IT IS fair to say that NHS 24 chairman Esther Roberton received a mixed response when she last year mooted creating a new legal regulator that would not only oversee the Scottish profession but deal with complaints against it too.
At the moment regulatory duties fall to the Law Society of Scotland, the Faculty of Advocates and the Association of Commercial Attorneys, with the Scottish Legal Complaints Commission (SLCC) dealing with complaints against practitioners and the Scottish Solicitors’ Discipline Tribunal determining whether disciplinary action is required.
Having conducted an 18-month review of the sector, Ms Roberton said in October that those responsibilities should pass to a single, independent regulator. Her recommendation was, she said, “framed by the fundamental consumer principle that a good regulatory system should be independent of those being regulated”.
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While the SLCC welcomed what it called Ms Roberton’s “radical recommendations for reform”, the Law Society said it “strongly opposed” the idea of a single regulator, claiming the move would “risk reducing public protection in Scotland”.
Now, seven months after the review concluded, the Scottish Government has issued its own response, confirming that it will put the matter out for public consultation before coming to any conclusions of its own.
Community safety minister Ash Denham, whose remit covers the legal profession as well as access to justice, said: “Following engagement with key stakeholders we have identified differing views within the sector on the recommendation that there should be a single independent regulator for all providers of legal services.
“To build consensus on the way forward we will launch a public consultation later in the year. We want to hear from stakeholders and the public on how the proposed reforms within Esther’s review can support professionals with a regulatory system that is proportionate and flexible.
“I strongly encourage all those involved in the legal profession to make their views known and look forward to a robust and constructive debate on the future of legal services regulation in Scotland.”
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As the consultation document is still being drawn up, though, it is clear that no decisions will be taken until the start of next year at the earliest, with any resultant changes having to wait for legislation to be passed before being implemented.
Despite that, the consultation process has been broadly welcomed by the sector.
SLCC chief executive Neil Stevenson said it shows the Scottish Government is committed to considering new legislation with a view to ensuring the profession is “more proportionate, consistent, accountable, transparent and targeted”.
Law Society president John Mulholland, meanwhile, said Ms Denham has outlined a “positive and practical way forward”, though he reiterated that the society remains opposed to the idea of a new body.
“We believe a new body risks diluting professional standards and increasing costs,” he said. “This is not in the interests of consumers or the legal profession.”
It is not a view shared by the Competition and Markets Authority (CMA), which last week said it will carry out research into the Scottish profession so it can “assist the Scottish Government in determining how to take forward the recommendations made by [the Roberton Report]”.
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Though it does not intend to publish its findings until the beginning of 2020, the CMA said it welcomed Ms Roberton’s proposals because “independence of a regulator from the providers that it regulates is a key principle for any regulatory framework for securing the public interest”.
“There is an inherent conflict of interest in effectively regulating a profession in the public interest, while also representing and lobbying for the profession’s interests,” it said. “In our view it is critical that this conflict of interest is properly addressed by a regulatory framework that ensures independence of the regulator from the providers that it regulates.”
In the meantime, the Scottish Government has said it will work with the SLCC, Law Society and Faculty of Advocates to identify improvements that could be made to the complaints system in the short term.
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