This post, on regulatory models, is the second in a series of five blog posts, each one looking at different aspects of the Consultation Analysis on Legal Services Regulation Reform in Scotland.
That consultation 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.
Thus, with apologies to J. R. R. Tolkien, Esther wanted:-
One Regulator to rule them all,
One Regulator to find them,
One Regulator to bring them all
and in the darkness bind them.
In this post I will examine to what extent those participating in the consultation agreed or disagreed with this recommendation.
The consultation paper set out three options for possible regulatory models:-
Option 1: the Roberton Regulalatory Model, as recommended by the Roberton Report
This would introduce a single independent regulator that would be responsible for entry, standards, monitoring, complaints and redress in respect of the legal profession.
Option 2: a Market Regulator Model
This would introduce an independent market regulator, who would oversee the work of the current ‘authorised regulators’, each having distinct roles and purpose.
Option 3: an Enhanced Accountability and Transparency Regulatory Model
In this model, the current regulators would continue to regulate their respective professions. There would be a focus on enhanced accountability and transparency, and a simplification of the current framework. The regulators would also be required to ensure that they embed a consumer voice in their organisation to provide advice, represent the views of consumers and organise research.
Consultation Views on the Proposed Regulatory Models
Of those who provided a rating to indicate their level of agreement with the primary recommendation in the Roberton report, responses were fairly evenly split between those who agreed (49%) and those who disagreed (51%). However, those who were opposed to the recommendation were slightly more likely to strongly disagree, compared to those who strongly agreed.
Although when looking at these percentages you have to be careful to remember that, as mentioned in my last blog post, the Consultation Analysis highlighted that:-
there was evidence of coordination of responses. Mostly, this was respondents supporting the Law Society of Scotland’s organisational response.
Which possibly and maybe unrealistically tips the scales very slightly into the disagree camp.
Arguments Against the Roberton Model – The Law Society of Scotland
Especially so when the Law Society of Scotland is so vehemently opposed to the Roberton Regulatory Model. They stated to the Consultation [PDF]:-
It risks introducing a radical regulatory structure which is costly, undermines the rule of law and damages the international reputation of the Scottish legal sector to address a problem which is non-existent.
Radical in Scotland perhaps where regulatory reform has been slower than in many parts of the globe and is now 10 years or more behind our colleagues in England & Wales. But not radical compared with the changes in regulatory models we have seen and that are still evolving outside Scotland.
With regard to costs, Esther Roberton stated in her Review that:-
I am clear that the global cost of the new regulatory system should not be more than the cost of the current system.
Rule of Law and International Standing
Also, I really cannot see how one new regulatory body could or would undermine the rule of law. Or damage the international reputation of the Scottish legal sector. Surely any international reputation is more likely to be damaged by this inward and backward looking stance? One that is out of kilter with most international jurisdictions where regulatory reform is on the table.
At the Debate on the Review of Legal Services Regulation in Scotland (aka ‘The Roberton Rammy’), Esther Roberton said that if lawyers are confident then they should be happy to expose themselves to independent regulation. Does this now mean that the Law Society of Scotland is lacking confidence in its members?
Christine McLintock’s argument then, for the Law Society, was a fear of dismantling the legal profession into disparate groups. On the contrary there is a place for the Law Society to become a stronger independent representative body. One used on behalf of its members to improve the separate independent regulation of legal services in Scotland. And, if members are having unreasonable problems with that independent regulator, a membership body to turn to for assistance. That is something that is completely absent under the current conflicted system of joined regulation/membership.
Arguments Against the Roberton Model – The Faculty of Advocates
As Roddy Dunlop QC, representing the Faculty of Advocates, admitted at the ‘Roberton Rammy‘ “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?
In responding to the Consultation [PDF], the Faculty of Advocates set out a lengthy history lesson about their importance as being:-
One of the key institutions responsible for maintaining Scotland’s national identity, in particular since 1707.
They then go on to state:-
It is notable that the present consultation does not contemplate the maintenance of the status quo. That is, with respect (and subject to the caveats below regarding the disciplinary process), a regrettable omission.
