Legal services review frequently asked questions

The independent review of legal services was announced by the Scottish Government and commenced in April 2017.  The 18-month review was led by Esther Roberton, Chair of the NHS 24 Board. The review was initiated by the submission we made to the government in 2015 calling for modernisation of the way in which legal services are regulated in Scotland. We argued for the need for a flexible and agile regulatory framework which would allow for responsive and targeted regulation to strengthen consumer interests and which would continue to uphold the standards and reputation of the Scottish solicitor profession.

You can read all of our submissions on our website.

The review was driven by our 2015 paper, the ‘Case for Change’  in which we called for changes to the current regulatory framework, a framework underpinned by legislation, the Solicitor (Scotland) Act 1980, which is almost 40 years old.  We called for more flexible regulation which better reflects the realities and challenges of the modern Scottish legal sector, the greater expectations of consumers, growing diversity of business models, and the innovation in the development of technology 

The Scottish Government appointed Esther Roberton, Chair of the NHS 24 Board, to lead the review.  Following her appointment, Esther Roberton appointed the following people to her review group (their time on the review group is shown in brackets):

• Christine McLintock, Past President, Law Society of Scotland (April 2017- Oct 2018)
• Alistair Morris, Past President, Law Society of Scotland (April 2017-January 2018)
• Laura Dunlop QC, Faculty of Advocates (April 2017- Oct 2018)
• Derek Ogg QC, Faculty of Advocates (April 2017 – March 2018)
• Nicholas Whyte, Chair, Scottish Solicitors’ Discipline Tribunal (April 2017- Oct 2018)
• Ray Macfarlane, Chair, Scottish Legal Aid Board (April 2017- Oct 2018)
• Jim Martin, Chair of SLCC (April 2018 – Oct 2018)
• Neil Stevenson, CEO of SLCC (April 2017 -December 2017)
• Dr Dame Denise Coia, Chair, Healthcare Improvement Scotland (April 2017- Oct 2018)
• Professor Lorne Crerar, Chairman, Harper Macleod LLP (April 2017- Oct 2018)
• Trisha McAuley OBE, independent consumer expert (April 2017- Oct 2018)

Read more about the review group members on the Scottish Government website.

In October 2018, the Scottish Government published Esther Roberton’s report Fit for the Future – Report of the Independent Review of Legal Services Regulation in Scotland.  In total the report made 40 recommendations.  The primary recommendation of the report was that: ‘There should be a single independent regulator for all providers of legal services in Scotland, independent of those whom it regulates and of Government, responsible for the whole system of regulation including entry, standards, monitoring, complaints and redress, which covers individuals, entities and activities. That independent regulator should be a body accountable to the Scottish Parliament and subject to scrutiny by Audit Scotland.’

This primary recommendation was accompanied by 39 further recommendations focused on 10 themes, such as establishment and accountability, entry, standards and monitoring, entity regulation and regulation of activities.

In addition to our Case for Change paper, which we submitted to the Scottish Government in 2016, over the course of the review we made a number of submissions setting out the need for a new modern, flexible and enabling regulatory framework. Most of the legislation covering the operation and regulation of the legal market is over 35 years old. It's increasingly out of date and unfit for purpose.  Whilst some reforms were brought in 2007 and 2010, the whole framework can be confusing and, in some cases, contradictory.  That is why we believe new legislation is needed to better protect consumers and allow the Scottish legal services market to thrive.  Our submissions contained a number of recommendations which we believe are necessary to address our concerns. 

All our responses to the legal services review are available to read on our website

As Esther Roberton states in her report; ‘there is little evidence of significant wrongdoing in the current model’ and there is a lack of reasoning which supports the main recommendation.  Although the report has stated that the current model ‘can lead to a perception that the two roles [regulatory and representative] are in conflict’, it fails to highlight any examples or evidence of actual conflict.  The recommendation proposes a radical change to the regulatory structure and proposes a model which is untested and has not been adopted in any jurisdiction in the world.  Other jurisdictions, for example Ireland, have looked at a similar model but have recognised the issues and problems that this would bring and have abandoned plans for introduction.  The regulatory model recommended risks weakening public protection and increasing costs for those who pay for legal services.

The Society's Council responded to the report in December 2018. In its submission the Council stated our objection to the primary recommendation, and the reasons why the proposed model is not right for the Scottish legal profession and would impact negatively on consumers and the legal profession alike. Concerns were raised as to the cost of the proposed model and the detrimental impact this would have on consumers, who would ultimately bear the burden, though increased fees, of paying for any new regulator. In addition, the Council responded to the 39 additional recommendations, some of which the Council supports. The response also set out our alternative model for an improved complaints process which would see the creation of a Scottish Legal Ombudsman Service (SLOS) to replace the SLCC

In June 2019 the Society's Regulatory Committee submitted its response. The Regulatory Committee concurred with many of the views of the Council.  However, in relation to the complaints model, rather that proposing a single model, the committee took the opportunity to suggest principles which they believe any proposed complaints model should adopt and provided a number of examples for consideration.  

You can read the following submissions on our website:

Letter to the Minister for Community Safety

Roberton Review recommendations

Complaints model

There are several the recommendations which we support, most of which reflect our own recommendations to the review group.  These are the recommendations we believe will strengthen consumer protections, promote a vibrant and dynamic Scottish solicitor profession and which recognise the continued changes in the way in which legal serves are delivered.  For example, those recommendations we support include restriction on the use of the term ‘lawyer’, powers to regulate at entity level and the creation of a flexible regulatory framework.

You can read more about our responses to the recommendations we support and also those disagree with.

