Legal services regulation reform: consultation analysis

Analysis of the responses to the public consultation on reform of legal services regulation in Scotland, which ran between 1 October and 24 December 2021.

Other Comments

Lack of Consideration for Different Sectors of the Profession

Concerns were raised across the written consultation responses and in the focus groups about the perceived lack of consideration or clarity around how the regulatory models would operate for different sectors, in particular between solicitors and advocates, as well as for in-house solicitors and the not-for-profit sector.

A few felt that the consultation paper, and the proposed reforms more generally, were focused on solicitors rather than advocates. However, it was highlighted that these two professional strands needed to be considered differently due to their differing roles and client relationships.

It was also noted that there had been changes to the legal profession's structure, with increasing numbers of solicitors now working in-house for firms and across the public sector. Respondents felt this was not well reflected in either the Roberton Report or the consultation document/proposals for reform, and suggested that different regulatory models may be required for private practice and in-house arrangements.

Others highlighted the need for better consideration of the not-for-profit sector, noting that they were over-regulated, being subject to both the legal sector regulations and charity sector regulations. This was considered to be a barrier to establishing Law Centres/not-for-profit providers and needed to be considered within any review or reforms.

Similarly, one focus group respondent also highlighted the Scottish Legal Aid Board's (SLAB) role in providing access to justice, as well as their complaints procedure, and felt that they also needed to be reflected in the consultation document or any review of legal services regulation.

Consideration of Minority/Vulnerable Groups

A few organisations representing minority and/or vulnerable groups responded to the consultation - this included Disabled People's Organisations (DPOs) (for both working in and trying to access legal services), and those representing survivors of domestic abuse (mostly women and children). These respondents highlighted limitations, restrictions and impacts of the current system on these populations, and stressed that they needed to be carefully considered within any reforms.

It was also felt that the consultation document largely overlooked the needs and possible impacts of changes on such vulnerable groups, and that, despite the inclusion of the summary consultation paper and focus groups, it was not well tailored to be accessible to such individuals.

Lack of Evidence Underpinning Case for Change

Despite the papers by the Law Society of Scotland,[7] the Scottish Legal Complaints Commission,[8] and the Competition and Markets Authority's research report,[9] a number of respondents, typically those opposed to the Roberton Model, argued that there was a lack of evidence presented to support the need for the proposed regulatory reform. This was a criticism levied at the Roberton Report, and which was considered to have been replicated in the consultation document.

It was argued that there was no proper evaluation of the current system, as well as no evaluation of the systems adopted in other jurisdictions (particularly in England and Wales) or sufficient justification of why such alternatives would be suitable in the Scottish context. Further, it was felt there had been a lack of public input to the Roberton Report, a lack of Scottish based evidence, and that what had been presented was based on the experiences of small samples which were not representative of the total population of Scottish consumers.

Difficulties Responding to the Consultation Questions

Although a summary consultation paper was included, several respondents noted difficulty with some of the consultation questions contained in the written consultation document. This included a lack of adequate discussion or framing of issues/questions, a lack of definitions for certain terms/elements/concepts, confusion around what was meant by certain terms or suggestions, confusion over how questions and response options should be interpreted, etc. A few also felt that some of the questions and response options contained bias or were leading, in that they assumed a preference for the model under discussion, with closed questions in particular failing to offer any neutral response options or any way to identify overall disagreement with the wider concept being discussed.

The length of the consultation, and technical nature of some of the sections, may also have presented a barrier to some taking part. This was the case for both lay persons who may have found the consultation too complex, and for professionals who may have struggled to dedicate the time required for completion:

"I am not an inexperienced individual having had a long career with multiple senior roles - yet I found the process extraordinarily difficult and time-consuming. I cannot see how many members of the public could successfully navigate this process." (Individual)

A few felt there was a lack of clarity around how some of the models, or aspects of the regulatory framework, would operate. Many also refused to believe that the costs to establish and maintain all three options would be cost neutral. It was argued that a costing exercise needed to be undertaken and shared to allow fully informed feedback and decision making.

Several also felt that the consultation did not tackle some of the key issues or overlooked issues which both consumers and professionals face in the current system:

"Lots of vague and pointless questions which again ignore the issues consumers have with the current system. The SLCC needs completely scrapped and the Law Society should have no say in the running of the new body, which needs to have consumers who have been through the complaints process on the board." (Individual)



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