Part 2(A) Regulatory Models and Landscape
The consultation paper set out three options for possible regulatory models, as well as details on how these would operate in practice (an extract summarising these is included at Appendix A). This included:
- Option 1: the Roberton Model, as recommended by the Roberton Report. This would introduce a single independent regulator that would be responsible for entry, standards, monitoring, complaints and redress in respect of the legal profession.
- Option 2: a Market Regulator Model. This would introduce an independent market regulator, who would oversee the work of the current 'authorised regulators', each having distinct roles and purpose.
- Option 3: an Enhanced Accountability and Transparency Model. In this model, the current regulators would continue to regulate their respective professions. There would be a focus on enhanced accountability and transparency, and a simplification of the current framework. The regulators would also be required to ensure that they embed a consumer voice in their organisation to provide advice, represent the views of consumers and organise research.
Respondents were invited to identify their preferred option, as well as to consider which aspects of regulation should be incorporated within any future system, the extent to which professional bodies should have a statutory footing, and methods for representing consumers.
Q4. The primary recommendation of the Roberton report was that "There should be a single regulator for all providers of legal services in Scotland. It should be independent of both government and those it regulates. It should be responsible for the whole system of regulation including entry, standards and monitoring, complaints and redress. Regulation should cover individuals, entities and activities and the single regulator should be a body accountable to the Scottish Parliament and subject to scrutiny by Audit Scotland." To what extent do you agree or disagree with this recommendation?
Of those who provided a rating to indicate their level of agreement with the primary recommendation in the Roberton report, responses were fairly evenly split between those who agreed (49%) and those who disagreed (51%). However, those who were opposed to the recommendation were slightly more likely to strongly disagree, compared to those who strongly agreed.
Reasons for Agreement
Those who agreed generally felt that an independent regulator would be welcome (and needed), bringing the sector up to date, into line with other professions/sectors and jurisdictions, providing clarity and allowing more focus on consumer rights/needs/experiences, and facilitating consistent regulation of the entire sector:
"One of the key lessons from reforms in England and Wales and in the United States and other jurisdictions is that multiple agencies involved in the regulation of legal services creates a barrier to effective reform. Anything other than a single legal regulator, acting under a clear public interest mandate from the legislature, is a concession towards professional interests over those of the public." (Organisation, Legal Services Provider)
Several responding from the consumer perspective perceived the current model as self-regulation, allowing the legal profession to be "marking their own homework" and lacking independence. They felt it served/protected the interests of service providers rather than consumers, that the complaints process in particular took too long, was too complex, and that there was a lack of guidance and support for complainants:
"The focus is always on process rather than outcome and appears to me to be run by lawyers for lawyers. There appears to be no understanding of consumers. It's my belief that the culture (which is set from the top) is self-serving." (Individual)
It was also suggested that having a system with multiple regulatory bodies made it confusing and difficult for complainants to know who to go to and what the process was, as well as being confusing for those looking to enter/support the sector:
"…the complexity in knowing which regulator to go to is high… multiple regulators means that there is significant work in understand[ing] which regulator regulates which law. A single place/'one-stop-shop' would enable efficiency and reduce complexity in helping those seeking advice on how to enter into the legal services market with innovative services." (Organisation, Consumer Body/Panel)
The issue of independence of the regulator from the profession was a key issue for both those responding from a consumer perspective, and for some of those within the legal profession. It was felt there were conflicts of interest for the Law Society of Scotland, in particular, between representing solicitors and regulating the sector/ dealing with complaints and problems:
"It has been observed that the Relevant Professional Bodies' current dual role as both regulator and professional representative of their professions makes their independence difficult in relation to regulation." (Consumer Organisation, Third Sector)
"It is our view that our regulator should be independent of those they regulate. It is our view that currently, The Law Society of Scotland being both our representative body and our police breeds uncertainly and lack of trust within the membership. This dual role, that can only be described as conflicting, may well prevent members from seeking help, support or guidance, thus having a detrimental effect on either the firm or the individual in question. It is time for the regulation of solicitors to be updated." (Organisation, Legal Services Provider)
"The Law Society of Scotland struggles hugely with its two part role as a representative body and a regulator… It often is conflicted whereby it should represent solicitors as well as regulate them. A new system is highly needed to resolve this inherent conflict. A new body for representing solicitors separate from the regulator would make the matters clearer, more accountable and less risky." (Individual)
Several caveats or concerns were, however, offered in relation to the implementation of a single regulator model, including:
- Several felt that independence from Parliament, the government and political bias was important/needed (this need for political independence was also one of the main reasons given for disagreeing with the recommendation, as discussed below);
- Several respondents wanted an entirely newly staffed regulator rather than staff transferring from the Scottish Legal Complaints Commission (SLCC) and the Law Society of Scotland;
- A few were concerned about the costs that would be involved (again an issue explored in more detail by those who opposed the recommendation); and
- One respondent felt that any new regulator could face similar constraints as the SLCC (although they did not elaborate on the nature of those constraints).