Indeed, Turkeys and Christmas! Or perhaps Gollum and “my precious” 😉
Interestingly, and wrongly, they also state that the Roberton Model:-
was proposed by Esther Roberton alone – it was not supported by the eminent legal practitioners who had sat on her review committee.
That is simply not the case as Esther’s position was backed up by Professor Lorne Crerar, Chairman of Harper Macleod LLP. Indeed Professor Crearar states in his response to the Consultation:-
I was part of Roberton Review Group and support the detailed analysis and set of arguments leading to the suggested model. I also wrote a detailed article which appeared in the Law Society Journal outlining details of additional arguments for support of Roberton Review.
These Responses were Predicted
Crispin Passmore writing in December 2021 about the Consultation said:-
Government is a seeking a consensus, but… that will never include the professional bodies. We can predict that the Law Society of Scotland and Faculty of Advocates will warn of unintended consequences, will stress how competitive the market already is (every monopolist starts with that), call for more regulation of currently unregulated legal services, and argue for more efficient complaints handling. The Faculty will seek to separate themselves from the mischief being addressed and stress their role in providing the judiciary of the future – and reform will threaten that supply of high quality judges. I hope I am wrong on all of this and that they welcome full scale reform.
Crispin was not wrong. He very accurately predicted the responses of the two main professional bodies in Scotland.
Turkeys voting for Christmas – The Scottish Legal Complaints Commission
It appears that some Turkeys might actually vote for Christmas. As pointed out at the ‘Roberton Rammy‘, Neil Stevenson, CEO of the Scottish Legal Complaints Commission, supports Esther Roberton’s primary recommendation even although the Scottish Legal Complaints Commission is the only organisation the Roberton Report recommends completely abolishing.
However, at that debate, Roddy Dunlop QC, for the Faculty of Advocates, pointed out that the Scottish Legal Complaints Commission are the only one that supports the primary recommendation, presumably because they see themselves being reinvented as the new regulator.
I imagine there would actually be a combination of the complaint handlers in that organisation and the regulatory handlers at the Law Society to form the new regulator.
Arguments For the Roberton Model
I will now look at the arguments that favour the first of the three regulatory models. Here are four sample responses of those in favour of the primary recommendation made by Esther Roberton:-
It is our view that our regulator should be independent of those they regulate. It is our view that currently, The Law Society of Scotland being both our representative body and our police breeds uncertainly and lack of trust within the membership. This dual role, that can only be described as conflicting, may well prevent members from seeking help, support or guidance, thus having a detrimental effect on either the firm or the individual in question. It is time for the regulation of solicitors to be updated.
The Law Society of Scotland struggles hugely with its two part role as a representative body and a regulator… It often is conflicted whereby it should represent solicitors as well as regulate them. A new system is highly needed to resolve this inherent conflict. A new body for representing solicitors separate from the regulator would make the matters clearer, more accountable and less risky.
One of the key lessons from reforms in England and Wales and in the United States and other jurisdictions is that multiple agencies involved in the regulation of legal services creates a barrier to effective reform. Anything other than a single legal regulator, acting under a clear public interest mandate from the legislature, is a concession towards professional interests over those of the public.
The focus is always on process rather than outcome and appears to me to be run by lawyers FOR lawyers. There appears to be no understanding of consumers. It’s my belief that the culture (which is set from the top) is self-serving.
All of those surely point to the main reason as to why the Roberton Model should win through.
At the ‘Roberton Rammy‘ the following observation was made on Twitter:-
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.
Market Regulatory Model
There was very little support for a Market Regulatory Model with only 7% of respondents in favour of that. However, 82% of respondents ranked it as their middle preference which probably simply demonstrates how polarised the two main camps are insofar as being for or against the Roberton Model.
Enhanced Accountability and Transparency Model
Whilst 55% of respondents preferred this model compared to 38% preferring the Roberton Model, some, like the Faculty of Advocates, only chose it as the “least worse” of the three options as no change at all was actually their preference, but that was not an option given.
