access to justice rule of law innovation ambition public Fit for the interest Future Report of the Independent Review of Legal Services consumer Regulation in Scotland focus Esther A Roberton b Fit for the Future Contents Author’s Preface 2 Chapter 1 3 Executive summary and recommendations Chapter 2 10 Introduction and approach to the review Chapter 3 12 Landscape of the regulation of legal services in Scotland Chapter 4 19 Is there a case for strategic change? Chapter 5 30 Vision for the future of regulation of Scottish legal services Chapter 6 32 New regulatory model / the proposed regulator Chapter 7 36 Entry, standards, monitoring, complaints and redress for individuals and entities Chapter 8 45 Implications for the organisations in the existing regulatory framework Chapter 9 46 Cost of new regulatory arrangements Chapter 10 48 Economic contribution of legal services Chapter 11 50 Overview of recommendations Annex 1 53 Panel members Annex 2 55 Engagement during the review Bibliography 56 Fit for the Future 1 Author’s Preface In April 2017 I was invited by Annabelle Ewing MSP, the then Scottish Government Minister for Community Safety and Legal Affairs, to conduct an independent Review of the regulation of legal services in Scotland. This was a result of a commitment by the Scottish Government in response to a case for change made by the Law Society of Scotland and others. The stated purpose of the Review was to make The recommendations contained in the report are recommendations to reform and modernise the mine and I accept full responsibility for them. All existing framework to ensure a proportionate of the panel members agree with some of them approach which would support growth and but, as might be expected, some do not agree competitive provision in the legal services sector with all of them. In fact, a minority of members whilst placing consumer interests firmly at its heart. I expressed significant disagreement with the primary was required to consider: recommendation and I wholly respect that view. • the public and consumer interest I am ambitious for and optimistic about the future • the interests of the professions and providers of the legal services sector in Scotland. I believe • the interests of the Scottish economy that better regulation that focuses on outcomes for both the consumer and the sector can be a powerful I had the privilege of working with an advisory panel enabler. It can help the sector build a successful of distinguished individuals who brought a range of future and to flourish, supported by a fair and knowledge and expertise and I am hugely grateful proportionate regulatory model in which everyone for their contribution. They provided both support can have confidence and which meets the needs of and significant challenge in an atmosphere of mutual the people of Scotland in the twenty-first century. respect and good humour. I would like to thank the Minister for giving me the I was also ably supported by a Review secretariat opportunity to undertake what has been the most made up of some of the most committed and intellectually stimulating and challenging task of my enthusiastic people I have had the pleasure to work career to date. I urge the Scottish Government to with, namely Hazel Dalgård, Susan Bulloch, Jamie give my proposals careful consideration and to grasp Wilhelm and colleagues. My thanks to them for their the very timely opportunity I believe they present. patience and tolerance. Over the course of eighteen months I found that there was significant consensus around the key concerns but perhaps unsurprisingly, less consensus Esther A Roberton on the potential solutions. The key issues were October 2018 around the constraints that the current complex model of regulation imposes on the potential for growth in the sector and the unanimous view that the system for handling complaints is not fit for purpose. 2 Fit for the Future Chapter 1 EXECUTIVE SUMMARY AND Existing landscape RECOMMENDATIONS The Review looked closely at the existing regulatory landscape of legal services in Scotland, as well Background as trends and policy developments over the last two decades. By way of comparison the Review In April 2017 I was invited by Annabelle Ewing also considered reforms in England and Wales since MSP, the then Scottish Government Minister for the Sir David Clementi Review in December 2004 Community Safety and Legal Affairs to lead an (“Review of the Regulatory Framework for Legal independent and wide-ranging review of the Services in England and Wales”). It also looked at regulation of legal services in Scotland. Concerned the existing complex complaints framework and at that the current regime was dated and no longer the concerns raised over the multi-faceted, multi- fit for purpose, the stated purpose of the 18 month agency process, and the lack of proportionality in Review was to propose to Government independent terms of time taken and costs. Finally the Review recommendations to reform and modernise the also considered the impact of the existing regulatory framework for the regulation of legal services and framework on the legal services market. complaints handling. The Minister asked that in any new system of Broader context regulation recommended, including the competitive provision of legal services, two key interests be placed The Review took account of recent changes in the firmly at its heart: Scottish legal sector and had regard to current good practice and international trends and developments • the public and consumer interest; and in regulation. In the context of the Scottish • the promotion of a flourishing legal sector in Government’s up-dated 2018 National Performance Scotland. Framework and 11 National Outcomes, Justice organisations in Scotland collaborated to agree The Review looked carefully at the existing regulatory priorities to address the challenges faced in delivering framework, the complaints and redress processes civil, criminal and administrative justice services. for providers of legal services including solicitors Government has set a course on “modernising civil and advocates and on-going market issues such and criminal law and the justice system to meet as the benefits of regulating firms as well as the needs of people in Scotland in the twenty-first individual solicitors. Output, in terms of a clear set of Century”. The Review presented an opportunity recommendations, was expected to inform Ministers’ to influence the reform and modernisation of the decisions on reform of the regulatory system for legal regulation of legal services and complaints handling services which would require legislative change. which will have a bearing on realising that broad shared vision for the future. In addition to engagement with professional, representative and consumer bodies and Although at the time of writing this report, the UK- regulators of other professions, a two month EU negotiations are still on-going and the details public consultation, commissioned via a ‘Call for of the final withdrawal agreement and future Evidence’ issued in January 2018, provided input relationship unsettled, the Review is again timely to the evidence gathering stage of the Review. Full and recommendations are made with an eye to details of the remit and approach to the Review and the major changes which may come. The details the engagement process are set out in Chapter 2 of the transformational approach proposed can be and Annexes 1 and 2. Responses received on the developed in line with the UK’s new position. consultation can be viewed at the Review’s website at https://www.gov.scot/About/Review/Regulation- Legal-Services. Fit for the Future 3 Conclusions This recommendation, which forms the foundation on which all other recommendations are built, is I concluded that it was possible and timely to framed by the fundamental consumer principle that establish a new regulatory framework for legal a good regulatory system should be independent of services in Scotland which would enable and support those being regulated. a vibrant, high quality legal services sector for the future. Whilst a modern ground-breaking framework I concluded that those who use legal services, and will be challenging to set in place the time is right and those that deliver these services, will be best served the ambition achievable. in the future by independent regulation that meets internationally recognised regulation principles There is an opportunity to be grasped by leading and standards, putting the legal services sector in the way and building on the professional ethic that Scotland at the forefront of reform and innovation. I Scotland’s legal professionals display in their day recommend that: to day work, creating a system of regulation of which our legal professionals can be truly proud. The proposed new regulatory model – should be A regulatory system which will support service principles based and embed the Better Regulation improvement, business growth in the legal sector and Principles set out in the Regulatory Reform (Scotland) improve public confidence in legal professionals. This Act 2014 and deliver a risk-based regulatory regime. would also further enhance the reputation and brand It needs to deliver independent regulation within a of the legal profession and help to ensure its future. context of clear accountability for the delivery of the key principle of public interest, whilst also having a degree of There is also an opportunity to place the regulation accountability to the professions it serves. The primary of legal services in Scotland at the forefront of legislation required to introduce the new single regulator international regulatory good practice, and improve model should focus on high level principles and take an the way in which consumer interests are visibly as enabling approach. It also require the new regulator well as practically protected. The new framework that to develop a complaints handling process based on I am recommending to Ministers will: uphold the rule best practice, which is less legalistic and provides faster of law; provide access to justice; protect the public resolution for all parties.