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  1. Home
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  5. June 2023
  6. Editorial: Half baked

Editorial: Half baked

The flaws coming to light in the Regulation of Legal Services (Scotland) Bill suggest that those in charge of it have not fully grasped how the profession currently operates and is regulated
19th June 2023 | Peter Nicholson

It seems that the more one studies the Regulation of Legal Services (Scotland) Bill from a legal professional standpoint, the more flawed it appears.

That was the impression gained from attending the Society’s webinar last month on the bill, on which we report in this issue. Not only from the headline concerns about the proposed ministerial powers to intervene directly in the regulator, and even in individual practices, which are indeed alarming – and it is believed unprecedented in a western democracy, whatever the circumstances in which they might actually be invoked. Not even from the provision that practice rules would need ministerial approval, from which one could say that having allowed the professional bodies to remain as regulators, the Government appears to be recognising professional independence on the one hand while taking it away with the other.

In fact there is much more. The Society believes that by extending to solicitor-owned firms the narrow definition of “legal services” in the alternative business structures regime, traditional practices would be unable to provide estate agency or incidental financial business services without the expense of separate regulation. The operation of the waiver regime would be hamstrung by a prohibition on it applying to any rule relating to conduct. Some of the flaws in the complaints system are left untouched. Most startlingly, big firms would be unable to operate in Scotland at all, due to lack of provision for their registered foreign lawyers.

That last matter is said by the Government to be an oversight, but the overall impression is that the drafters of the bill, and/or those instructing them, have not got to grips with the way the profession currently operates and is regulated, which is very worrying given the length of time it has taken to get to this stage and the time we would likely have to wait for any further amending legislation.

Meanwhile, the Holyrood committee inviting submissions ahead of its stage 1 report is asking why the Government hasn’t followed the Roberton approach of an independent regulator. Not that it is likely to bring about such a change to the bill – though MSPs on the committee have to decide whether to approve its general principles – but the profession will have to make its voice heard on a number of fronts if it wants to emerge with a workable regime.

Honoured

Others will comment on my award of honorary membership by the Law Society of Scotland. The news came out of the blue, and I cannot but wonder at finding myself in the company of the distinguished list who have previously been given such a rare honour, but I am deeply touched and grateful in equal measure. It has been a privilege to edit this Journal for close on 20 years now, and other respected titles before that, and if people appreciate the results of my labours, I am content. Thank you.

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Regulars

  • People on the move: June 2023
  • Book reviews: June 2023
  • Reading for pleasure: June 2023

Perspectives

  • Opinion: Jen Ang
  • President's column: June 2023
  • Editorial: Half baked
  • Viewpoints: June 2023
  • Profile: Paul Gostelow

Features

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  • How should we regulate AI?
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  • Rethinking those ts and cs
  • Show us the money: immigration for the better off
  • Accounting for suspicion
  • When law school starts earlier

Briefings

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  • Corporate: Bill gives CMA consumer enforcement powers
  • Agriculture: A question for the Land Court?
  • Intellectual property: Who owns AI generated copyright?
  • Succession: Variation by an attorney?
  • Sport: Participation in LIV Golf ruled out of bounds
  • Scottish Solicitors' Discipline Tribunal: June 2023
  • Data protection: Meta's mega matter
  • In-house: Scanning wider horizons

In practice

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  • Trainee CPD goes O Shaped
  • Bill with a high price
  • The Eternal Optimist: Solving the trust equation
  • Risk: Top tips for trainers and trainees
  • Tradecraft tips: June 2023
  • AML: Source of funds – have we moved forward?
  • Ask Ash: Chill at first sight
  • OPG update: June 2023

Online exclusive

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In this issue

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