Reasons for Disagreement
Among those who disagreed with the primary recommendation, respondents generally felt that:
- The Roberton Review did not provide evidence of the "mischief" (i.e. problems, shortcomings or issues) which the proposals sought to address or to support the need for such fundamental reform;
- Legal services were already heavily regulated and the current system of regulation worked well and did not need to be amended;
- The current regulatory bodies had good knowledge and understanding of how each branch of the legal profession worked and the challenges they faced, they operated in the public interest, and they did a good job; and/or
- Safeguards were already in place to provide reassurances over impartiality (e.g. having non-solicitors as part of the Law Society's Regulatory Committee and being under a statutory duty to work in the public interest).
Even where respondents agreed that reform was required, they felt that this would be best achieved within the current framework and by reforming/updating the current systems and powers of the existing regulators, rather than "throwing the baby out with the bathwater".
One of the main arguments against the provision of a single regulator was the perception that this would not be independent of the Scottish Government. It was felt to be of paramount importance that the legal profession and justice remained, and were seen to remain, independent of the Government, ministers and politics. Respondents argued that the Scottish Government/Parliament should have no influence upon any regulatory bodies or organisations and that they should not be involved in the appointment of its members or representatives. It was also argued that the legal profession needed to be able to challenge government where necessary, which necessitated independence of the two systems. However, it was felt that this was not the model being outlined in the consultation paper, despite the Roberton report's primary recommendation that "it should be independent of both government and those it regulates":
"The recommendation is for a separate regulator independent of Government but then goes on to say that the regulator would be accountable to Parliament and subject to scrutiny by national Audit. The regulator would be effectively an agent of the State, responsible to neither the public nor the professions, but to political will." (Individual)
"I believe this is a serious and potentially dangerous step away from the principle of the independence of the legal profession. It risks government appointees making the arrangements for who can and cannot become a lawyer, determining the requirements which are set down on the legal profession and, perhaps most seriously, controlling the process to remove a lawyer's right to practice." (Individual)
"It is of vital importance that the independence of all branches of the legal profession is maintained, with their accountability to the courts as well as their individual regulatory body ensuring the highest professional standards of entry and conduct. Changes risk undermining the rule of law, a bedrock of any modern democracy, providing stability to the citizen and the ability to challenge governments of the day. Lawyers need to challenge government and policy makers and should be entirely independent of them." (Individual)
Indeed, some respondents, including the Law Society of Scotland and those who supported their view, felt that such a change would risk undermining the rule of law, thus damaging Scotland's international reputation and credibility:
"It risks introducing a radical regulatory structure which is costly, undermines the rule of law and damages the international reputation of the Scottish legal sector to address a problem which is non-existent." (Organisation, Professional Body, Law Society of Scotland)
Another common argument against the creation of a single regulator was the perception that service operation costs would rise. A few felt that rising costs could not be easily borne by the profession, particularly following COVID-19 and the national insurance increases and money laundering levies, and felt that any additional financial pressures could lead to some legal firms closing and make the local and high-street based services less attractive as a business proposition, thus negatively impacting consumer choice and access to justice:
"We are convinced it will not be cost neutral (we believe it will be considerably more expensive) and that the increased costs will fall to be met by the legal profession and, in the main, passed on to clients. There is no evidence in the consultation paper on costs and to leave a proper assessment to later in the process is not, in our view, acceptable." (Organisation, Legal Services Provider)
Several were also resistant to, or uncertain around the success which a one-size-fits-all regulatory system would have. They noted that the different strands of the legal profession and different roles performed would be difficult to accommodate within a single regulator, with a few concerned that the regulator may not have the required skills and experience of all aspects of the sector to provide comprehensive and consistent coverage:
"Solicitors, advocates and commercial attorneys each perform a different and equally important function within the legal services sector and, as such, each is bound by different rules and requirements embedded through provisions stretching across many statutes. Collating all branches of the legal profession under the umbrella of one single super-regulator would be expensive, challenging to manage in a proportionate way and require significant and experienced resource." (Organisation, Professional Body, Law Society of Scotland)
In relation to the regulation currently provided by the Faculty of Advocates, it was felt that the current system worked well, met all the desired criteria for regulation, and respondents argued that the status quo should be retained for most elements. However, it was felt that reforms to complaints handling involving advocates via the SLCC may be needed, with suggestions that all complaints should be dealt with directly by the Faculty.
