Katie Hay, Law Reform Officer and member of Legal Services Bill Team of the Law Society gives us her view on the Bill, the debates, and where we are now.

Nine months into the bill, Stage 2 has now been completed and almost 400 amendments considered. Here is a quick review.

Key changes to the Legal Services Bill during its revision by the Justice Committee included the removal of the section 92 measures that would have allowed ministers to influence the composition of the Council and set the criteria for non-lawyer membership of the ruling body. However, the whole of section 92 was not removed, as reported in the Firm. It retains important provisions to permit non-solicitors to become full voting members of the Council, rather than lay observers as at present. The Society believes that enhancing the role of non-lawyers reflects a statutory duty to promote the interests of the public as well as the solicitors’ profession.

A further amendment was passed to ensure that the functions of a new regulatory committee are kept separate from the Council, while a proposal to set up a separate representative council at the Society was rejected. Together, the amendments strengthened the independence of the profession. The Society’s role in pressing for changes to section 92 alongside other proposed amendments was recognised and welcomed by the Scottish Government.

The compromise proposed by the Society on the type of alternative business structures permitted in the legislation was also backed by the committee. An amendment passed in preference to the government’s position of allowing 100% external ownership and investment, agreed that ABSs should be at least 51% owned, managed and controlled by solicitors or other regulated professionals, with no more than 49% non-lawyer or non-regulated professional owned managed and controlled. The model supported by the majority of committee members was adopted by the Society after its annual general meeting in May.

The Committee debated the role of the Lord President in the bill several times. The Committee agreed with the Society’s suggestion that he should have an enhanced role in the process for appointing regulators, to safeguard the independence of the profession. Community Safety Minister Fergus Ewing said: “Effectively, that would give the Lord President a veto over who can become an approved regulator.”

The future of the Scottish Solicitors’ Guarantee Fund was also debated in successive sittings of the committee. Its members approved an amendment to open the fund to all new legal services providers on paying a contribution. The Council believes that only the providers it regulates should be allowed access to the fund. A further measure to put a £1.25 million cap on claims was also agreed, an important change that will reduce the risk to the fund.

In one of the most substantial changes to the Bill, the committee agreed an entire chapter of amendments to allow the robust regulation of non-lawyer will writers, an issue raised by the Society and the Scottish Law Agents Society over the course of several years. As a result, Scotland will be the first jurisdiction in the UK to offer the same protections as those that exist for solicitors’ clients.

Other successful amendments suggested by the Society to reflect its members’ views included: adding the promotion of the interests of justice to the regulatory objectives that apply to legal services providers and regulators; and, ensuring client confidentiality and ethical behaviour are included among the professional principles to which providers must adhere.

As requested by the Justice Committee, the Society will continue to work with the profession, government officials and MSPs over the summer, discussing the regulatory framework for legal services providers, the operation of the Guarantee Fund and other issues raised during stage 2. Stage 3 of the parliamentary process begins in September.


Katie Hay