Professor David Flint’s Response to the call for evidence on the Regulation of Legal Services (Scotland) Bill

Professor David Flint submitted, yesterday, his response to the call for evidence on the Regulation of Legal Services (Scotland) Bill.

Professor Flint supports the principal recommendation of the Roberton Review that an independent regulator should be created to regulate legal professionals.

In his response Professor Flint suggests that the present system, and what is proposed under the Regulation of Legal Services (Scotland) Bill, with regard to the Law Society of Scotland being both regulator and representative body is not compliant with Article 11 of the ECHR.

Professor Flint raises an interesting angle as to why a body such as the Law Society of Scotland cannot compel solicitors to be members of the Law Society of Scotland. He references an article by Wino J. M. van Veen, Associate Professor, Faculty of Law, Free University of Amsterdam: Negative Freedom of Association: Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

It is acknowledged by Professor Flint that this is wholly separate from the issue of regulation (which as he and others have discussed) should not be in the hands of the Law Society of Scotland.

Professor Flint considers that MSPs should be very wary of enacting legislation which is not ECHR compliant and Ministers would not be able to give the necessary HRA certificate given the clear ECHR issue.

With his permission I reproduce Professor Flint’s full response here:

1. What are your views on:
a. the principal recommendation of the Roberton Review that an independent regulator should be created to regulate legal professionals

I consider that the regulation of the legal profession should be carried out in its entirety by an organisation which is wholly detached from any body which claims to be the representative body for any part of the legal profession.

It has been apparent to all in the profession (with the apparent exception of the Law Society of Scotland) that there is an insoluble conflict between a body which represents solicitors and one which regulates them. This inevitably means that the solicitor is unable to obtain that advice and guidance on difficult professional practice issues which inevitably arise as the person to whom (confidential?) guidance is sought is the very person who will impose disciplinary measures should the guidance suggest that all is not as it might be.

b. the Scottish Government’s decision to “build on the existing framework” rather than follow that principal recommendation

This is a massive mistake; the present system is not fit for purpose – whether for the consumer, the profession or the public – and, from a legislative perspective, is almost certainly not compliant with Article 11 of the ECHR.

Please see the excellent article by Wino J.M. van Veen Associate Professor, Faculty of Law, Free University of Amsterdam, Negative Freedom of Association: Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which narrates the relevant case law and explains why a body such as the Law Society of Scotland cannot compel solicitors to be members of the Law Society of Scotland. This is wholly separate from the issue of regulation (which as I and others have discussed) should not be in the hands of the Law Society of Scotland.

MSPs should be very wary of enacting legislation which is not ECHR compliant and Ministers would not be able to give the necessary HRA certificate given the clear ECHR issue.

c. whether there is a risk that the proposals could raise concerns about a potential conflict of interests

As a lawyer who has had to address conflicts of interest in almost 45 years of practice, I cannot understand why the Law Society of Scotland cannot see that there is a fundamental conflict between its role as a representative body, and its role as a regulator. To avoid this clear conflict, the unacceptable present situation in which solicitors are compelled by statute to be members of the Law Society of Scotland, and pay for the representation etc carried out by it, whether or not the member in question agrees with such representation or would prefer to be represented by someone with whose views they agree.

Please also see the excellent article by Wino J.M. van Veen, Associate Professor, Faculty of Law, Free University of Amsterdam, Negative Freedom of Association: Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which narrates the relevant case law and explains why a body such as the Law Society of Scotland cannot compel solicitors to be members of the Law Society of Scotland. This is wholly separate from the issue of regulation (which as I and others have discussed) should not be in the hands of the Law Society of Scotland.

MSPs should be very wary of enacting legislation which is not ECHR compliant and Ministers would not be able to give the necessary HRA certificate given the clear ECHR issue

2. What are your views on the current regulatory landscape for legal services in terms of complexity or simplicity?

The existing system is over complex, and that complexity is driven by the abject failure of the Law Society of Scotland to agree any improvements in the system which might have the result of reducing its power or the creep of its reach.

The present system whereby solicitors meet the cost of unsuccessful prosecutions does not encourage considered action by the Regulator as win or lose, it is the members who bear the costs.

Recent excessive cost increases in the SLCC Levy show the danger of having a regulatory body fixing its own charges which others are required to meet by statute; there is no incentive to minimise costs or be efficient when fees are set on a (self-determined) cost recovery basis.

