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Public want regulation independent of profession, SLCC claims

11 September 2019

The great majority of the Scottish public want regulation of the legal profession to be independent of the profession, the Scottish Legal Complaints Commission claimed today.

Polling carried out for the Commission in July by YouGov, using a sample of 1,003 adults, found that:

  • only 19% of the public felt that it was acceptable for an organisation to both represent lawyers and regulate them; 
  • only 21% were confident that a body with both functions could deal with complaints about lawyers fairly; 
  • 83% felt the regulator should be subject to freedom of information legislation, used as a proxy to start assessing the public’s view of accountability and transparency.

The work was commissioned following the publication of the independent review of legal regulation by Esther Roberton, which noted a lack of consumer input and evidence within the current regulatory model, and proposed a move to independent regulation under a single regulator for all branches of the legal profession.

The proposal has proved controversial, being opposed by the Law Society and Faculty of Advocates on the basis that the independence of the profession would actually be compromised if it was regulated by a body appointed or whose appointment was influenced by the Government, as would be the case if the Scottish Parliament were made formally responsible for its appointment.

Ministers are currently exploring through a working group whether any consensus can be reached on a way forward.

The SLCC's results come ahead of a major conference on Thursday looking at the future of regulation in Scotland.

Commenting on the findings, Neil Stevenson, SLCC chief executive, said: "When we commissioned the poll we were expecting the Scottish Government would be consulting on the proposals in the autumn, and we wanted to ensure our submission was evidence based. Whilst we had access to data from others on the views of the profession, no one had ever polled the public on these issues to ask what they looked for in good regulation, so the SLCC had no evidence on which to form a position. We wanted to make sure we understood the public perspective when we responded.

"The fact research like this has not been done before perhaps emphasises the need for a move from the self-regulatory model where lawyers are regularly consulted and allowed to vote on many issues, but the public’s interest is often forgotten, with no major research in the last couple of decades."

He added: "What we found was perhaps not surprising: public views preferred the types of model most other regulated sectors have moved to over the last quarter of century. This is consistent with the recommendations of the independent review.”

"We understand further consultation on the review outcomes is now being scheduled for next year. This poll is just a snapshot. The consultation must ensure meaningful, substantive and properly resourced engagement with the public as part of the process. This would be consistent with the Scottish commitment to using ‘service design’ approaches, in which users of services are actively engaged from the start in deciding how that service should work."

Mr Stevenson concluded: "It is often said justice must be done, and be seen to be done. In the same way we must ensure not just that we say the public interest has been considered, but can show how the public’s views are both gathered and used to inform the system."

Lorna Jack, chief executive of the Law Society of Scotland, said in response: "Using professional bodies like the Law Society to regulate certain sectors has been shown to be extremely effective and highly efficient. It is why the current system used here in Scotland is also replicated in places like Ireland, Canada, Australia and a number of states in America. It is also used in other professions such as accountancy, surveying and teaching.

"We also benefit from more than 100 non-solicitors who sit on our regulatory committees. They play a major part in all of our regulatory work and decision-making, and ensure the public interest sits at the very heart of our work."

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Andrew Stevenson

Tuesday September 10, 2019, 16:30

The first two findings merely reflect the fact that the Law Society of Scotland has at its heart a conflict of interest insofar as being both a regulator and a representative body of solicitors. The results of the public poll demonstrate that the conflict is obvious to the man or woman in the street.

However, these findings do not necessarily lead to the conclusion that solicitors should not be self-regulating. Putting it another way, these findings do not entitle the SLCC to claim that the public wants "regulation of the legal profession to be independent of the profession". They simply do not want the same body both regulating and representing. They may be satisfied if the Society were to lose its representative function, but it is unclear if they were questioned about that.

If I were asked whether I was satisfied that opticians or accountants regulate themselves I would answer in the affirmative; they have the knowledge and experience to be best placed to hold their peers to reasonable standards. That scrutiny, accountability and desire to maintain quality are hallmarks of any profession.