The independent legal services review was led by Esther Roberton and her report was published in October 2018. The report makes 40 recommendations, some of which reflect those we made to the Scottish Government and in our response to the review's call for evidence in early 2018.
Here we answer some frequently asked questions about the Roberton Review.
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 our Case for Change paper on our website.
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 ten 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 December 2015, 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.
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.
We responded to the report in December 2018. In our submission we stated our objection to the primary recommendation, and the reasons why we believed that the proposed model is not right for the Scottish legal profession and would impact negatively on consumers and the legal profession alike. It also raises serious concerns in terms of support for the rule of law and the independence of the legal profession. We have responded to the 39 additional recommendations, some of we support. We 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
You can read the following submissions on our website:
There are several the recommendations in Ms Roberton's report which we support, some 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, including education and training, entry to the solciitor profession and professional 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. 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.
The next stage will be for the Scottish Government to respond to the report. At the moment we are not clear as to what form this response may take. For example, it may be in the form of a consultation, which may or may not be accompanied by a draft bill. Once published, we will carefully consider the contents before submitting any response. We are not clear as to when the Scottish Government will publish its response to the report but expect this to be around summer time. In the meantime, we will continue our engagement programme with stakeholders and members to ensure we submit an informed and supported response. It is important to recognise that this is a long process and it will take several years before change may happen.
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:
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 the time to listen and discuss views and concerns expressed, both in in relation to the report 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 and a 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 RobertonReview@lawscot.org.uk