However, surely this Option 3 is not really that far removed from the status quo? The main limitations or opposition to it were stated as being:-
- It would not provide independence from the profession, and would continue to put the interests of service providers above consumers;
- It would continue to perpetuate tensions and conflicts of interest for organisations between their role as regulator and their role as representatives of the profession;
- It was too similar to the current system so would not deliver the necessary changes or required levels of improvement;
- It could be prohibitive to new entrants to the market as they would have to set up their own regulator; and
- It was perceived that the disciplinary tribunal, complaints system and Court of Session would fall under the direct scrutiny of Parliament, which was again considered unsatisfactory for an independent profession.
Limitations or Opposition to the Roberton Model
A couple of points jumped out at me as to reasons given for opposing the Roberton Model. The first of these was that:-
This model risked losing the goodwill and expertise of skilled and experienced volunteers who work on the Law Society of Scotland Regulatory Committees and support the Law Society of Scotland’s work.
Is that a threat to throw the toys out of the pram rather than those with such expertise and experience actually volunteering to assist a new regulatory body for the continued benefit of all concerned?
The second one was:-
That no other jurisdiction in the world had implemented this regulatory model.
If this is true (I would be interested to learn if it is not) then maybe only insofar as one regulatory body for all legal service providers rather than several, even if independent of membership bodies. But as Esther Roberton pointed out her recommendation is due to the small size of Scotland:-
We also need a regulatory model that is proportionate. We are a small nation of around 5.4 million people and around 12,000 legal professionals in Scotland. Yet there are currently 5 organisations involved with regulation, discipline and complaints against legal services providers; the Law Society of Scotland, the Faculty of Advocates, the Association of Commercial Attorneys, the Scottish Legal Complaints Commission and the Scottish Solicitors’ Discipline Tribunal.
Lessons from England & Wales on Regulatory Models
Furthermore, after 10 or more years of experiencing a variety of different regulators in England & Wales the latest Independent Review on Reforming Legal Services [PDF] led by Professor Stephen Mayson recommends that there should be a single regulator for the legal services sector in England & Wales. The Review states:-
A single regulator will be better able to assess and monitor risks and regulatory responses on a consistent, coherent and cost-effective basis across the whole sector. In addition, “the principle of accountability, in the context of legal services, is best met by a regulatory framework that is independent from both professional bodies and the government.”
Stephen Mayson’s Review was published two years after Esther Roberton’s one. Both come to the same conclusion. In England & Wales they have had the benefit of learning from a much earlier first attempt at regulation of their legal services market. They have identified that one regulator will be better than several.
Scotland should learn from that too and maybe for once beat England & Wales in the regulatory stakes by becoming the the first jurisdiction in the world to implement this regulatory model. If we do so it looks like England & Wales will be hot on our heels in doing the same.
Image credit: Elijah Wood in The Lord of the Rings: The Fellowship of the Ring (2001) © New Line Productions
Other Posts in this Series
There are five posts in the series on the Consultation Analysis. And a series of thirteen on Regulatory Reform, when you include my original posts on ‘The Roberton Rammy’ and the latest ones on the proposed Bill and the Scottish Government’s response to the Consultation Analysis.
- Debate on Legal Services Regulation in Scotland heats up on Twitter in advance of the live event in Glasgow
- The Debate on the Review of Legal Services Regulation in Scotland (aka ‘The Roberton Rammy’)
- Legal Services Regulation Reform in Scotland: Consultation Analysis Reviewed – Part 1: Overview
- Part 2: The Potential Regulatory Models (i.e. this post)
- Part 3: Legal Tech
- Part 4: Business Structures
- Part 5: Complaints and Redress
- Legal Services Regulation Reform Bill to be introduced in 2022 / 2023
- Legal Services Regulation Reform Elephant left in the Room
- Legal Tech Sandboxes
- ABS in Scotland to get Equality with England & Wales
- Legal Complaints Reform in Scotland
- Protection of ‘Lawyer’ and other Regulatory Reform Bits and Bobs
I will publish my views on the first draft of the Bill when we see it.
Reactions on Social Media
On LinkedIn the following comments have been made:-
Roddy Dunlop (Dean of the Faculty of Advocates):
An interesting read. But (at least) three things missing from the analysis:
1- what is the rebuttal to the intervention of the judiciary, warning that the plans threaten the independence of the legal system and thus the rule of law itself?
