Legal Services Regulation Reform in Scotland: Consultation Analysis Reviewed – Part 1: Overview

Legal Services Regulation Reform in Scotland - Consultation Analysis

Yesterday the Scottish Government published its Consultation Analysis [PDF] on Legal Services Regulation Reform in Scotland.

It extends to 138 pages covering many aspects of possible regulatory reform of legal services in Scotland.

It has been a long time in coming.

Legal Services (Scotland) Act 2010

England & Wales have had fundamental regulatory reform since the introduction of the Legal Services Act 2007. However, this has not been the case in Scotland despite the existence of the Legal Services (Scotland) Act 2010. Much of that Scottish Act has yet to be fully implemented more than 11 years after receiving Royal Assent.

The Roberton Review

The consultation on legal services regulation reform in Scotland comes on the back of the ‘Roberton Review‘, which was an independent Review commissioned by the Scottish Government in 2017 and chaired by Esther A. Roberton. The primary recommendation of that Review was that:-

There should be a single regulator for all providers of legal services in Scotland. It should be independent of both government and those it regulates. It should be responsible for the whole system of regulation including entry, standards and monitoring, complaints and redress. Regulation should cover individuals, entities and activities, and the single regulator should be a body accountable to the Scottish Parliament and subject to scrutiny by Audit Scotland.

Governmental Response

The Scottish Government’s Response to the Roberton Review [PDF] was issued in June 2019 with the next steps being stated as:-

The Scottish Government is working with the Law Society of Scotland, the Faculty of Advocates and the Scottish Legal Complaints Commission to identify and consider improvements that may be made to the legal complaints system in the interim without the requirement for primary legislative change.

We will publish a public consultation to seek to build consensus on the way forward with regard to the future of the legal services regulatory framework for Scotland, this will include a range of options. That will be used to develop primary legislation for introduction to the Scottish Parliament.

In moving this work forward it will be critical to have the constructive engagement of stakeholders; and the Scottish Government is committed to working in partnership to deliver proposals for a reformed legal services regulatory framework in Scotland. The time given by stakeholders is very valuable and greatly appreciated and we look forward to continuing that work over the coming months and beyond.

What the Consultation Analysis on Legal Services Regulation Reform in Scotland covered

The consultation on the back of the Roberton Review looked at various aspects of legal services regulation reform in Scotland, including:-

  • Strategic Change, Vision and Key Aspects of the Regulatory Model
  • The Potential Regulatory Models
  • The Role of the Lord President and the Court of Session
  • Regulatory Committees
  • Fitness to Practice
  • Legal Tech
  • Client Protection Fund (Guarantee Fund)
  • Entry, Standards and Monitoring
  • Definition of Legal Services and Reserved Activities
  • Titles
  • Business Structures
  • Entity Regulation
  • Economic Contribution of Legal Services
  • Complaints and Redress

What The Time Blawg will cover

I do not intend to look at each and every part of the Consultation Analysis on Legal Services Regulation Reform in Scotland on this Blog. However, I will instead concentrate on four specific areas of particular interest to me (and hopefully to my readers), namely:

  • The Potential Regulatory Models
  • Legal Tech
  • Business Structures
  • Complaints and Redress

I will do so by way of four separate blog posts, one on each topic, to follow on from this one. Hyperlinks to those posts will be added to the four topics listed above above as and when I write and publish the individual blog posts.

Caveats and Reporting Conventions

In the meantime, I would point out that  the Consultation Analysis highlights some important caveats and reporting conventions:

While no campaign responses were received for this consultation, there was evidence of coordination of responses. Mostly, this was respondents supporting the Law Society of Scotland’s organisational response – some had adopted part of the Law Society’s qualitative responses at individual questions, others indicated their support for this on a question by question basis by referencing the Law Society’s response rather than replicating it, and others did not respond to the set questions but provided a non-standard response which endorsed the entirety of the Law Society of Scotland’s response and added some additional, more general information of their own. As responses were not identical, all such submissions were treated as unique and considered within the main data analysis, and are captured within the reporting below.

