The Scottish government’s proposed bill to reform the regulation of legal services has sparked a strong opposition from the country’s second most senior judge and the legal profession. They claim that the bill threatens the independence of the judiciary and the legal sector from the state.
Lady Dorrian expresses ‘grave concerns’ over the bill
Lady Dorrian, the Lord Justice Clerk and chair of the Scottish Civil Justice Council, has voiced her ‘grave concerns’ over the Regulation of Legal Services (Scotland) Bill in a letter to the Equalities, Human Rights and Civil Justice Committee of the Scottish Parliament. She said that the bill would give the Scottish ministers ‘very broad powers’ to intervene in the regulation of the legal profession and to review the performance of the existing regulators, such as the Law Society of Scotland and the Faculty of Advocates. She also said that the bill would allow the Scottish ministers to create new regulators and to appoint members to their boards.
Lady Dorrian argued that these powers would undermine the independence of the legal profession and the judiciary, which are essential for the rule of law and the protection of citizens’ rights. She said that the bill would create a ‘court set up by the government with a limited lifespan, and subject to examination and review by the government’, which may not comply with the European Convention on Human Rights or the Scotland Act 1998. She also said that the bill would erode the role of the Lord President, the country’s most senior judge, in supervising the regulation of the legal profession.
Legal bodies join the criticism of the bill
The Law Society of Scotland, the professional governing body for solicitors, and the Faculty of Advocates, the professional body for advocates, have also expressed their opposition to the bill in their submissions to the committee. They said that the bill would grant the Scottish ministers ‘extensive and exceptional new powers of intervention’ over the regulation of the legal profession, which they have not been able to identify in any other western democracy. They said that the bill would risk ‘seriously undermining the rule of law and the independence of Scotland’s legal sector from the state’.
The Law Society of Scotland also raised concerns about the impact of the bill on the quality and diversity of the legal services, the protection of the public interest, and the access to justice. It said that the bill would create a ‘fragmented and confusing’ regulatory landscape, with multiple regulators competing for market share and potentially lowering the standards of the legal profession. It also said that the bill would reduce the representation and participation of the legal profession in the regulatory bodies, and that the bill would not address the issues of affordability and availability of legal services for the public.
The Faculty of Advocates also highlighted the importance of the independence of the legal profession and the judiciary for the administration of justice and the safeguarding of the rights and freedoms of the people. It said that the bill would ‘dilute and diminish’ the role of the Lord President in overseeing the regulation of the legal profession, and that the bill would ‘create a risk of political interference’ in the regulation of the legal sector.
Scottish government defends the bill as a modernisation of the system
The Scottish government has introduced the bill as a response to the recommendations of the Independent Review of the Regulation of Legal Services, which was chaired by Esther Roberton and published in 2018. The review suggested that the current system of regulation was ‘outdated, inflexible, and lacking in transparency and accountability’. The review proposed a new single regulator for all legal services providers, with a statutory duty to protect and promote the public interest and the rule of law.
The Scottish government has said that the bill aims to ‘modernise and improve the regulation of legal services in Scotland, to ensure that it is fit for the 21st century and meets the needs and expectations of consumers and the public’. The Scottish government has also said that the bill would ‘enhance the accountability and transparency of the regulatory system, and support a strong and diverse legal profession’.
The Scottish government has denied that the bill would compromise the independence of the legal profession and the judiciary, and has said that it would ‘respect and uphold’ the constitutional principle of the separation of powers. The Scottish government has also said that the bill would ‘not interfere with the professional standards and ethics of the legal profession, or with the judicial functions of the courts’.
The bill is currently at the stage one of the legislative process, and is being scrutinised by the Equalities, Human Rights and Civil Justice Committee. The committee is expected to publish its report on the bill by the end of January 2024.