The Independent Review of the Regulation of Legal Services by Esther Roberton as commissioned by the Scottish Government has now been published. The Scottish Law Agents Society (SLAS) has a particular interest in this development because SLAS was formed by Scottish solicitors in 1884 for the express purpose of setting up a central and legally enforceable regulation of solicitors.
This was felt to be necessary to protect the public interest in standards of education, training and conduct. These aspirations were effectively realised in the Solicitors (Scotland) Act 1980. The education, training and admission to practice of solicitors, the provision of Legal Aid and, in order to provide clients with gold plated security, a Client Protection Fund and a professional indemnity policy along with a complaints service were all efficiently maintained by the Law Society which was governed by a Council of solicitors which was, however, subject to direction by the Lord President of the Court of Session.
The regulation of the legal profession was thus firmly fixed within the judicial branch of state authority. From 1986 onwards, however, successive governments followed a policy of reducing the judicial control of that regulation. Ultimately, the Legal Services (Act) 2010 sought to exclude solicitors from control of that regulation altogether. This created a confused statutory framework with successive legislation appearing to contradict itself.
The Law Society requested the Scottish Government to convene a review in order to resolve the statutory conflicts. It was somewhat ironic, therefore, that the review which was commissioned by the Government in 2017 and reported in 2018 should recommend the replacement of the Law Society with a new independent body, leaving the Law Society with virtually no function.
Indeed, so closely in line with the preceding direction of statutory travel are these proposals that the title of the Independent Review provides a novel and interesting insight into the meaning of the word independent. SLAS is now considering the view that these developments would take us back to pre-1884 when the solicitors’ profession had no national body with authority to compel standards of education, training, conduct, etc.
As to the content of the review itself, the two main interests at its heart are stated to be the interests of the public and of the consumer and the promotion of a flourishing legal sector in Scotland. Although the rule of law gets a mention, no rationale is provided as to how the removal of a Council of solicitors and the Lord President from the regulatory process can be reconciled with the rule of law. Previously, these were the mechanisms which properly separated the judicial and executive functions of the constitution. The removal of these mechanisms effectively transfers judicial powers to the executive, contrary to the well established constitutional doctrine of the separation of powers. There may be a cogent argument in its support but the review ignores the issue altogether.
As far as the interests of the public and consumers are concerned, it hardly requires to be stated that that interest is vested heavily in an independent judiciary supported by a vigorous and independent legal profession rather than one controlled by a government or parliamentary agency. This is particularly the case when that parliament and that government have themselves been the subject of judicial procedures.
As far as the promotion of a flourishing legal sector is concerned, the Review appears to regard the legal industry as a potential earner for the Scottish economy. That objective seems to outrank any consideration of the rule of law and ignores the risk to the consumer of the maximisation of profits from complex legal services where that provision is controlled by persons or entities who are not subject to solicitors’ professional ethics.
Also, the review mistakenly assumes that all legal services are provided to consumers. One third of the profession works in-house (exclusively for their employer) and doesn’t provide services to individuals. The large commercial firms which account for broadly another third of the profession often now owned outwith Scotland provide services exclusively to businesses. So a solution is being proposed which has no relevance to the majority of the profession and potentially threatens to hugely increase the burden on High Street solicitors.
Michael Sheridan is Secretary of the Scottish Law Agents Society. Views are invited to firstname.lastname@example.org