2- Prof Crerar’s support is noted. But the point Faculty sought to make is that and Roberton had a panel that was meant to make recommendations. It did not agree. In particular, eminent members such as Laura Dunlop QC and Christine McClintock did not agree. Thus the report is confessedly Ms Roberton’s alone.
3- it’s all very well to quote Ms Roberton’s aspiration (“I am clear that the global cost of the new regulatory system should not be more than the cost of the current system”), but precisely how is that achievable? Roberton expressly conceded that she had not costed things. By way of example, Faculty’s current system is entirely free. How can a new set up, which will inevitably cost millions, be “no more expensive” than free?
With regard to point 1: Esther Roberton’s recommendation is that the new single regulator “should be independent of both government and those it regulates.” Thus, there is independence of the regulator and independence of the legal profession. The legal system remains independent and there is no threat to the rule of law. The only threat is to the monopolies unreasonably held by the existing professional bodies. But they should actually be in a better place when they can support and assist their members without also being conflicted as a regulator.
The Consultation Analysis specifically looks at the Role of the Lord President and the Court of Session. That is not something I set out to look at in any detail but there is a large feeling (84%) that “the legislative approach should make clear the role of the Lord President and the Court of Session in the regulatory framework in order to provide clarity, transparency and accountability. However, there was strong opposition to altering or removing the role of the Lord President and the Court of Session, with the majority of respondents stressing that their role in the regulatory framework was important in safeguarding the independence of the legal profession.”
The Consultation Analysis goes on to state that:
“While there was little consensus over whether the Lord President’s role should be consultative or one of consent, and whether the Lord President should have a role in the process of appointment of any new ‘legal members’ to relevant positions, nearly three quarters (71%) agreed that the Lord President should have a role in any new regulatory framework in arbitrating any disagreements between independent Regulatory Committees and the professional regulatory bodies.”
Thus the end result could well be the Roberton Model but with clarity over the role of the Lord President and the Court of Session within that model.
With regard to point 2: Clearly Laura Dunlop QC and Christine McLintock had the interests of the Faculty of Advocates and Law Society of Scotland, respectively, at heart when involved in the process. They were the ‘Turkeys’ that you referred to at the ‘Roberton Rammy’. They were never going to vote for Christmas. However, more importantly, you are wrong to suggest that the whole panel was meant to make recommendations. Esther Roberton was appointed by the Scottish Government to give her recommendations. She did so and states in the preface to her Report that:-
“The recommendations contained in the report are mine and I accept full responsibility for them. All of the panel members agree with some of them but, as might be expected, some do not agree with all of them. In fact, a minority of members expressed significant disagreement with the primary recommendation and I wholly respect that view.”
And finally with regard to point 3 there was an analysis regarding costs in Esther’s Report. She analysed costs from each professional body but the Faculty of Advocates did not give her any costs to work with. Whilst you claim that the Faculty’s current system is entirely free that, of course, is not accurate. If Advocates give up their time to be freely available to assist the regulatory process there is still a cost element to that (i.e. their time that could have been charged were they doing fee earning work instead). The Faculty also employ staff who presumably have a part of some sort to play in regulatory matters.
Esther states in her Report that “Therefore, based on the publicly available information the cost of the current regulatory system looks to be around £7 million per annum, although we acknowledge the limitations of the information we have been able to process.” She goes on to observe that “this reflects the complexity and cluttered landscape of regulation and complaints handling.”
The inference is that with one regulator there should be a cost saving. She states “I am clear that the global cost of the new regulatory system should not be more than the cost of the current system. As already discussed the body would have to lay an annual report and budget in Parliament and be subject to scrutiny by Audit Scotland. This is to ensure an additional accountability mechanism and to provide assurance that efficient, effective and proportionate regulatory arrangements are in place.”
I think you may assume that the judiciary were aware of all of that when they oenned their response to the consultation. Are you saying that the judiciary is wrong in what it said? Which sounds bold to me.
They may, like the Faculty and the Society, be seeing themselves as Turkeys when that is not necessarily the case. This was perhaps borne out by their use of red ink when responding to the Consultation!
How could the judiciary be affected in any way by the proposals? How could they ever be “turkeys” in this scenario?
