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Seeking a better way

19 March 18

The Independent Review of the Regulation of Legal Services has issued its call for evidence. What has it learned so far and what are its main areas of interest? The Journal meets Esther Roberton

by Peter Nicholson

Legal services are under scrutiny. Nothing new in that, you might observe. But the present exercise is fundamental to the Law Society of Scotland’s hopes of achieving far-reaching reforms to its powers and methods of operation as a regulator, and indeed to the very market in which solicitors attempt to earn a living. And now is the time during which anyone with an interest is able to have their say.

Heading the review is Esther Roberton. To describe her, as the review’s web page does, as “current chair of NHS 24”, hardly does justice to her CV, though her self-description of having “become almost by accident a regulation geek” is also on the modest side. Sometime chair of NHS Fife, she moved to the Further Education Funding Council (which scrutinises financial performance and quality), but her “first real experience” of regulation was through seven years on the then Press Complaints Commission. The justice sector followed, first as chair of the offenders’ charity SACRO, then public sector audit and risk posts including with COPFS, which led to her joining its executive board. Earlier roles also saw her progress from coordinator of the Scottish Constitutional Convention to the steering group that drew up the standing orders for the Holyrood Parliament. 

“So I have to be honest and say it was a surprise to be approached to take on the review, but when I looked at it I could see how it brought several strands of what I have done together,” she tells me.

Appointed last April and due to report by the end of the coming summer, Roberton and her (now) 10-strong panel issued their call for evidence only in late January, with a closing date of 30 March. Is that not quite a late stage to be doing so, I wonder?

“No, I’m not so sure about that! We were not sure of the questions we would want to ask. We have first of all been working to build the collective understanding of the panel, because we feel that although there are some people from the professions, we also have a number who are from outwith the legal services field, so we have had to reach a kind of common understanding. Late last year we kicked off the formal stakeholder engagement programme, and that will also run until the end of March, or a little beyond. So our intention always was to get the call for evidence out towards the back end of 2017 or beginning of 2018.”

Emerging picture

What have her own early impressions been, taking a close look as an outsider? “I suppose my first impression, and it’s been confirmed in the Law Society of Scotland’s own revised case for change, has been the sheer complexity of it. I had not realised how many Acts of Parliament have been layered on one another over the years. I have had solicitors themselves tell me they struggle to understand all the regulation, and it has become clear to me that that is a view widely held across the profession and also the more informed public.”

After touching on the complexity of the complaints system and the confusion caused by people using the terms “lawyer” and “solicitor” interchangeably, she adds: “So I’m very clear that the first principle we have all agreed on is that we have to develop a system that is much simpler and much easier for everyone to understand and that serves both the consumer and the profession better than the one we currently have.”

Evidence – beyond the anecdotal – is however lacking as to how consumers go about choosing an adviser and what they understand regarding costs and the like, so the review has obtained budget at least for some limited research into consumer behaviour and the use made of the unregulated sector. Results should be presented shortly.

From meetings and discussions to date she has also received “the clear message” that the interests of the big firms are very different from those of the high street firms, not to mention practices that fall somewhere in between. She points out: “Of course we have to keep reminding ourselves it’s not just about solicitors; it’s about legal services, so we have the Faculty and commercial attorneys and others too.” 

One recurring point of contention seems unlikely to be directly addressed – that of the Society’s dual role relating to the profession’s and the public interest. Roberton regards her brief as to determine the best way to regulate, a separate matter from the Society’s representative role.

First principles

In its written submission to the review, the Society has put in a strong pitch that legal services of whatever description should be regulated – which raises the obvious question of how these are to be identified and defined. Roberton’s starting point, going back to “first principles” about regulation, is that “One of the first questions to be asked is why regulate, and the next one is what mischief are you trying to prevent. The evidence so far, and it is not comprehensive, is that the issue is not one of mischief; there is no significant evidence to suggest there is lots of mischief going on. The issue is much more about the power balance between the solicitor, as the provider, and the client.

“It occurred to me that even if the only time you use a solicitor is when you are buying a house, that’s a very positive thing to be doing but it’s still very stressful. But many of the other times you might be looking for legal services are times when you are in difficulty, in trauma or whatever, so there is that issue about the power balance between the two and about protecting the consumer. But I’m very clear, I don’t think we’re here to address a profession that’s even perceived as being guilty of mischief.”

Part of the background also is the so far unsuccessful attempts to legislate for a workable alternative business structures regime – leading some providers to devise their own workarounds – and with that the impact of the system now established south of the border.

Roberton reveals that “We took an early decision that we need to be aware of what England & Wales is doing, not least because of the cross-border nature, but that we’re not out to replicate the English model.” Not least, she recognises its even greater complexity in considering what is appropriate for the much smaller Scottish jurisdiction, with far fewer alternative providers. 

