Michael Sheridan: Lawyers must respond to seismic changes proposed by Roberton Review
Michael Sheridan reflects on the changes proposed by the Roberton Review and the urgent need for Scots lawyers to participate in the discussion on the future of legal regulation.
This is a period of seismic change in the regulation of the legal profession. Whereas previously there was a long-standing consensus that the solicitors’ profession be regulated by a Council of Solicitors at the Law Society and that the specialist branch of advocates be regulated by the Faculty of Advocates within the College of Justice, both subject to oversight by the Lord President of the Court of Session, the government now appears to be considering the exclusion of solicitors and advocates and judicial oversight from that regulation.
These conclusions follow from the Legal Services (Scotland) Act 2010 and from the terms of the Roberton Review, which set out a stall at which the regulation of legal services shall be transferred from the judicial to the executive (government) branch of state authority.
However, given that the government itself is frequently a party to actions in the courts, including all criminal prosecutions and many civil actions, there is serious doubt as to the propriety of that government having regulatory control over legal representation at court.
That regulatory control governs the education and training of future lawyers, their admission to the profession, their conduct as legal representatives and, indeed, their ongoing suitability to continue to practise as lawyers. It includes power to censure, fine and exclude from practice those lawyers who are found to have been of unsatisfactory standard. Should one side of a legal dispute really have those powers over the legal representatives of the other party to that dispute? One might reflect upon the recent court action involving the government and a former first minister and the difficulty that any lawyer would have had in calling their own regulatory master to account for the mismanagement of its own process. One might conclude that the regulation of the legal profession should be a thoroughly independent process, not under the control of a party to proceedings in court.
It seems that the legal profession itself will have no voice in these seismic changes or in the ongoing regulation unless they make that voice for themselves. That profession might look to setting up its own representative body, supported by a full-time office, employing research staff to keep individual members of the profession fully informed as to regulatory developments and requirements and to assist in the formulation of such strategies, submissions and, wherever required, legal action as may be necessary to maintain the vigour and independence of the profession in the face of statutory incursion, a facility which is entirely lacking at present.
This is a challenging project which would call for near unanimous commitment by the practising profession. The Scottish Law Agents Society (SLAS) aims to start the ball rolling by calling for a meeting of all interested parties to coincide with its own AGM on Thursday, 20 June 2019 from 5:30pm at the Royal Faculty of Procurators in Glasgow. This meeting will address the following questions: has the government indicated an intention to transfer the regulation of legal services from the judicial to the executive (government) branch of state authority? Would such a transfer be consistent with the rule of law with particular reference to the doctrine of the separation of powers? What, input, if any, should the legal profession itself have into the regulation of that profession? Would that transfer be in the interests of the public? To what other issues do these proposed changes give rise?
However, neither the law of Scotland nor the legal process including the regulation of lawyers belongs to the government or to the legal profession or to anyone other than the Scottish public. This is clearly a time when members of that public might wish to reflect upon these issues and raise relevant questions or make their own recommendations and these would be very gladly received by our Society by email at firstname.lastname@example.org.
SLAS hopes for a wide debate which shines a light on all the issues and interests and arrives at a solution which guarantees each member of the public access to vigorous and independent legal representation when it is needed.