I thought that your argument was that they would be affected. There would be a threat to the independence of the legal system and to the rule of law? Surely that would affect the Judiciary? If you are now saying that they are not going to be affected in any way then presumably there is no longer an issue?
An independent judiciary would self-evidently not be affected by proposals to reform regulation of the legal profession. It is able to offer *independent* analysis of the unwanted effects of the proposals. I am astonished you cannot see that.
That is not what the Judiciary say in their response:
“The doctrine of the separation of state powers requires that the judiciary remains independent of the legislature and executive. The “single independent regulator” as proposed by the Roberton report, accountable as it would be to the Scottish Parliament and Audit Scotland, would remove the power of the Court of Session to regulate the legal profession. It would serve only to harm the independence of the legal profession, and in turn impinge upon the independence of the judiciary.”
They were concerned about the removal of their power to regulate the legal profession and thus were putting themselves in the position of being a Turkey.
As I said earlier the Consultation Analysis looks to address those concerns with questions about the continuing role of the Lord President and the Court of Session.
There is nothing to say that the Roberton Model cannot work with a clarified and continuing role on the part of the Lord President and the Court of Session.
Can I repeat my earlier query? How can it be cheaper than free?
You are clearly not reading (or wanting to read) what I am writing. As I have already said there is always a cost attached to time spent even if given freely. The Faculty’s refusal to quantify that for Esther Roberton speaks volumes. The current regulatory system looks to cost around £7 million per annum. It isn’t free. And Esther suggests the complexity and cluttered landscape of regulation and complaints handling makes it more expensive than it needs to be.
No need to get tetchy, Brian. Free to the public is actually free. Something new will not be free. Not sure why you’re so invested in this, but your refusal to acknowledge even that is, I would suggest, what “speaks volumes”.
I’m not so sure that it is me who is getting tetchy! The regulatory system is currently free to the public and Esther recommends that continuing to be the case. The cost is to the legal service providers and the recommendation is that the cost of the new system should not be more than the cost of the current system.
OK. So regulation of faculty would have to be free. How? Answer: it couldn’t, and these costs would end up being borne by the public in increased fees. Look at how costly SLCC has been; an uber-regulator would be even more expensive.
Esther’s Report acknowledges the failings of the SLCC and the costs involved in that organisation. It seeks to address that and I will be looking at that point in more detail in the fifth and final in my series of blog posts on the Consultation Analysis.
All I am stating is that Esther’s recommendation is that the cost of the new system should not be more than the cost of the current system. If the Scottish Government follow and adhere to that recommendation there should be no increased costs involved.
You state that you are not sure why I’m so invested in this. I thought that might have been clear. But, if not, I am happy to enlighten you.
I’m a solicitor. I have owned and run the law firm Inksters for the past 23 years. That in itself gives me an invested interest as someone who is, and owns a business that is, regulated.
I have an active interest in entrepreneurship, marketing, technology and corporate social responsibility in relation to running a law firm. I am often asked to speak on these topics at conferences, summits and retreats.
I write a blog (The Time Blawg) about the past, present and future practice of law. That touches on many aspects of legal practice, and regulation is clearly one of them.
My law firm and my blog both sponsored, along with Cloch Solicitors, The Debate on the Review of Legal Services Regulation in Scotland (aka ‘The Roberton Rammy’) organised by Legal Hackers Scotland and which took place at the Royal Faculty of Procurators in Glasgow on 13 February 2019. You, of course, attended and spoke at that debate on behalf of the Faculty of Advocates.
I blogged about that debate back then.
I said then “As the ‘Roberton Rammy’ continues we will keep an eye on it here at The Time Blawg and keep you updated.” That is what I am now doing. That is why I am invested in this. I’m not a Turkey. I’m not Father Christmas. I’m just an observer providing my views via my blog for the benefit of anyone who, like me, is interested in this topic.
Crispin Passmore (Consultant to legal market) responding to points made by Roddy Dunlop on independence of the legal system and the rule of law:
- Are Scottish or E&W judges in UK Supreme Court lacking independence because they are part of system of regulation (in E&W) that has independent regulation at its core?