Question 5 and Question 6
Q5. Of the three regulatory models described, which one would you prefer to see implemented?
Q6. Of the three regulatory models described, please rank them in the order you would most like to see implemented?
Over half (55%, n=66) of the respondents who provided a quantitative response at Q5 indicated that Option 3 was their preferred model. Similarly, when asked to rank the three options at Q6, Option 3 was selected most often as the first choice (60%, n=61), Option 2 most often as the second choice (82%, n=77), and Option 1 most often as the third choice (51%, n=51) - although it should be noted that Option 1 was also chosen as the first choice by a large proportion (42%, n=42).
Of those who chose Option 1 as their first choice, most (69%, n=29) selected Option 2 as their second choice and Option 3 as their third choice. Conversely, most of those who selected Option 3 as their first choice, selected Option 2 as their second and Option 1 as their third (77%, n=47).
It should be noted that 22 respondents did not rank all three options at Q6, instead most only indicated their first choice. One respondent rated two options, possibly indicating that the third should not be adopted. These ratings are included in the chart above, resulting in the differing base rates for each option.
Often, those identified in third position (both Options 1 and 3) were said to be unworthy of further consideration and respondents were strongly against such a model being implemented. Further, several respondents who had ranked all three options indicated that they only supported their first choice and felt the other two should not be implemented. One suggested that a different rating scale might have been helpful at this question in order to gauge the level of support for each option, rather than ranking, as the strength of support for each could not be conveyed within the given response options.
A total of 109 respondents provided a qualitative response at Q5 to discuss the reasons for supporting one or other option. At Q6, 87 respondents provided a qualitative response to support their answers, however, a large proportion simply referred back to their earlier answers given at Q4 and Q5 rather than providing any new information. Indeed, the reasons given at Q5 and Q6 were largely consistent, both supporting and critiquing the three options, and covering the same issues. Therefore, all responses across Q5 and Q6 have been collated below.
Support for Option 1
The reasons respondents gave for supporting Option 1 were largely in line with the comments provided above, namely that it would bring:
- Independence from the profession;
- Separation of the roles of regulation and representation of the profession to avoid conflicts of interest;
- Simplicity and clarity by being responsible for the whole system/sector;
- Public trust in the system;
- Greater transparency and accountability;
- Focus on consumer rights, particularly if the consumer voice is embedded in the regulator as planned; and
- More efficiency, providing consistency across the entire sector, and being proportionate for the size of the sector in Scotland:
"Option 1 is the only option that fully meets the requirement of establishing the independence of the regulatory function from the profession that it will be set up to regulate. This will allow the regulator to act in the public interest and be proactive in addressing emerging concerns and embracing new opportunities free from any conflicts of interest. Clearly establishing the independence of the body will also contribute to consumer trust and confidence in the system." (Organisation, Consumer Body/Panel)
Several individuals were also keen to see the Law Society of Scotland and the SLCC removed from the regulatory and complaints landscape.
A few stressed the need for the reforms to be more radical in order to support real and meaningful changes, and argued that similar independent legal sector regulators had been introduced in a number of other democratic jurisdictions:
"The presence of lay members on a professional body regulation committee rarely manages to create the impetus to genuine reform. Only where legislation has created a new, independent legal sector regulator, as in Australia, Ireland, Singapore, South Africa or California, has there been an introduction of the radical thinking that the legal sector needs in order to address its systemic problems." (Organisation, 'Other' sector representing the profession)
Limitations or Opposition to Option 1
Across both Q5 and Q6, respondents also outlined their reasons for opposing Option 1. Again, the main criticism was that this model failed to protect the independence of the legal profession from Government/Parliament, and that it did not provide adherence to the rule of law.
Other reasons given, again in line with responses to Q4, included:
- The lack of evidence to support the need for such radical reforms;
- The perception that this model would have cost implications which would ultimately impact the consumer;
- That this model risked losing the goodwill and expertise of skilled and experienced volunteers who work on the Law Society of Scotland Regulatory Committees and support the Law Society of Scotland's work;
- That it risked damaging the legal sector's competitiveness;
- That no other jurisdiction in the world had implemented this regulatory model; and
- That it represented a disproportionate solution to address the issues identified by the Roberton Report, and represented a disproportionate system for the Scottish market.
