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Ministers to seek consensus in taking Roberton forward

25 June 2019

Interim improvements to the legal complaints system, and consultation with a view to building consensus on the future for professional regulation, are promised in the Scottish Government's response to the Roberton review, published this morning.

Ministers recognise that action is needed to streamline the complaints system, but that the recommendations in Esther Roberton's report are built on her controversial central proposal to set up a new independent regulator for all legal professionals, taking those functions from the existing professional bodies.

Introducing the response, Ash Denham, Minister for Community Safety, notes the broad agreement that exists around the need to improve the current framework for complaints, but that overall there is little consensus on the extent to which wider reform is required, and how the structure of the complaints and redress process should be administered and formed.

She continues: "With this in mind the Scottish Government is working with the Law Society of Scotland, the Faculty of Advocates and the Scottish Legal Complaints Commission to attempt to identify improvements to the complaints process that may be made in the interim.

"Views are much more polarised in respect of the primary recommendation of the report, to establish an independent body, responsible for the regulation of all legal professionals in Scotland, and the implications this may have on the existing landscape.

"I am clear that any new system of regulation should incorporate the competitive provision of legal services, the public and consumer interest; and the promotion of a flourishing legal sector in Scotland; whilst encompassing the rule of law. The Scottish Government will seek to build consensus, where possible, on the way forward prior to deciding on a course of action."

The minister goes on to promise a public consultation to inform the design of a new statutory framework for a modern regulatory system, and the extent of reform, with a view to introducing a legal services bill to Parliament.

The response itself states: "The Scottish Government is open to views on how best to deliver the longer term aims set out within the remit of the review and will consider other means of delivering the improvements the chair sought along with the primary recommendation of the report, and so will issue a public consultation to help inform the future direction of reforms. However, this response signals the Scottish Government's willingness to take forward supported recommendations that will deliver an enhanced system of legal services regulation in Scotland."


John Mulholland, President of the Law Society of Scotland, responded: "We strongly welcome this response from the Scottish Government, particularly the commitment to consultation. The minister has set out a positive and practical way forward, offering an opportunity to build a consensus on much needed reforms to legal services regulation."

He added: "There was much in the Roberton report to support. Indeed, many of her recommendations flowed from our own proposals for reform. However, the Scottish Government has rightly recognised that the suggestion of a wholly new regulatory body has polarised opinion. We believe a new body risks diluting professional standards and increasing costs. This is not in the interests of consumers or the legal profession.

"Looking ahead, the Scottish Government is absolutely right to focus on the more immediate task of improving the system for legal complaints. The handling of complaints is all too often a slow, complicated and expensive process. We have been working closely with the Scottish Legal Complaints Commission and Faculty of Advocates on a package of reforms which could make the system quicker and more effective. With Scottish Government support, this work can be taken forward as a priority."

The Faculty of Advocates was also pleased at the minister's approach. Dean of Faculty Gordon Jackson QC commented: "We welcome and support the Scottish Government’s commitment to work towards building consensus on the future shape of the legal sector’s regulatory framework.

"The Faculty will be delighted to take the opportunity provided by the planned consultation to put forward proposals.

"Pending the consultation, the Faculty will be pleased to continue working with the Scottish Government and others to identify immediate improvements which can be made to the process for making and handling legal complaints."

Also welcoming the response, but from a different angle, Neil Stevenson, chief executive of the Scottish Legal Complaints Commission, observed: "The profession has tended to make the case against a move to independent regulation of the legal profession, suggesting regulation should continue to be led by a body which is also the representative association, or trade body, for lawyers.

"We would note that the Competition & Markets Authority last week supported the case for change in this area, announcing two research projects to examine 'the benefits of independent regulation of legal services in Scotland and whether the current institutional arrangement – where the bodies regulating the professions are also those representing and lobbying for them – dampens competition' and 'the impact of the current legal services regulatory framework in Scotland on competition, particularly on innovation and the entry of new business models to the market'.

"The major institutional voices, and the key stakeholders named in the response, have significant knowledge and expertise to share. However, we’d also call on the Scottish Government to ensure the consultation approach works to actively engage consumers and small businesses to share their views. The lack of consumer data on legal services has been cited in all reviews in the last 20 years, and this is a tremendous opportunity to work to remedy that situation."

Click here to view the Government's full response.

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