The Debate on the Review of Legal Services Regulation in Scotland (aka ‘The Roberton Rammy’)

Roberton Review Debate - Legal Services Regulation in Scotland - RFPG - 13 February 2019On 13 February lawyers and others interested in the future of legal services regulation in Scotland (following publication of the Roberton Review) filled the grand hall of the Royal Faculty of Procurators in Glasgow for what turned out to be, at times, a feisty debate on the subject. Indeed, as previously reported on this blog, an impassioned debate had already started on Twitter in the run up to this live one.

Legal Hackers Scotland had done a great job in organising this event and getting all the main players in the same room together. Those players were Esther A Roberton (Chair of the Review); Neil Stevenson (CEO of the Scottish Legal Complaints Commission); Christine McLintock (past president of the Law Society of Scotland, who served on the Review advisory panel); and Roddy Dunlop QC (Treasurer of the Faculty of Advocates). The Fiona Bruce/David Dimbleby role, as moderator, was taken on by Professor Donald Nicolson OBE (Director of the Law Clinic, University of Essex).

Sponsorship by Cloch Solicitors, Inksters Solicitors and The Time Blawg allowed the event to be free to attend and for there to be wine on tap!

Background

The Independent Review of Legal Services Regulation in Scotland was launched by the Scottish Government on 25 April 2017. The stated purpose of the Review was to make independent recommendations to reform and modernise the statutory framework for the regulation of legal services and complaints handling.

Full details of the Review recommendations can be found in the Report which was published in October 2018. Whilst the Report makes 40 recommendations, the primary recommendation is that there should be a single regulator, independent of both government and those it regulates, for all providers of legal services in Scotland. The proposed single regulator’s remit will include entry, standards and monitoring, and complaints and redress.

The Debate

It was this primary recommendation that was the main topic of hot debate on the night with the panel clearly split two against this proposal (The Law Society of Scotland and the Faculty of Advocates) and two for it (the Scottish Legal Complaints Commission and, of course, Esther herself). Indeed at one point Donald referred to it as being like the case for the prosecution, on one side of him, against the case for the defence, on the other.

In the opening remarks reference was made to the ‘Roberton Rammy’ (a “rammy” being a Scottish term for a quarrel or brawl). Esther appeared to quite like this. She was up first for the rammy.

Roberton Review Debate - Legal Services Regulation in Scotland - RFPG - 13 February 2019 (Esther A Roberton)

Esther A Roberton ~ Chair of the Review

We were told that this was the most intellectually stimulating exercise Esther Roberton had been involved in. No red lines were involved. The Scottish Government gave her a broad ambit to carry out the review.

Esther referred to there being “a heavy handed and complex regulatory framework” for the legal profession.

She said the Scottish Legal Complaints Commission were vilified across the nation by lawyers and consumers.

Esther was also of the view that the legal sector is not one that is thriving. It is, however, she thinks a sector with huge potential, admired around the world but not thriving as perhaps it should. There is no need, given its size (12,000 professionals) in Scotland, for there to be five regulators.

She highlighted the importance of access to justice within Scots law, the need for a modern regulatory framework that is fit for purpose, with a risk-based approach, and the need for independence of regulation from government and those it regulates.

Esther’s proposal of a single regulator would further improve co-regulation. You don’t have self regulation but have co-regulation. You need independent regulation. Esther decided to be bold.

She thinks her primary recommendation is the correct one. If lawyers are confident then they should be happy to expose themselves to independent regulation.

In her closing remarks Esther said that if you disagree with her recommendations, make your voice heard, but equally make sure to voice your view if in support.

Roberton Review Debate - Legal Services Regulation in Scotland - RFPG - 13 February 2019 (Neil Stevenson)

Neil Stevenson ~ CEO of the Scottish Legal Complaints Commission

Neil Stevenson supports Esther’s primary recommendation even although the Scottish Legal Complaints Commission is the only organisation the Roberton Report recommends completely abolishing.

Neil told us that Scottish lawyers pay for the most complicated, convoluted professional complaints process system in the world. The split legal complaints system leads to having potentially as many as six different regulatory bodies handling a single complaint! This system is madness – and we are paying for it everyday. It needs to be simplified.

Neil highlighted the importance of service design to create a single point of entry for members of the public, and the need to consolidate functions. Shouldn’t regulation be designed to be accessible and understandable to the public?

The Law Society’s suggestion would add a 6th regulatory body to the equation and do away with the single gateway.

Neil said that regulating the term “lawyer” is a good idea. That was one thing there appeared to be unanimous agreement on.

He also commented on the fact that we still don’t have a single Alternative Business Structure (ABS) in Scotland. That’s done nothing for consumers.

Neil’s view was that regulatory reform along the lines of the Roberton Review can strengthen practitioners and the solicitor brand, while also protecting consumer rights and needs.

Roberton Review Debate - Legal Services Regulation in Scotland - RFPG - 13 February 2019 (Christine McLintock)

Christine McLintock ~ Past President of the Law Society of Scotland and Review Panel advisor

Having heard the case for the prosecution the first submissions for the defence came from Christine McLintock. She gave reasons as to why the Law Society of Scotland is against the main recommendation of the Roberton Review. Christine suggested we may be about to throw the baby out with the bath water.