Support for Option 2
Although only a few respondents (7%, n=8) identified Option 2 as their preferred model, the majority of respondents (82%, n=77) ranked this as their middle preference. A few also stated that they felt this option merited further consideration.
Generally, the aspects of Option 2 which respondents supported included that it may:
- Provide a satisfactory degree of separation between the regulatory bodies/ legal profession and the Scottish Government/Parliament;
- Bring a consumer focus and the consumer voice to the regulatory landscape and help to drive consumer confidence;
- Offer choice and accountability;
- Offer a single regulator who could provide an initial point of contact, particularly (but not exclusively) for complaints; and
- Be similar to the model in England and Wales, or Ireland, which were considered to work reasonably well (although others disagreed that the English and Welsh system worked well, as discussed below).
A few also felt that, while the current regulators were the most appropriate to regulate their respective professions, the oversight/market regulator would provide public confidence in the work of these regulatory bodies, and that their processes, actions and decisions were fair and just.
Limitations or Opposition to Option 2
The limitations and reasons for opposition to Option 2 were similar to those outlined about Option 1 above.
Again, the key issues were that the market-regulator would be answerable to and/or influenced by the Scottish Government/Parliament and so would not provide adherence to the rule of law, while the individual regulatory bodies would not be independent from the profession. It was also commonly argued that Option 2 introduced additional bureaucratic layers to the system making it more complex and less transparent and efficient. It was felt that this would result in additional costs.
Other issues with Option 2 included:
- That it was a disproportionate change to address the perceived issues with the current system, and a disproportionate model compared to the size of the Scottish market;
- That it was similar to the system used in England and Wales, which was considered to have created numerous issues that would most likely be replicated in Scotland (in direct opposition to those who thought this system worked well):
"There is no evidence to suggest that there is any current issue within the legal services market in Scotland. England is the only jurisdiction where a Market Regulator Model has been introduced following legislation in 2007, with little evidence to date to suggest that it has improved the position of consumers of legal services in that jurisdiction." (Individual)
- That it did not separate regulation from representation;
- The need for new entrants to set up their own regulator could be prohibitive;
- That it was unlikely to go far enough to achieve the stated regulatory aims;
- That it was not well set out in the consultation document to make reliable assessments of this model, for example:
- It contained inconsistencies, overlap of responsibilities, and a lack of detail;
- There was a lack of evidence regarding the benefits this model would bring;
- It lacked clarity over how disputes and conflicts between regulatory committees and the professional bodies would be handled/resolved; and
- It lacked clarity over how the consumer voice would be incorporated.
Several other respondents noted that they had picked this as the middle option as they saw it as slightly favourable to their least preferred option. However, they still cautioned against the model, indicating it was unlikely to go far enough to address their concerns.
Support for Option 3
The key reasons why respondents supported Option 3 included perceptions that it would:
- Maintain independence from the Scottish Government/Parliament, remain answerable to the Lord President and Court of Session, and maintain the rule of law:
"This ensures that the senior judges are responsible for the regulation and accountability of the different aspects of the legal system in Scotland. They are independent, knowledgeable, and have vast experience of assessing what is right and proper." (Individual)
- Be cheaper/more cost effective than the alternative options, and any new system would be too costly;
- Allow improvement in the current regulatory system quickly, it would be the least disruptive and most deliverable option;
- There was nothing fundamentally wrong with the current regulatory structure, it was processes that needed to be updated, and this would be best achieved by the current bodies with their knowledge and expertise;
- Embed a consumer voice;
- Provide powers for regulators to apply to regulate legal services providers in other jurisdictions;
- Introduce powers to regulate at entity level, thus providing greater protection to consumers;
- Provide greater flexibility to introduce the powers for a more proactive regulatory regime; and
- Improve transparency and accountability around regulators.
However, the requirement for independent committees to have their remit set by, and to be accountable to, the Scottish Parliament, was unwelcome by respondents. Again, they argued that independence and separation was required, and that the Lord President and the Court of Session should remain the ultimate head of the system.
