Professor Lorne Crerar

The Roberton Review proposals for reform of legal services regulation in Scotland are radical.

They have at their heart systemic change, founded on the need for the introduction of an independent legal services regulator. I was a member of the Roberton Review advisory group and supported the review’s conclusions.

However, the profession in general has been resistant to the core recommendation – on the very day of the review’s publication of proposals over a year in the making, the Law Society of Scotland declared its opposition.

More than one year on I do not believe we are having an informed debate as to why, or why not, we as a profession should be resistant to the prospect of an independent regulator of legal services. The case to maintain the status quo would have more credibility if detailed, open and informed debate had led to the conclusion that the proposals were contrary to the interests of the consumer.

While I do not doubt the veracity of views against reform and the understandable basis for “no change”, there is a good and robust case for reform. There are many aspects to this debate, and I recently expanded on a number of these in The Journal of the Law Society of Scotland.

However, a key consideration which needs to be addressed, one which offers a different perspective to the arguments already voiced, is the continued erosion of Scots law in our jurisdiction and why aspects of the review are not just well grounded on best regulatory principles, but are necessary to facilitate and support the preservation of Scots law in a modern, evolving Scottish society.

It has long been recognised that Scots law is a critical part of our culture and heritage. In what has been described as one of the “opt-outs” from The Treaty of Union 1707, the Scottish legal system was preserved to help support the Scottish identity.

Scottish legal principles are the basis on which current generations of Scottish solicitor practitioners dissect and thereby solve legal problems. Scots law possesses uniqueness in its fabric and has been much admired across the world. If you accept that Scots law is important in continuing to shape our national identity, culture and spirit; is it not incumbent on us to try to nurture and protect it?

There is a growing concern of the law of choice in our jurisdiction moving from Scots law to English law, in part because since the financial crisis of 2008-10 there has been a dramatic increase in the number of English headquartered law firms trading in Scotland. Over the same period, many Scottish domiciled law firms have either been absorbed into these firms or otherwise disappeared.

Where the circumstances of the transaction or matter allow, it is natural that an important factor in the choice of law to be adopted will be the expressed choice of the firm advising the client. If the predominance of their practice is dealing in matters of English law, it is understandable that it would rest on its precedents, styles and knowledge data, thereby avoiding the need for a transactional or matter understanding of Scots law. Additionally, any disputes that follow will rest on that choice.

The usage of Scots law as the governing law when choice exists has significantly declined and this decline is not helped by those of us remaining headquartered in Scotland being hamstrung by a rigid regulatory system which, at present, is not fit for purpose.

To compete effectively with all other providers, Scottish headquartered firms need the capacity to innovate as they can and be regulated in the same way as their competition by a regulator who acts independently of all of them. If the regulation of legal services is not of all providers in our jurisdiction (and technology will drive and change the method of delivery and the nature of those that deliver legal services), it follows that the decline of our indigenous legal profession will inevitably continue.

Therefore, I believe a regulatory regime for Alternative Business Structures should be immediately introduced enabling Scottish headquartered firms to compete in the challenge for long term sustainability. Why there has been such delay since the Scottish legal profession voted on the matter in 2010 is a continuing mystery.

I agree with the review that as a jurisdiction we are not yet beyond the point of no return (although we are close), and Scottish law can still be a valuable tool in our personal and commercial cultures in Scotland going forward.

Lorne Crerar is the co-founder and chairman of Harper Macleod. This article first appeared in The Herald.