Over the course of the review we met with Esther Roberton on several occasions.  The discussions focused on ensuring a clear understanding of the current regulatory model, the needs of both our members and consumers and the wider legal services market.  We used these opportunities to further discuss our own recommendations and share views on what we believe would be regulatory reforms that would promote and strengthen consumer confidence and support a strong and evolving legal sector economy.  As well as making written submissions to the review, we also communicated on a regular basis with the review secretariat, responding to questions and sharing information to help inform and develop an appreciation and recognition of the role of the Society and our members and the valued services provided by Scottish solicitors to consumers and businesses. 

Yes.  However, we recognised that our statutory obligations and duty to protect and promote the interests of consumers, the public interest and to promote an independent, strong, varied and effective legal profession was becoming increasingly undermined by outdated legislation. 

We strive to be a world class professional body, meeting and exceeding our statutory duties.  However, we are constrained by a regulatory framework which is prescriptive and fails to consider modern legal services.   The only way to ensure that we continue to meet our statutory duties and the expectations of our members was to press for a new regulatory framework.

In our submissions we have been clear that we agree with the principle that complaints relating to service should be investigated and decided independently, a role which the Scottish Legal Complaints Commission (SLCC) currently fulfils.  However, we set out our concerns that the SLCC is currently not subject to any independent oversight.   Our recently proposed model, which we submitted to the Scottish Government in response to the report, proposes that the SLCC is replaced by a Scottish Legal Ombudsman Service (SLOS) which would have a similar function to that of the Legal Ombudsman for England and Wales and would see service complaints continue to be handled independently.  Under our proposed model the Lord President’s Office would adopt an oversight role over both SLOS and the professional bodies within the legal sector.

We have robustly regulated the Scottish solicitor profession for 70 years, and as Esther Roberton states in her report, there is no evidence that the current regulatory model in failing.

However, Ms Roberton has proposed removing all regulatory powers and responsibilities from the Society and transferring them to a new, untested and inevitably inexperienced regulator.  This would include all elements of regulation, such as education and training, entry and standards, rules and guidance and all complaints/redress handling,   Any new regulator would be directly accountable to the Scottish Parliament, raising serious concerns in terms of support for the rule of law and the independence of the legal profession and the ultimate cost borne by solicitors clients in funding any new regulator. Given the prime importance of protecting the public, we believe such a change presents a material and unnecessary risk to the interests of consumers and would significantly damage the global reputation of Scottish legal profession.

In June 2019 the Scottish Government announced that it intends to work in partnership with stakeholders, including the Scottish Legal Complaints Commission, the Faculty of Advocates and ourselves to develop proposals for a reformed legal service regulatory framework. The Scottish Government has committed to publish a public consultation which will help shape future reform. In the meantime, we will continue our engagement programme with stakeholders and members to ensure we submit an informed and supported response. We are committed to working in partnership with the Scottish Government and all stakeholder in the legal sector to help ensure the deliverance of a regulatory framework which is measured, proportionate and promotes a strong Scottish legal sector    It is important to recognise that this is a long process and it will take several years before change, if any, is brought about. 

One area of concern in which there is a consensus of opinion is in relation to the current complaints process.  All stakeholders agree that the current complaints model is unwieldy, complex and time consuming, creating  and exacerbating anxiety both for the complainer and respondent. Over recent months we have worked closely wiht the Scottish Legal Complaints Commission, Faculty of Advocates and the Scottish Government to identify and agree changes that can be made to the complaints process, those that do not require primary legislation and can be made in the interim period before any new regulatory legislation is introduced.  

Yes.  Feedback we have received from other legal professional bodies outside Scotland has, without exception been supportive of our position and we have received positive feedback from those of our members practicing elsewhere around the globe.

As the Roberton Report has been published following the review, there is unfortunately no opportunity for further input into the report. However, our members can still express their views and help shape the recommendation outcomes in a number of ways: 

• Contact your constituency MSP
• Contact your Law Society Council member
• Send your views to us at [email protected]

We also encourage members to read and respond to the Scottish Government's consultation once published and we will keep all our members updated on news regarding the publication timeline.

Prior to, and since, publication of the report we have taken forward an extensive engagement programme and have met with our members, both on a one-to-one level and at constituency events.  We have also met with stakeholders, other professional bodies and MSPs.  We have taken time to listen and discuss views and concerns expressed, both in in relation to the report's recommendations and the current model.  What has been very reassuring to hear is that there is almost unanimous support for the Society’s position and the current model, alongside significant recognition of the important role we play. 

As a membership organisation we are very keen to listen to the views of our members.  If you or your firm or your in-house legal team would like to meet with us to discuss any aspect of the legal services review, and whether or not you are in agreement with our position, please contact us at [email protected]

What we learn through our engagement programme, and speaking with other professional bodies, will help to inform and shape our future work.

The Competitions and Markets Authority (CMA) published their response to the Roberton Report in June 2019, supporting many of the recommendations. At the same time the CMA  announced the intention  to conduct a Scottish Legal Services market study with the purpose of supporting the work of the Scottish Government  in assessing the recommendations and options.  The CMA has indicated that their work will have three points of focus:

• Research on legal services providers’ commercial strategies.
• The benefits of independent regulation of legal services in Scotland.
• The impact of the current legal services regulatory framework in Scotland on innovation, including how regulatory costs may affect competition.

We shall be engaging with the CMA during the market study, helping to inform so as to ensure a fair, accurate and balanced approach.  We expect the CMA market study to commence in late summer 2019.

If you have any other questions or wish to discuss the legal services review further, please contact us by email at [email protected]

Alternatively you can contact your Law Society Council Member