the victims bill is still at stage one of the parliamentary process, which is due to run until the end of March. Both pieces of legislation are expected to come under intense scrutiny and debate as they pass to the next stage.