3. What are your views on the proposed division of regulators into two categories and the requirements which these regulators will have to comply with, as set out in Part 1 of the Bill?

As indicated above and in the Robertson Report (and by others outwith the Law Society of Scotland) there should be a single regulator.

4. Section 19 of the Bill gives Ministers the power to review the performance of regulators’ regulatory functions. Section 20 sets out measures open to the Scottish Ministers. What are your views on these sections?

Whatever the regulator, there requires to be oversight to ensure that the regulator does not overstep its powers, or act in a capricious or excessive manner.

However, political oversight of a judicial regulator gives rise to an understandable concern that there might be a temptation by a politician to interfere for political reasons.

Given that there needs to be oversight, the obvious body to address such would be the Court of Session, given that all solicitors are officers of the court.

5. What is your understanding of the experiences of other jurisdictions, for example England and Wales, where independent regulators have been introduced to regulate legal services?

n/a

6. What are the main deficiencies in the current complaints system and do you believe the proposals in the Bill are sufficient to address these issues?

The present system is over complex. The dual role of the Law Society of Scotland as representative and prosecutor means that there is the risk (often seen) of a miscarriage of justice. The innocent solicitor is at a disadvantage given that the body which is supposed to be representing him generally, is also the body which is prosecuting him.

There is no other circumstance in which it would be considered acceptable for the defence also to be the prosecutor.

I have indicated in a previous response why this situation is not compliant with the ECHR and the Scottish Ministers obligations under the Human Rights Act.

7. What do you consider the impact of the Bill’s proposed rules on alternative business structures might be:
a. generally?

I am not in favour of ABS structures, but if these are to be permitted there seems little logic in not allowing 100% control by non-solicitors.

The issues of the Scottish Solicitors Guarantee Fund and Master Policy need to be resolved as it is not sustainable for solicitors to provide open-ended guarantees for corporates.

b. in relation to consumers of legal services?

It is difficult to determine at this stage what the impact might be; however, there seems little pressure by the public for these changes.

8. What are your views on the provision of:
a. “Entity regulation” (as set out in Part 2 of the Bill)?

Given the changes in the legal services market over the last 50 years, I would agree with the Entity Regulation proposals in Roberton.

b. title regulation for the term “lawyer” (section 82)?

I am wholly against this provision which is purely an attempt by the Law Society of Scotland to extend its empire.

It is also wholly unworkable in practice;

Who would pay for this overreach?

The present situation reserves certain areas of work to solicitors. If there is a perceived issue of the public being misled by persons who are not solicitors, that is better dealt with under the misleading practices law.

I am aware of at least one case (and perhaps no more) of a solicitor being struck off and then continuing to practice in almost identical fashion as a “Lawyer”. This single (or very limited) problem, is better addressed by the court (or the new regulator) having the power to prohibit the sanctioned individual from using the title “Lawyer”.

9. Do you have any further comments on the Bill and any positive or negative impacts of it?

It is clear that the Bill is supported by the Law Society of Scotland as it largely preserves its statutory monopoly and would extend its power into new areas.

The Bill is a wonderful opportunity for the Scottish Parliament to put in place a regulatory and representative system for the legal profession which:

• provides a clear separation between representation and regulation;
• Is ECHR compliant;
• gives solicitors a choice as to by whom they wish to be represented;
• provides effective, and proportionate, remedies for consumers of legal services;
• ensures that the costs of unsuccessful regulatory action are not met by the innocent party or the legal profession as a whole.

Ministers should NOT accept that the views expressed by the Law Society of Scotland are representative of anyone other than themselves – and they are  certainly not representative of a significant proportion of Scottish solicitors.

Submitting Your Response to the call for evidence on the Regulation of Legal Services (Scotland) Bill

You have until 9 August 2023 to provide your response to the call for evidence on the Regulation of Legal Services (Scotland) Bill by the Equalities, Human Rights & Civil Justice Committee of the Scottish Parliament. For details and the link to use to respond see: Views on the Regulation of Legal Services (Scotland) Bill Sought

Blog Posts on Legal Services Regulation Reform

For all blog posts on Legal Services Regulation Reform see: Legal Services Regulation Reform in Scotland