Some respondents did, however, agree that greater transparency was required in the current system and that the complaints process in particular needed to be addressed and reformed, although they did not feel that changes to the framework were required to achieve this. It was argued that new processes were needed, not new structures. Indeed, the Law Society of Scotland set out an Option 3+ scenario (detailed at Appendix A), which they and others would prefer. This reflected Option 3 and incorporated their proposed complaints model. It was argued that this would address key failings/issues in the current system, while retaining what works well:
"We believe that the Option 3 model, with the adoption of our proposed complaints model, is the only credible option which strikes the correct balance between working in the consumers' best interests, promoting a strong legal sector, and providing a proportionate and appropriate complaints redress route… Option 3 allows for evolution and iterative improvement of the current regulatory framework. It would also allow for a more agile, responsive, and transparent regulatory regime, which would strengthen the focus on consumer protections and support the legal profession." (Organisation, Professional Body, Law Society of Scotland)
Limitations or Opposition to Option 3
Again, respondents also set out the perceived limitations or reasons for opposition to Option 3, the main ones being:
- It would not provide independence from the profession, and would continue to put the interests of service providers above consumers;
- It would continue to perpetuate tensions and conflicts of interest for organisations between their role as regulator and their role as representatives of the profession;
- It was too similar to the current system so would not deliver the necessary changes or required levels of improvement;
- It could be prohibitive to new entrants to the market as they would have to set up their own regulator; and
- It was perceived that the disciplinary tribunal, complaints system and Court of Session would fall under the direct scrutiny of Parliament, which was again considered unsatisfactory for an independent profession.
Finally, some respondents preferred the status quo to remain, and argued for no change. This was particularly the case for those discussing the Faculty of Advocates' role, although others spoke of this in more general terms across the profession. They highlighted that the legal profession was well regulated and well respected, and felt that there was no problem to be solved, therefore no change was required. However, as this was not offered as an option in the consultation paper, several of these respondents selected Option 3 as their preferred option, as the 'least worst' option from those presented (but stressed they would prefer no change, or argued that change would not bring about any real benefits), while several chose not to select any of the options on offer.
Focus Group Responses
Focus group respondents were generally more supportive of the primary recommendation in the Roberton Report and of Option 1 as the preferred model for reform.
From a consumer perspective, and among some within the profession, it was felt that an independent regulator would be the preferred option, in order to simplify the system (creating a "one-stop-shop") and to provide reassurances over independence. However, many of the comments were related to complaints and complaint handling rather than to wider regulatory issues.
A few, largely from within the legal profession, however, had issues with the Roberton Report/Model. As above, one was concerned about independence and the appointment of a lay chair to an independent regulator. They felt that lay members were already heavily involved and that, while changes were needed to the complaints process, this did not warrant such significant changes, or additional bodies being introduced to the structure. Similarly, another felt that the current system worked well, but agreed that a new complaints system was needed. It was, again, suggested that the size of the Scottish legal profession did not warrant the cost of creating and maintaining an overarching regulator.
One respondent preferred Option 2, the Market Regulator approach, as it would retain and enhance the current system by providing greater oversight, however, another felt this simply added layers of bureaucracy.
One respondent preferred to maintain the status quo while amending the rules and standards applicable to the legal profession. They argued that without addressing these, it made no difference who the regulator was.
Question 7 and Question 8
Q7. Please rank in importance the aspects of regulation you would most like to see handled by professional regulatory bodies, through independent regulatory committees?
Q8. Of the three models described above, please rank in importance the aspects of regulation you would most like to see handled by a body independent of, and external to the professional regulatory bodies, and of government?
Comments provided at these questions were again consistent, with many responses to Q8 simply referencing their answer at Q7, therefore the two questions were considered together for reporting purposes.
Of those who ranked the three options at Q7, respondents were equally split in terms of their first choice, with around a third (31%-37%) selecting each option in the first position/as the most important issue. Just over half (57%, n=47) placed 'oversight of standards and conduct' in the second position, while 'education and entry' and 'complaints and redress' were largely placed in third position (46%, n=38 and 42%, n=35 respectively).
Compared to Q7, greater consistency was provided among how respondents ranked the three options at Q8. Of those who answered the question, 60% (n=47) placed 'complaints and redress' in first position/as most important, 57% (n=44) placed 'oversight of standards and conduct' in second position, and 57% (n=44) placed 'education and entry' in third position.
Caution is needed over the results presented at both Q7 and Q8, however, as the qualitative comments appeared to show various interpretations of the meaning of the questions and what respondents intended by their responses. For example, several respondents appeared to rank the options as simply those they felt were the most important to regulation/the area most in need of reform, irrespective of who would handle this. One respondent also highlighted uncertainty regarding what each of the rankings would represent, particularly for options two and three, with different interpretations of this being possible (regarding who would be responsible for each element) - this was indeed borne out in the responses. For example, some respondents outlined whether a professional body, an independent committee of a professional body, or a new independent body should be responsible for each element.
