OFT & Which? call for independent regulation of lawyers as Justice Committee hears evidence on Legal Services Bill

Holyrood’s Justice Committee heard regulation must be taken away from the Law Society of Scotland. THE OFFICE OF FAIR TRADING has told the Scottish Parliament’s Justice Committee the Law Society of Scotland should be stripped of its regulation role, to give better consumer protection in any reformed legal services market, after constant revelations in the media and in consumer groups investigations & public surveys of the legal profession’s constant habit of covering up complaints against the rising numbers of ‘crooked lawyers’ working in Scotland’s many law firms.

Office of Fair Trading & Which? call for independent regulation of legal services in Scotland.

The OFT, and Which? both reiterated their points that a separation of the Law Society’s regulatory role from the Society’s main function, which is to represent its member solicitors & law firms .. usually against the interests of clients and consumers, when a complaint arises challenging the conduct or service of a solicitor or law firm.

Sue Aspinal, team leader of the professions team at the OFT, said in reply to a question from Cathy Craigie MSP on the separation of the Law Society’s regulatory role : “From the evidence, we know that we are talking about public perception. If a body were to try to further the interests of both its membership and the public, tensions—even conflict—will arise. The best way in which to avoid conflict is to have a separation of the two roles.”

Julia Clarke, of consumer group Which? commented further on the issue, saying : “Which? believes that there should be a separation between the two functions. The system does not work satisfactorily, so it cannot be said that it is perfect. At the very least, particularly in terms of public perception, separating the two functions would be an improvement.”

Ms Clarke continued : “Obviously, the proposal for a lay majority and a lay chair is good news. That is progress, but our view is that there should be complete separation between the two functions. If that cannot be done, the proposed committee to advise the Government on future regulation is a way forward. It is important that its membership should be drawn from beyond the legal profession. It should certainly have a lay majority and a lay chair. It should be a statutory body because it is proposed that the Government will regulate the regulators. That is not ideal but, if it is to happen, it is important that we have a strong advisory body.”

After an additional question from Cathy Craigie MSP on whether consumers might benefit from more than one regulator in Scotland’s reformed legal services market, Sue Aspinall of the OFT replied : “Competition should normally have benefits for consumers unless there is a particular market in which it is best to have only one provider. The OFT's position is that approved regulators have an important role to perform in the way that they license and we hope that, if there is demand for a choice of approved regulator, that will develop the number of licensed legal services providers coming through, which will mean that there will be more such firms for consumers to choose from.”

Nigel Don MSP ‘ill informed’ over lack of client’s access to advocates. Justice Committee member Nigel Don MSP, also Parliamentary liaison to the Justice Secretary Kenny MacAskill, entered the debate on the question of the Faculty of Advocates being left out of legal services reform, apparently putting forward Mr MacAskill’s own view that regulation of legal services by judges of the High Court, rather than consumer watchdogs, would be a preferable model. Mr Don also went onto make an outlandish, unsubstantiated claim that “0.5% of the population were not able to work through a solicitor to get the right advocate …”

Clearly Mr Don hasn’t spent much time with actual members of the public trying to pursue cases through the courts which require the services of an advocate. If he had, he would know his fantastic claim is well out ….

Nigel Don enquired : “I am told that 460 advocates practise in Scotland. That is a fairly small bunch of professional, highly qualified people. Do we really need a complicated structure for the regulation of 460 people who are regulated by the court anyway ?”

Julia Clarke, of Which"? replied : “The consumer principles are the same wherever people live in the UK. People are entitled to the same level of transparency and the same protections in the industry with which they are dealing. If services do not modernise, the consumer has no way of demanding their modernisation—they are just presented with what is available. If there is no opportunity for choice, the consumer cannot make their needs felt and must keep taking whatever is delivered. Unfortunately, that is the case at the moment.”

Nigel Don further added : “Would you not prefer to have a service—especially a legal one—that is regulated by the judges of the High Court rather than by some consumer watchdog? If I want lawyers, whose business is speaking to a court, to act professionally in my interests and the interests of justice, would I not much prefer them to be guided and regulated by the Lord President rather than by another organisation ?”

Julia Clarke of Which? replied : “I cannot see what is wrong with independent regulation that is properly regulated and comes with all the necessary safeguards. I think that everyone was keen that that should be in place and, by and large, that is what is proposed in the bill.”

Even some solicitors think Law Society is now ‘too crooked itself’ to be trusted with regulatory role. A solicitor described Mr Don’s comments this morning as ‘ill informed’, saying : “Mr Don should come in and ask some clients if he can follow their cases all the way to court. If he did he would realise that obtaining the services of an advocate is not like turning on a tap to get water.”

He went on : “We as a profession can fool ourselves as much as we want about who trusts the Law Society to regulate solicitors, but the fact is the public do not trust self regulation, nor do they have a reason to trust self regulation, certainly going by the numerous bad examples set by the Law Society. Putting the Lord President in charge, as Mr Don suggests, would probably only make matters worse from the public’s perspective, given the fact that even the Lord President was once himself, a lawyer.”

You can read the full report of the Justice Committee meeting and the evidence from the OFT & Which?, here : Legal Servies Bill evidence, Justice Committee Official Report 8 December 2009 and watch the video coverage on the Parliament’s website HERE, or at the following links from InjusticeTV here :

Pt 1 Pt 2 Pt 3

Pt 4 Pt 5 Pt 6

Pt 7

Over the next few days, more will be reported from the Justice Committee hearings on the Legal Services Bill, including coverage of Professor Alan Paterson’s evidence, and sessions with the Law Society of Scotland, Faculty of Advocates, and other sections of the legal profession who attended Parliament.