- It is Parliament that has given certain lawyers a monopoly on certain legal activities. Parliament can amend, add, reduce that. It is Parliament that puts in place legislative (ie regulatory) framework for that monopoly and no reason why that cannot include independent regulation. Parliament sits atop all of this regardless of regulation being done by lawyers or experts.
Michelle Thomson (Scottish National Party – Member of Scottish Parliament for Falkirk East):
A calm and measured assessment of the consultation analysis. IMHO as a consumer, reform is well overdue.
Nick Gould (partner at Aria-Grace law):
Whatever system Scotland chooses to adopt, taking an approach which is the complete opposite to that of England would probably be a good start. And I say that on behalf of numerous clients who , over the years, have called on a supine and disinterested #SRA to wake up.
Perhaps now it might, after the massive interest in the key role of the #legal profession in #PostOfficeScandal.
Michelle Thomson (Scottish National Party – Member of Scottish Parliament for Falkirk East):
Hi Nick, and the banking crisis too of course.
Hi Michelle, yes failure after failure after….you get my drift..
David Flint (Commercial Law Consultant at Inksters; Visiting Professor at Creighton University School of Law):
I remain to be convinced that the obsession with a scheme to “regulate” lawyers (whether the existing system or a new one) is more than a knee-jerk reaction by people who have been unsuccessful in their legal interactions. We don’t regulate plumbers, joiners and electricians in this way and we certainly don’t ask them to pay to be regulated.
I can’t help feeling that this is part of a very undesirable headlong rush for the self-sustaining industry of regulators whether legal, health and safety or equality etc….. Ultimately whatever the arguments of cost by you Brian Inkster or those of Roddy Dunlop, it is the consumer who is paying – directly or indirectly.
I think regulation of legal services is here to stay. It has been with us for some time.
What The Scottish Government, and the professional bodies that represent the regulated, should be concentrating on is improving it and making it work better and easier for all concerned and that without adding to the cost of it. Indeed they should seek to reduce that cost if they can. Which cost, as you say, the consumer will ultimately pay for even if indirectly.
My other concern is that experience has shown that regulators (particularly new ones) are often very zealous to show that they are “independent” of those they regulate and complainants will rarely if ever be satisfied with the outcome of a regulatory review unless it vindicates all their arguments (however spurious). It is sadly a truism that in an adversarial system such as law, one party is often happy with the result and the other convinced that they have suffered an injustice.
This is a fair point. Although it is not as though the LSS have not been said to be over zealous in their approach at times! But with an independent regulator we should then have an unconflicted representative body to help defend us against any such over zealousness 😉
That’s a separate and very valid point; LSS has rarely shown much enthusiasm for standing up for its members to date. A good reason why membership of LSS should not be compulsory as solicitors should be able to choose to be represented by someone of their choosing and not have a legislative choice foisted on them!
Ralph Riddiough (Director, and Head of Corporate, at Holmes Mackillop Solicitors):
This whole debate is ivory tower stuff compared to what’s collapsing around us with legal aid.
Indeed, and much about retaining ivory towers!
Neil Alan Stevenson (Experienced Chief Executive, Chair and Non-executive Director):
Thanks for this contribution Brian Inkster – thoughtful and thorough. I won’t add any thoughts as we have a published position and actually there’s a real value in seeing a more organic discussion evolve – we always learn something new, Looking forward to the next in the series!
Thanks Neil. I’m sure you will be particularly interested in the last one (Part 5) in the series which will cover complaints. I expect to publish Part 3 on Legal Tech tomorrow (Sunday) morning.
Steve Violet (Regulatory policy specialist – non-practising solicitor):
This is a great series so far. Thank you for sharing it.
Thanks Steve. Part 3 in the series now posted.
Tim Grey (Barrister 23 Essex Street):
I follow the logic of both the Mayson Report (Part 1) and the Roberton report. But both critically fail to do two things. First on neither advisory panel are there many if any practitioners, I.e. those at the coal face doing the job. So far as I am aware, Iain Miller is the single exception to that on the Mayson team. Iain unquestionably knows a vast amount about legal regulation. I do not know how much he or the constituent members of the other Roberton panel know about regulation in other industries.