A significant number of respondents also noted difficulty in responding to these questions. Some noted that they would prefer not to implement the regulatory model in each question, but could not illustrate that within the response options provided. Others felt that all elements were equally important within the regulatory framework. This was noted by both those who provided rankings, and many of those who did not rank the options but provided qualitative comments only:
"All of these elements carry equal importance in the overall regulatory regime and therefore it would not be appropriate to list them in preference order. As with the current model, we believe that any regulatory committee should have responsibility for all aspects of regulation, and none should be removed from the functions of the regulator." (Organisation, Professional Body, Law Society of Scotland)
As outlined above, many respondents provided qualitative comments which outlined preferences between independent committees of professional bodies and a new independent regulatory body taking responsibility of each area. For example, it was often argued across both questions that the current professional bodies were best placed/equipped to lead on 'education and entry', while a body independent of the profession was needed to handle 'complaints and redress' - with some arguing for a fully independent body and others for independent regulatory committees:
"In order to maintain confidence with the public, complaints and redress should be completely impartial. Education and entry, subject to involvement of an independent body to ensure that there is actual evidence to support the standards being applied, and that no unnecessary barriers are being put in place that would distort competition, should be a matter that the professional regulatory body can adequately address." (Organisation, Professional Body for the Legal Profession)
There was less agreement over who should be responsible for regulating 'standards and conduct'. Some felt this should be retained by the professional bodies as there was currently no issue in this respect, to maintain independence of the legal profession from Government, and because 'education and entry' and 'standards and conduct' were closely linked and the professional bodies were best placed to oversee both elements. Others preferred this to be handled by an independent body due to conflict of interest issues for the professional bodies in trying to both promote and police their members, and because they felt that 'standards and conduct' was closely linked to 'complaints and redress', and therefore both required an independent body to oversee these:
"Key for confidence in the system will be independence of oversight of standards and conduct with same applying to consequent complaints and redress system." (Individual)
Several also indicated that 'education and entry' and 'standards and conduct' should be managed by the existing professional bodies and not a new/independent regulatory body. Again, this was considered important to maintain the independence of the profession from political influence:
"Education and entry to the profession, and standard and conduct of the profession should be a matter for an independent profession only." (Individual)
Q9. Under the Roberton Model, to what extent do you agree or disagree that the professional bodies should have a statutory footing?
Of those who answered this question, around two thirds (67%, n=55) agreed that the professional bodies should have a statutory footing, while one third (33%, n=27) disagreed. Only one organisation disagreed with this proposal, all others either agreed or did not indicate their level of agreement/disagreement. As such, almost all of those who disagreed were individuals (n=26). A wide range of reasons were provided as to why professional bodies should have a statutory footing if the Roberton Model were to be implemented. This included, to provide and maintain:
- Legitimacy, authority, and credibility;
- Clarity and transparency;
- Sufficient monitoring and effective governance;
- Public confidence;
- Checks and balances to the risk of any Government/Parliamentary/political interference; and
- Sector specific input to the regulation:
"Regulators should naturally have some distance with the professionals that they regulate. However, a relationship should definitely be formed between the two. It should only be fair that the professionals have some say in their regulation." (Organisation, Consumer Body/Panel)
The issue of membership and member engagement was also discussed by several respondents (including the Law Society of Scotland and those who supported their response). It was noted that without regulatory functions or a statutory role, membership would become voluntary, resulting in a loss of income and impacting on the delivery of remaining functions. Indeed, a few noted that some in the profession may opt to become members of alternative bodies:
"It would no longer be necessary for representative bodies to have this [a statutory footing] and you might find for example solicitors looking to other representative bodies such as the Law Agents Society or the WS [Writers to the Signet] Society or local faculties to protect their interests rather than the Law Society of Scotland." (Organisation, Legal Services Provider)
A few argued that those organisations/bodies which currently have a statutory footing should continue to do so, including professional bodies and the Lord President. Others suggested that any new regulatory framework would require a statutory footing and so both the new regulatory body and the role for other organisations would need to be set out clearly to avoid misinterpretation.
The Law Society of Scotland, supported by several other respondents, suggested that both primary and subordinate legislation could be used to provide flexibility in relation to the professional bodies' functions:
"Although we agree that the relevant organisations should continue to have a statutory footing set out within primary legislation, the functions of those bodies should be set out within subordinate legislation, providing flexibility to amend both pro and reactively when necessary." (Organisation, Professional Body, Law Society of Scotland)
Those who disagreed with providing a statutory footing for professional bodies commonly argued:
- There would be no need for this and/or that there was a lack of evidence regarding the basis for this;
- That too much legislation could make it difficult for the profession to react quickly or with agility to market factors (although as noted above, the Law Society of Scotland suggested that subordinate legislation could be used to provide the required flexibility); and
- That by becoming statutory bodies they may be liable to interference from government:
"I believe the work of professional bodies does not need to be further underpinned by a statutory footing. Bodies, particularly the Faculty of Advocates, have been able to carry out their roles with a high degree of public confidence - I do not believe this needs to change." (Individual)
Q10. Which of the following methods do you think the final regulatory model should utilise to embed a consumer voice?