And there are other considerations. “There are two separate issues for me, because one is I’m here from the point of view as much from the consumer interest, which would say that opening up the market to competition should be a good thing, but I’m also interested in the Scottish economy, so I don’t want it to turn out that all of the economy in Scotland is served from English firms, and obviously we’ve already seen many mergers and takeovers.” 

She adds: “A couple of people on the panel said actually we should look further afield, and we are gathering some evidence about other jurisdictions across the world, but in terms of timing and resource there’s only so much that we can do. I think that what I’ve found interesting is that every jurisdiction I’ve looked at has either just been reviewed or is about to be reviewed or is in the middle of a review, so it’s obvious that every country that we’re looking at is addressing the same issues.”

I ask whether the subject is proving controversial, or there is broad agreement as to the direction of travel. “I think we have reached a position where there is pretty broad agreement on the analysis of the problem. I don’t know that we’ll necessarily find there will be broad agreement across the professions about the proposed solutions, and that’s something we’ll have to bear in mind, but yes, it’s very controversial because there are some very strongly held views across the whole spectrum. And not just in the professions.”

Into the framework

The review is not yet ready to start formulating its proposals, but Roberton does give some indications as to its areas of interest. One comes when I ask what comparisons can be drawn with the medical sector, given her background there. While not suggesting that that sector does anything more effectively than the legal, and recognising the different challenges it faces, she observes: “One of the parallels for me, which we’ve not gone into in any detail yet, is fitness to practise, and the process that medics have to go through to be revalidated and reregistered, and I’m looking at what the solicitor has to do on that kind of front. The Faculty has already begun to address that through peer review and the like for advocates. So that will be one of the areas we will want to have a look at.”

More generally, she appears sympathetic to the Society’s approach of seeking an enabling rather than a restrictive framework: “Our principle has been that we would like to come up with a system that is more enabling rather than prohibitive, and allows more flexibility over the kind of business models to address some of the many concerns that the profession themselves have raised.”

The Society’s written submission contains a detailed critique of the 1980 Act and the perceived weaknesses of each provision, but will the review go to that level of detail or focus more on the framework for regulation? “I think it will be both,” Roberton replies. “We’ll have to say what the regulatory framework is, we’ll agree the first principles, so it should meet the principles of better regulation, but we will also hopefully have some detail in terms of what we think the scheme might look like. One of the things I will have to work quite hard on over the next four or five months is the pitching: what is it right to put in my report for the minister and what will be best left for a bill team once the minister makes a decision.”

As for the complaints process, both the Society and the SLCC are keen to explore what improvements might be made ahead of the likely timescale for primary legislation following the final report. Roberton, who was unimpressed at the sight of the two bodies squaring up to each other in court last year, is pleased to see them collaborating in this and would be supportive if Government officials can produce something from their initial scoping work: “The big if is if it can be done without primary legislation, but that would be something that I would think would be really positive because the consumer will benefit and the profession will benefit.”

What do you need?

Controversial or no, Roberton is clear that the end product of the review is to be her own report, and while she would prefer to have an agreed view with her panel, “in the end my commission is to provide a report to the minister, and it will be for her to decide whether or not she wants to take that forward and to then engage with other people”.

And while she describes her task as “the single most fascinating intellectual challenge I have ever taken on”, she also states that: “One of the things I have been most heartened by is the calibre of the people on the panel, their commitment and enthusiasm for the task in hand. There is real enthusiasm to do something that makes it much better for the consumer and much better for the provider, the professional. And that’s my starting point.” 

What would she most like to hear from solicitors about, through the present call for evidence? “My biggest interest from the professional responses will be what it is about the current regulatory regime that is inhibiting, if anything, and what would they want a new regime to enable them to do? It’s a question that I’ve already asked, formally or informally, at many of the meetings that we’ve had, what does the current regime prevent you from doing, and what would you like the new regime to be able to do? If people don’twant to write a substantial response, those are my two high-level messages.” 

For a short video interview with Esther Roberton, click here.

Scope of the review

The remit for the Independent Review of the Regulation of Legal Services is to review the regulation of legal services in Scotland and in undertaking this review, to:

  • consider what regulatory framework would best promote competition, innovation and the public and consumer interest in an efficient, effective and independent legal sector;
  • recommend a framework which will protect the public and consumer interest, promote the principles of accountability, consistency, flexibility, transparency, cost-effectiveness and proportionality;
  • ensure that the regulatory framework retains the confidence of the profession and the general public;
  • undertake specific research into the extent of the unregulated legal services market in Scotland and investigate any impacts on consumers, as well as developing a better understanding of the structure of the legal services market.

The call for evidence closes on 30 March and can be accessed here.

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