In addition, a few respondents advocated the responses from the Faculty of Advocates and the Scottish Law Agents’ Society. Here, and for those who advocated the Law Society of Scotland’s response, where respondents indicated that another organisation’s response should be treated as their own, all data were replicated within the analysis dataset for these individuals (both qualitative and quantitative). However, where no such instruction was provided and respondents simply endorsed/supported another’s response, the volume of those who supported the qualitative sentiments were noted at each question, but quantitative responses were not replicated in order to avoid misrepresenting respondents’ views.

They go on to state:

As individuals were not asked to identify their interest in the consultation (i.e. as a legal professional or a consumer/member of the general public), it was not possible to categorise all individuals’ status to perform disaggregate analysis at this level. Similarly, it was not possible to tell whether responses were more biased towards one respondent group or the other. However, the organisational responses did represent a higher number of respondents from the legal profession compared to consumers. As such, there is a risk that consumers’ views may be under-represented within the consultation and analysis presented below.

And:

Finally, the findings here reflect only the views of those who chose to respond to this consultation. It should be noted that respondents to a consultation are a self-selecting group. The findings should not, therefore, be considered as representative of the views of the wider population.

Evidence of Coordination of Responses

A quick glance through the alphabetical list of published responses (some are anonymised) does suggest a large proportion of the responses on the consultation on legal services regulation reform in Scotland coming from the legal services industry rather than from elsewhere.

I certainly did not coordinate my response with any other person or body.

However, it is clear, as the Consultation Analysis picked up on, that many other legal professionals did so.

There may be a need to reference back to this in future posts on the individual four topics that I intend to cover in some detail.

Other Posts in this Series

So far there have been five posts in this series:-

To be added to the series soon:-

  • Part 5: Complaints and Redress

Reactions on Social Media

On LinkedIn the following comments have been made:-

Graeme Johnston (Software for mapping work and getting things done):

Looking forward to reading your posts on this, Brian.

Me:

Thanks Graeme. I’m looking forward to writing them. Each a big topic in their own right so thought it best to split them up – and it might facilitate writing them more easily and publishing them quicker!

Graeme Johnston:

That sounds a good plan. I had a quick first read of the report yesterday, and the polarisation of opinion on the central regulatory question certainly stood out. I find it a complex topic and don’t have a good intuition yet as to what the best approach will be.

https://www.linkedin.com/posts/johnstongraeme_just-had-a-first-quick-read-of-the-scottish-activity-6951155759745261568-KmIy

Me:

That polarisation has not changed any since the ‘Roberton Rammy‘ that preceded the Consultation.

Graeme Johnston:

Thanks! Really useful record of the debate.

Me:

And then there are the prior heated tweets before the debate!

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Michael Burne (Rebel with a cause. Working with like-minded folks to change the way legal services works):

Look forward to reading your thoughts on all the topics Brian.

Me:

Thanks Michael. I’m always jealous and annoyed by how far behind you, in England & Wales, we are in Scotland! Particularly so with the third of the four topics. I am sure that will come out and shine through when I tackle it!

Michael Burne:

All power to you, sir. But don’t worry too much as we haven’t got that far in England & Wales yet despite the changes, Brian!!

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Colin Levy (Your Friendly Neighborhood Legal Tech Guide | Director of Legal & Evangelist at Malbek | Legal Tech Startup Advisor):

I look forward to reading your thoughts.

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Craig Anderson MCIPD (Strategic People Partnering at Lloyds Banking Group – Consumer Lending):

One area that I think is missing here (although it might sit in legal tech), is how the legal profession deals with data and protects it.

It would be my opinion that the legal world is years behind other industries in how they deal with data from a GDPR perspective.

Too many hard copies, documents not being redacted and then being shared with people who are not entitled to certain bits of information; so people are failing to protect the data successfully.

Me:

Data Protection as such was not part of the remit of the Roberton Review and therefore not part of the subsequent consultation. I assume because regulation of that area is already covered via the ICO there was not seen to be a need to duplicate that in any way specifically for legal services.

But agree that legal need to up their act in this area and maybe more guidance and support on that could come from their own membership and/or regulatory bodies.

Craig Anderson:

I agree. It’s way too late by the time the ICO are involved. The legal profession need to tackle this themselves and sort the issues. The ICO get involved when it’s already too late and the issue has occurred.

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John Flood (Professor of Law and Society at Griffith University):

This is going to be interesting, Brian. It certainly is a looong time…

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