The Law Society of Scotland is recognised globally. There is no evidence for such radical change. We could end up dismantling our profession into disparate groups.

Christine is worried about the increased costs of the regulatory changes proposed by the Roberton Review, although the review criticised the high costs of the current regulatory system. She is worried about dismantling the profession and how it would dismantle our law society.

Roberton Review Debate - Legal Services Regulation in Scotland - RFPG - 13 February 2019 (Roddy Dunlop)

Roddy Dunlop QC ~ Treasurer of the Faculty of Advocates

Roddy Dunlop QC began by admitting that “Turkeys don’t usually vote for Christmas”. How can heads of current regulatory bodies be said to have “no biases”? The bias to preserve the status quo?

Roddy pointed out that the proposals in the Roberton Review has not been costed. Many regulatory functions at the Faculty of Advocates are done voluntarily and thus at no cost.

There is no lack of independence. Regulatory overview is not going to make the legal profession thrive any more.

Roddy is of the view that five regulators are proportionate – regulation is not a numbers game.

Roddy warned that the one law that one cannot legislate against is the one of unintended consequences.

Roddy said that one thing everyone was agreed on is that the Scottish Legal Complaints Commission doesn’t work and needs change. They are the only one that supports the primary recommendation presumably because they see themselves being reinvented as the new regulator.

Roberton Review Debate - Legal Services Regulation in Scotland - RFPG - 13 February 2019 (The Panel)

Questions and Answers

Following the presentations by each of the panellists it was time for some responses by them to the initial submissions and for questions to be asked from the floor and answered.

Roberton Review Debate - Legal Services Regulation in Scotland - RFPG - 13 February 2019 - Esther A Roberton

Cost

Esther Roberton pointed out that on cost the only thing that’s publicly known is the cost of the Scottish legal Complaints Commission. With regard to the cost of independent regulation it is, she thinks, likely to be much more cost effective.

I hadn’t considered before the fact that the costs associated with the Law Society of Scotland (of which I am a member) may not be known to me. I know what me and my firm pay each year to remain members of that body. Should as a member we not see accounts annually? As a member of the Royal Faculty of Procurators in Glasgow (RFPG) I do receive their accounts. What is the difference? A rough calculation based on membership dues and number of members (and excluding guarantee fund subscriptions) provides a guestimate of income. Add onto that CPD income and sponsorship income and the figure mounts up.

Maybe there needs to be more transparency around income/expenditure of the member organisations involved as the debate continues?

Not all against her

Esther pointed out that the review panel didn’t all disagree with her principal recommendation. Professor Lorne Crerar, Chairman of Harper Macleod Solicitors, was in favour.

Empty shell?

Someone from the audience questioned whether the Law Society of Scotland will become an empty shell like the RFPG where we were holding the debate. Perhaps just doing CPD and not much else (the RFPG does, of course, have a library for members use which is perhaps its main function). Will the voice of the profession be lost?

On Twitter the view was expressed:-

Or could it be reinvented as the representative body the Solicitors profession needs (but currently lacks)?

And the RFPG waded in:-

Empty shell? Seems a bit harsh!
Potential role for the RFPG and other local faculties as representative bodies … “which the Solicitors profession needs (but currently lacks)”?

Esther thought that it was a sad view that the Law Society of Scotland would lose membership through creation of single regulator (and no longer have compulsory membership). She was of the view that rather it would strengthen its membership function.

Referendum?

Someone asked why does the Law Society of Scotland not ask its 11,500 members what they think of the Roberton Review?

On Twitter the response was:-

It did and does. Emails, feedback opportunities with dedicated email address, Council members organised constituency meetings across the country. Plenty opportunity for every member to give their views.

That is perhaps not quite the same as a direct survey or dare I say it referendum of all members.

The essential character of the profession

Roddy Dunlop QC pointed out that complaints against members of the Scottish bar is small.

It was asked whether losing the essential character of the profession is a strong enough justification to continue to have membership bodies regulate their members?

Separated functions and cooperation

Whilst someone from the floor thought that we need to embrace change they were of the view that we need to understand fully the issues involved. They thought that education and Entrance Certificates should be functions retained by the Law Society of Scotland and not passed to an independent regulator.

Esther, however, pointed out that the new regulator would have to work in cooperation with the Law Society of Scotland, the Faculty of Advocates and other member organisations. They would not make decisions in isolation and this wouldn’t simply be consultation.

Neil Stevenson made reference to the dental complaints service and how that works and could work in law – complaints dealt with in 3 days.

The consumer

Neil also pointed out that people want excellent service rather than the basic service they get and that causes issues.

On Twitter it was commented that:-

People want excellent service, but at basic service prices and legal aid pays less than basic service prices.

The consumer representative in the audience said that there’s a tension within our current system about what we’re trying to aim for. She highlighted the territorial defence of current organisations and the struggle of getting the consumer voice heard. You need to know what consumers want. A fundamental consumer principle is independence of regulation.

We were told that good regulation is about working with consumers. We should get back to principles instead of fighting over who does what.

