Strong criticisms of the Scottish Government's consultation on regulating the legal profession in Scotland, which closed in December, have been made in the response by the Scottish judiciary, published today.

“It is of grave concern”, the judges say, “that this consultation fails to recognise suitably the constitutional importance of the Lord President and the Court of Session’s role in regulating the legal profession. The fundamental constitutional principles which underpin the existing regulatory regime appear to have been overlooked.”

Their response emphasises that an independent legal profession, and an independent judiciary, is central to the operation of the rule of law: “the protection of the public from the arbitrary abuse of power by the state depends upon it”. 

Despite previous representations by the judiciary to the Scottish Government on the matter, the judges comment, “the consultation appears to have proceeded on the fundamentally flawed premise that the legal profession in Scotland regulates itself. This is incorrect”. 

The response goes on to set out that the regulator of the legal profession is the Court of Session in the form of the Lord President, who is independent from government and parliament and from those he regulates. “Limited self-regulation by the professional bodies” is controlled by the Lord President, as the ultimate regulator. 

It is not necessary, the response continues, to remove this function in order to reform the legal services market in Scotland. “One does not necessarily follow the other, as appears to be presumed in this consultation.” Issues such as competition, alternative business structures and the professional bodies’ regulatory structure can still be addressed while nthe Lord President retains his position as regulator, and the regulatory regime safeguards the rule of law. 

Removing the power to regulate the legal profession from the court and transferring it to a body responsible to the Parliament, as envisaged in each of the three consultation models, “would create an unwarranted and unacceptable interference by the Government and Parliament with the judiciary. To be clear, such an interference... is, in our opinion, an interference with the rule of law. The judiciary will resist with all its strength this, and any other attempt by Government or Parliament to remove the court’s regulatory powers”. 

The judges note that a new regulatory regime was put in place as recently as 2010 through the Legal Services (Scotland) Act. “It is perplexing that the Scottish Government is now reconsidering the regime which it put in place only just over a decade ago.” The themes of competition, proportionate regulation and consumer interest were already clearly identified as key objectives under the 2010 Act, and “There appears to have been no examination or evaluation of the effectiveness of that legislation. We find it surprising that such radical changes for reform are predicated on such little assessment of the existing regulatory system.” 

They add that they have chosen not to answer some of the questions, including those requiring a ranking or tick box exercise – “simply an unacceptable way to deal with complex issues of such constitutional magnitude as the regulation of legal services in Scotland”. 

Further, “The false premise on which this consultation has proceeded has, unfortunately, prevented any credible discussion of the issues raised”, the judges state. 

Concluding, they reveal that in June 2019, the senior judiciary sent a confidential paper to the Scottish Government outlining concerns in respect of the Roberton report and setting out in great detail, the importance of the Lord President and the Court of Session in the existing regulatory regime. The paper is now annexed to their response.

Click here to access the full response (in red at the end of the consultation), a summary, and the 2019 paper.