I can only assume very little. If they did they would have seen the HCPC as the only example of an attempt to centralise the regulation of different professionals practising in the healthcare field, and understood that it didn’t work. It failed to the extent that Social Work England was formed to remove social workers from HCPC regulation. Whatever the published rationale for doing so, the truth to those of us witnessing it at the sharp end was that the HCPC were under-resourced and lacked the capacity and specialist knowledge to regulate audiologists, paramedics, social workers etc. etc. The reality, which central government will have to acknowledge, is that centralising regulation cannot be cost neutral.
It may be financially sustainable but the capital to set it up will be significant. I do not know the cost of abolishing the General Social Care Council, establishing the HCPC then hiving off its social work responsibilities to an entirely new regulator SWE, all in the space of 10 years, but it cannot possibly have been cost neutral.
However, even more fundamental is the need for expertise in the regulator regarding the profession it regulates. The Bar is a very different beast from Solicitors firms, which in turn are almost wholly different from IP attorneys and so it goes on. Whilst having a single point of contact might work, the idea of a single centralised regulator that is materially different in form from what we currently have, is with respect proven to have failed, and would in my humble opinion fail when it comes to regulating legal professionals whose jobs demand entirely different, if complimentary skill sets.
I do not agree that a profession suggesting it should have input into its own regulation is an attack against independent regulation. To the contrary, for independent regulation to thrive the profession must have confidence in the regulator. Recent professional disciplinary history is littered with examples of regulators losing the confidence of those they regulate. When that happens it is deeply harmful to the public, to consumers, clients and Dame Janet Smith’s wider public interest.
So whilst I acknowledge there is always a constant need to evolve and advance towards “better” regulation (for example reforming the Law Society of Scotland in a similar manner to that South of the border with the SRA, which I agree makes good sense and ensures independence of purpose) I worry that we are once again failing to learn the lessons of the past and apply them to other sectors.
Brian Rogers FCMI (Regulatory Director, The Access Group (Legal Division)- helping law firms meet their regulatory and compliance obligations):
A single legal regulator for England, Wales and Scotland is clearly the right way to go, so why do we need to keep on having consultations and delays in making final decisions about it!
The inconsistent approaches of the current underlying regulators, for example, in relation to sexual harassment, is just one reason why a single regulator should be created; this inconsistency is now being addressed but it has taken far too long to get to this point!
Take a look at the Facebook page, “When conveyancing goes rogue”, to see the confusion amongst consumers in relation to who is regulated by who (Solicitors Regulation Authority or Council for Licensed Conveyancers – regulating property and probate lawyers) and who to complain to about poor service/misconduct, to see that a single regulator would make life so much easier for all concerned!
We are 15 years on from the creation of the Legal Services Act, so now would be a good time for change, especially as the Legal Services Board’s remit was then, and is now, to plan for its own demise!
Graeme Johnston (Software for mapping work and getting things done) gave his comments on LinkedIn by way of a separate post by him looking at “Some interesting bits and pieces recently on legal services regulation and independence in the UK.” He says:-
I’m still reflecting on the points made in the debate in Scotland about whether to leave the largely self-regulating system in place or whether to introduce a new independent regulator of legal services.
The official documentation is rather heavy (and I find some of the submissions made unattractively polemical), but Brian Inkster is doing a useful job summarising topics on his blog. He’s just published part 2 of an intended five part series on the latest official document.
I’m broadly sympathetic to the proposed reform as I think there are elements of legal services which need to improve, and which the rather echo-chambery current system is unlikely to achieve.
The main reservation I have is the risk of excessive governmental influence in future.
The topic of independence is extremely challenging when it comes to lawyers:
1. independence from government and politics is the factor traditionally emphasised by lawyers in the UK (and, indeed by the Faculty of Advocates and Lord President in response to Roberton);
2. independence from clients is a topic much discussed these days;
3. independence from “lawyers’ guild” factors is the consideration which drove reforms south of the border and are behind the Roberton proposals.
Assuming the government decides to proceed with the single regulator model, I hope that a nuanced discussion can proceed about how to secure improvement in 3 (and, indeed 2) without harming (and, ideally, enhancing) 1.
I don’t think it’s impossible.
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