Of those who chose an option from the list presented, nearly half (49%, n=42) agreed that a combination of methods would be best utilised to embed a consumer voice in the final regulatory model. A quarter (25%, n=21) preferred a requirement for consumer expertise within regulatory committees, 15% (n=13) felt this would best be achieved through a consumer panel, and 11% (n=9) indicated that input should be sought from Consumer Scotland.
A Combined Approach
Of those who supported a combined approach, 38 provided comments to support their response. This included the Law Society of Scotland, with several others supporting their views without having provided a response at the closed question. A few others who also did not provide a response to the closed element of this question also expressed general support for a combined approach in their qualitative comments - up to eight additional respondents appeared to prefer this option.
A range of different models were outlined, with several advocating for input from both Consumer Scotland and a consumer panel, and others seeking a blended approach of all the options presented. Most also highlighted the need for a range of different consumer voices (both from consumer organisations and individuals) to be included in the process. They felt this would ensure the most reliable and balanced representation of consumer input. Many believed that the inclusion of consumers who had experienced the 'system' would be of significant benefit, not only to stakeholders, but also to the legal system as a whole, as well as the wider perception of it. A few also commented on the need for consumer input with the power to directly challenge regulators:
"Input is required from as many stakeholders as possible and particularly from consumers and end users. It is important that those who may need have limited or poor access to legal services are included." (Individual)
"A combination because it is [not] often that a single technique can provide a strong consumer voice. For instance, a consumer panel might not be enough on its own. And requirements themselves could leave differing levels of the consumer research techniques and input. Having a combination of input from a variety [of] sources (including research and consultations from Consumer Scotland and other similar bodies) will provide the required strong consumer voice." (Organisation, Consumer Body/Panel)
A few consumer based organisations also argued for the need for regular, widespread consultation and engagement activities to be undertaken:
"We would expect to see wide consultation and engagement with the general public and with consumer groups, including those representing vulnerable consumers, on a regular and ongoing basis." (Organisation, Consumer Body/Panel)
Consumer Expertise Within Regulatory Committees
Of those who favoured a requirement for consumer expertise within regulatory committees, only nine respondents provided further qualitative comments.
A few felt this was the most suitable way to achieve a meaningful consumer voice which could not be overlooked, while also calling for such representation to include a diverse set of views. A few also felt this was closest to the current system, which could be built upon to improve in this respect, and would therefore represent the least disruption. One respondent was also wary of giving a single organisation a voice over others:
"This provides a voice within an existing framework. I do not agree that a single consumer organisation should have any preferred status in the new process." (Individual)
A few focus group attendees, who were asked about consumer representation, were conflicted over the use of consumers within regulatory committees. While they saw merit in this, and felt it was a situation to strive towards, they noted that it might be difficult and intimidating for lay persons and members of the public to join a system designed around the legal profession and to compete in discussions/ disagreements with legally trained professionals. It was argued that more support and resources were needed for lay people on such committees, and that 'professional' lay people might be more confident to actively participate.
A Consumer Panel
Of those who felt that establishing an independent consumer panel would be the best option, only five respondents provided supporting comments. They felt that this would guarantee that representative consumer voices were heard:
"Consumers must be placed at the heart of any new regulatory model." (Individual)
A consumer panel model was also supported by a few focus group respondents. It was suggested that this needed to include a broad representation from different consumer organisations as well as a wide range of consumers themselves - including vulnerable and hard to reach groups who may require more support or innovative methods to allow them to participate. It was also suggested that implementing this approach initially may allow lay persons to become familiar and comfortable with the regulatory system, thus supporting them to feel more confident to perhaps join regulatory committees at a later stage.
Input from Consumer Scotland
Of those who supported the option to seek input from Consumer Scotland, just four respondents provided a qualitative comment. Two who had not selected a response at the closed question also outlined support for this option, including the Faculty of Advocates.
It was felt that this would be the most efficient, straightforward and practical approach. It was also felt to be appropriate since it would bring a consumer perspective and facilitate broader consumer consultations. Some felt that this would be preferable to the establishment of an independent Consumer Panel which one individual respondent labelled as potentially 'tokenistic'.
