Craig Cathcart

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, lawyers should 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 amounting 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 a non-solicitor majority. The law is clear that this committee must carry out its regulatory functions independently of the Law Society’s elected Council. Also, every regulatory sub-committee must also have at least 50 per cent non-solicitor membership.

Taken together, it means every regulatory decision is taken or overseen by non-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 complaint handling 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 co-regulation.

This idea of a professional body co-regulating its members is a common one. Look at ICAS and chartered accountants or RICS with chartered surveyors. Even the teaching profession moved to having a single regulatory body in the form of the General Teaching Council. You can look overseas to places like Ireland, Canada, and Australia, where law societies and bar associations are the bodies setting and enforcing standards for lawyers. This system works.

So, as the Scottish government consults on reforming legal services regulation, what is the problem needing solved?

Let’s be clear; 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 Too much of it is outdated, rigid and unnecessarily complex.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 regulation happens. 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 in the delivery of legal services. We also need 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% 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 the cities, towns, and villages of Scotland. The question is how to best build on this track record.

I am optimistic about the Scottish government’s 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 when things do go wrong. Importantly, we can 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.

Craig Cathcart is a senior lecturer in Queen Margaret Business School and the non-solicitor convener of the Law Society of Scotland Regulatory Committee. This article was first published in The Scotsman.