Good regulation is taking an overarching view of how professionals and consumers work together. There was disappointment that consumer principles were ignored in the views of professional bodies in the Roberton Review.

Change for the sake of it

Roddy Dunlop QC said that we can’t just embrace change for change’s sake. Where is the indication of there being difficulty with entrance requirements, CPD, consumer satisfaction etc.

If there is a problem it needs to be tackled. Roddy Dunlop remains unconvinced that there is. The data and evidence does not support change. We must resist change for change’s sake.

It was suggested that you’re never going to get a perfect profession and there needs to be a reason for change.

However on Twitter the view was expressed that:-

We have heard today about how inefficient and ineffective the current complaints system is. Isn’t that enough reason for change?

Esther Roberton highlighted the key principle of good regulation according to the Competition and Markets Authority: Regulation should be independent of those it regulates.

Conflict of interest

If there is a perception that the Law Society of Scotland and its two roles are in conflict then that creates a problem for the profession. Not possibly a perception we were told as when conflict does arise then they always back the profession. This was a fairly definitive statement and I was unsure if there was evidence to back it up.

A view was given that the profession was not protectionist. Professional bodies are hard on their profession as they live or die on reputation and must make sure their reputation is upheld.

It was questioned whether there is an element of protectionism around the advocate versus solicitor advocate and does this come across to the public as protectionism?

The Master Policy

It was asked from the audience that if change comes to pass and the Law Society of Scotland weaken what happens with the Master Policy (professional indemnity insurance)? Will we see firms close (as the costs of insurance could rise as is the position in England & Wales where there is no Master Policy)?

Esther pointed out that her Report recommends that the Master Policy remains. It would be for the Law Society of Scotland to continue it. This would be a good reason to remain a member of that organisation.

It is happening elsewhere

It was pointed out that whilst apparently no one seemed to think that the principle recommendation of independent regulation would be the outcome of the review it is what has happened in every other review of regulation around the world.

The UN Task Force Report

Interestingly, a report for a UN task force on Justice (pathfinders for peaceful, just and inclusive societies) has recently, as reported in The Law Society Gazette, recommended that new regulatory models along the lines of those introduced by the Legal Services Act in England and Wales could help close the global ‘justice gap’.

According to the authors, from more than a dozen countries:-

The United Kingdom [although they really mean England & Wales] offers an example of a country where the legal services sector has been opened up with a new regulatory model that fosters innovation and accessibility.

Currently, the people who participate in designing and running justice systems are almost exclusively legal practitioners/lawyers. The exclusivity of lawyers is unparalleled and contributes to an inward looking sector that does not innovate. To make justice systems more fit for purpose and to ensure they meet justice needs in line with the people and relations paradigm that we advocate, others – psychologists, social scientists, data analysts, designers, neurologists, social workers, public and business administrators, and critically users – must be let in.

Commending the England and Wales model, the report says:

By shifting from a focus on regulating people – the lawyers who historically have provided legal services – to regulating services — which could be provided by a host of innovative people and businesses, the UK [again they really mean England & Wales] regulatory approach has the flexibility to accommodate new models. Moreover, it fosters responsible competition to help drive costs down and quality and accessibility up.

Alternative Business Structures

It was stated that Australia has had ABS for 20 years with no major changes or new entrants to their legal system.

Hmm… perhaps read the first two chapters of The Great Legal Reformation: Notes from the Field by Mitch Kowalski about ABS in Australia. Mitch also makes the following comment in Chapter 10 of that book about my own law firm Inksters:-

It’s hard not to notice the marked difference between Inksters operating in Scotland’s traditional regulatory environment, and gunnercooke, which has taken advantage of England’s more enlightened approach to legal services regulation. Both have found success with virtually (pun-intended) identical models, but one can’t help but feel that Brian Inkster (and by extension a new generation of Scottish lawyers) is being unnecessarily held back from greater success by Scotland’s antiquated regulatory regime, which encourages short-term thinking by forcing lawyers to fund all innovation from firm revenue or personal loans.

Engage in the debate

The point was made a number of times by all the speakers that the debate is only just beginning and that if you have an interest in it and the outcome of it you should engage with it.

The Scottish Government’s response to the Report is expected possibly sometime in the Summer of 2019.

Following the debate Roddy Dunlop QC tweeted:-

Really interesting debate. One thing is clear: people need to engage in the discussion to follow, or we will sleepwalk into monolithic regulation that changes our profession forever and for the worse.

Also on Twitter the following observation was made:-

“There will be more to come” – comment from the panel; seems the Legal Hackers Scotland event has opened up interesting debate on the review of legal services regulation in Scotland. No real rebuttal around the point that good regulation should be independent of those it regulates, which seems to be the elephant in the room.

As the ‘Roberton Rammy’ continues we will keep an eye on it here at The Time Blawg and keep you updated. It is unlikely anything major will happen overnight. We have been waiting almost 10 years for ABS to become a reality in Scotland since the passing of the Legal Services (Scotland) Act 2010. There is a glimmer of hope that this might actually happen before the current year is out. If so will it be another 10 years before we see anything concrete emerge from the Roberton Review of Legal Services Regulation in Scotland?

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