It should be noted that a few respondents also indicated that they did not agree with any of the options proposed. Generally, reasons were not provided for this view, however, one respondent noted that a solicitor's primary responsibility was to the court, and they were uncomfortable about giving too much influence to consumers and those unqualified in the sector. Similarly, another (who was supportive of having consumer representation within regulatory committees) argued that not all consumers should be treated the same within the regulation. They felt that a distinction was required between large corporate clients who interact regularly with legal services, or in-house solicitors instructing other private solicitors for example, and members of the general public who would have very limited experience of legal services.
Q11. To what extent do you agree or disagree that Consumer Scotland should be give the power to make a Super-Complaint in respect of the regulation of legal services in Scotland?
Of those who provided a rating, over half (56%, n=48) agreed that Consumer Scotland should be given power to make a Super-Complaint in respect of the regulation of legal services in Scotland, while 44% (n=38) disagreed.
A few individuals indicated that they did not know what a 'Super-Complaint' was, while a few others thought that Consumer Scotland were already able to raise such complaints.
Those who agreed suggested this would bring a needed change to the complaints system, providing greater consumer protection:
"We support providing Consumer Scotland with the power to make a super complaint in respect of the regulation of legal services in Scotland as this will provide additional accountability in relation to consumer issues." (Organisation, Consumer Body/Panel)
The main caveat from those who supported the proposal, and the primary reason for disagreeing, was around independence and representation within Consumer Scotland. It was again felt this might undermine the independence of the legal profession, with respondents raising concerns about potential bias:
"Could be hijacked for political purposes. Consumer Scotland is state funded and so state controlled." (Individual)
"But the power becomes a pistol to the head. It can threaten super action, to dynamite the regulator, whenever it wants. Could this be open to abuse?... Who then controls the controller and the super complainer?" (Individual)
The Law Society of Scotland and a number of others called for clarity around the issue that this proposal was trying to address, questioning both its proposed purpose and scope:
"…it is not clear as to the extent of the proposed power and what mischief it is intended to address. We would welcome clarification of this." (Organisation, Professional Body, Law Society of Scotland)
Respondents from across the spectrum of responses (i.e. who agreed, disagreed and who did not provide a closed response) felt that not enough information or detail had been provided in the consultation around how this would work, who the complaint would be made to, the circumstances for such a complaint, etc. It was felt that more information was needed in this area.
Q12. To what extent do you agree or disagree that a baseline survey of legal services consumers in Scotland should be undertaken?
Just under two thirds (62%, n=53) of those who identified their level of agreement, agreed that a baseline survey of legal services consumers in Scotland should be undertaken, compared to 37% (n=32) who disagreed.
The most common qualitative response to this question, supported by the Law Society and others, was a call for clarity as to the scope and objective of such a survey. Many respondents felt that a survey would be beneficial to establish benchmarks against which change could be measured. However, there was a general feeling that an all-encompassing, fair and reliable survey would be difficult, time consuming and expensive to conduct.
Of those who agreed that a baseline survey should be undertaken, a number believed that consumers were already content with existing services, highlighting that previous/existing surveys showed high levels of satisfaction. It was also felt that a baseline survey would help to identify if and where change was needed:
"The Law Society already does this and the results are generally very positive." (Individual)
"With surveys before, the vast majority of clients have been shown to be satisfied with their own lawyer. Changes should not be introduced as a consequence of the disenchantment of a small vocal minority. I think such a survey might be helpful to identify if there is truly a mood for change." (Individual)
Among those who disagreed, it was argued that the cost of such a large survey may be prohibitive, and that the results could be questioned for the following reasons:
- They would become outdated quickly given the nature of the sector;
- Perceptions that surveys are often only completed by those wishing to air their grievances;
- Key consumer groups would be unlikely to participate, e.g. hard to reach voices, accused in criminal proceedings, etc.;
- Consumers would not know/understand all the legal aspects or court rules, etc. to be able to comment in an informed manner; and
- It would be difficult to ensure the results did not conflate the outcome of an individual's case with the service provided:
"…would be very expensive and unless rigidly controlled, would probably provide little useful information. Legal services are frequently provided in highly charged contentious circumstances, in which one party is often disappointed by the outcome and obtaining objective useful data would be often very difficult." (Individual)
"It's always useful to have a baseline to measure outcomes against, but I'd be concerned as to how a survey of this kind would avoid consumers conflating dissatisfaction with the outcome of a legal process." (Individual)
It was argued that if a survey were to be conducted then significant care would need to be taken to ensure unbiased sampling of all demographics and to ensure a robust sample size was achieved to provide meaningful results.
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