REGULATING THE LEGAL PROFESSIONS
This guarantees that the professions are kept independent of the government and free from any kind of political pressure. It ensures that lawyers can give their clients the advice they need without ‘fear or favour’. Further information about the role of the Court of Session and the Lord President in guaranteeing the independence of the legal practitioners can be found on the “Independence” page.
The regulatory objectives for legal services are set out in law and include supporting the rule of law, protecting and promoting the interests of consumers, promoting access to justice and promoting competition in the provision of legal services.
For more information see a table of the statutory functions the Lord President exercises in regulating the legal professions.
Reform of legal services regulation in Scotland
In April 2017 Esther Roberton was invited to chair an Independent Review of Legal Services Regulation in Scotland. The Chair’s Report 'Fit for the Future – Report of the Independent Review of Legal Services Regulation in Scotland' was published in October 2018.
The principal recommendation of the Roberton Review would have removed the power to regulate the legal profession from the judiciary and transfer it to a body responsible to parliament. In its response, the senior judiciary expressed grave concerns at the Review’s failure to recognise the constitutional importance of the independence of the legal profession, its importance in helping secure the independence of the judiciary and thus, the rule of law.
Read the senior judiciary’s response to the Roberton Report.
The Scottish Government consulted on the regulation of the legal services between October 2021 and December 2021, seeking views on the recommendations of the Roberton Report.
Senior judges responded to this consultation pointing out the need for the regulation of the legal profession to remain independent of the government and parliament to ensure that the rights of citizens and the rule of law are protected. The senior judiciary consider that improvements can be made within the practice of the system without removing the regulatory powers of the Lord President and the independence which he safeguards.
Read an executive summary of the response submitted by the senior judges.
Read the full response submitted by the senior judges.
The Scottish Government introduced its Regulation of Legal Services (Scotland) Bill on 20 April 2023. Paragraph 5 of the accompanying policy memorandum states that:
“The overarching policy objective of this Bill is to provide a modern, forward-looking regulatory framework for Scotland that will best promote competition, innovation, and the public and consumer interest in an efficient, effective, and efficient legal sector. The Bill will implement a number of key recommendations from the ‘Independent Review of Legal Services Regulation in Scotland’ by Esther Roberton (the Roberton report)”.
The Equalities, Human Rights and Civil Justice Committee, the lead committee for the Bill, launched its call for views on the Regulation of Legal Services (Scotland) Bill on 31 May 2023.
The senior judiciary responded to the call for views on 8 August 2023. The senior judiciary has concerns about the threat the Bill poses to the independence of the legal profession and the judiciary if it remains in the form it is currently drafted. In this Bill the government proposes to:
- take into its own hands powers to control lawyers;
- remove aspects of the Court of Session’s oversight of the legal profession; and
- impose itself as a co-regulator along with the Lord President.
The Court of Session has responsibility for the admittance to many of the legal professions. For example the Court is responsible for admitting people to the public office of advocate or removing them from that office.
The Court has handed down some responsibility for the routine regulation of advocates, solicitors, and commercial attorneys to their professional bodies, the Faculty of Advocates, the Law Society of Scotland and the Association of Commercial Attorneys. However the Lord President has the ultimate responsibility for regulation of the legal professions.
Any changes to the rules regulating the professions must be approved by the Lord President. He will take into account all the relevant information before considering, revising and, if content, granting approval for the change.
Read more about these rules and procedures.
Scottish Legal Complaints Commission
The Lord President and the Court plays a role in the operation of the Scottish Legal Complaints Commission (SLCC). The Court oversees the complaints process by considering appeals against decisions made by the Commission. Members of the SLCC are appointed by the Scottish Ministers making the role of the Lord President, as independent of Government, particularly important.
A new law in 2010 widened the legal services market in Scotland so that businesses could be owned by solicitors and non-solicitors together. To safeguard the independence of the solicitors, an important role was given to the Lord President to regulate the new business models. For example, the Lord President must agree to any government regulations about which kinds of other professionals lawyers can own businesses with.
Regulatory responsibility must lie with the Court and the Lord President in order to ensure the independence of the legal professions and the judiciary. The courts often decide disputes between citizens and the State and lawyers advise clients in those disputes. This means the courts and lawyers must always be entirely independent of the State in order to protect the rights of citizens and the rule of law.Read more about independence