Consultation can provide launchpad for stronger regulation in the long term

Reform can better protect consumers and allow the Scottish legal services market to thrive in a post-covid world, writes Craig Cathcart

How on earth can you defend self-regulation in this day and age? How can lawyers possibly be allowed to mark their own homework?

In my time as convener of the law Society’s Regulatory Committee, I’ve often heard these questions asked. They are also the easiest questions to answer. No, I cannot defend self-regulation and no, lawyersshould not be allowed to mark their own homework.

They are easy answers because self-regulation has been a thing of the past for the solicitor profession for many years. Indeed, as one of over 60 non-lawyers involved in regulating Scotland’s solicitors and protecting consumer interests, I am proof of that. It is frustrating that some still see the current regulatory system as a mounting to self regulation. I accept we need to do better in explaining how and why such a view is misguided.

By law, the society’s regulatory committee is made up 50/50 of solicitors and lay members. it must also have a lay convener, effectively delivering anon-solicitor majority. The law is clear that this committee must carry out its regulatory functions independently of the Law Society’ selected council. Also, every regulatory sub-committee must also have at least 50 per cent nonsolicitor membership.

Taken together, it means every regulatory decision is taken or oversee nbyn on-solicitors. Individually and collectively, they ensure the public interest sits at the very heart of standards setting, the admission of solicitors, conduct investigations and more. In fact, every committee member – solicitor and lay – is bound by law to protect and promote the interests of consumers.

Plus, with an independent complainthandling body in the scottish Legal complaints commission and another separate body in the Scottish Solicitors Discipline Tribunal, you have a strong set of checks and balances, an effective model of coregulation.

So, as the Scottish Government consult son re forming legals er vices regulation, what is the problem needing solved?

Some things do need fixing. Most of the legislation covering the regulation of solicitors dates back over 40 years. Too much of it is outdated, rigid and unnecessarily complex. It is, put simply, not fit for purpose. After all, today’s legal profession is larger, more diverse and more international than ever envisioned in 1980 when the House of Commons passed the Solicitors Scotland Act which created the regulatory system we still broadly work to today.

But the mischief exists, not in who regulates, but in how regulationhappens. the process for legal complaints is slow, cumbersome, and expensive to operate. There is a growing unregulated market, which too often places consumers at risk and leaves them with few remedies when things go wrong. We need an effective regulatory regime for the rapidly expanding use of technology, more transparency and more accountability.

And let’s not lose sight of what is working. standards in the legal sector are high, with over 90 percent satisfaction amongst the clients of Scottish solicitors. Complaints numbers are at similar levels to 10 years ago, despite record numbers of solicitors in practice. Competition is thriving, with over 1,100 law firms across Scotland. The question is how to best build on this track record.

I am optimistic about the consultation being a launchpad for a broad package of reforms that strengthens the regulatory system for the long term. In doing so, we can better protect consumers and also have a system that allows the Scottish legal services market to thrive in a post-covid world still full of uncertainty. It’s an opportunity the government cannot afford to pass up. See www.lawscot.org. uk/ legal services reform Craig Cathcart is a Senior Lecturer in Queen Margaret Business School and non-solicitor convener of the Law Society of Scotland Regulatory Committee