The Regulation of Legal Services (Scotland) Bill was introduced on 20 April 2023. This blog provides a brief, non-exhaustive summary of some of the main discussions on the Bill to date, ahead of Stage 3 consideration by the Parliament on 20 May 2025.
Stage 1 – a “constitutionally inept” Bill?
The Bill is aimed at modernising the regulatory framework under which legal services are provided in Scotland.
It follows from work carried out by the Law Society of Scotland in 2015 and recommendations made by Esther Roberton in her October 2018 report “Fit for the Future – Report of the Independent Review of Legal Services Regulation in Scotland”.
The Scottish Government ultimately chose not to follow the Roberton report’s main recommendation that there should be an independent regulator for the legal profession (a recommendation which the Faculty of Advocates and the Law Society opposed). Instead, it decided to build on the existing framework where professional bodies have a regulatory role in addition to representing their members (see the SPICe Bill briefing for details).
The reform proposed in the Bill is therefore much less radical than was originally proposed by Esther Roberton as the Faculty of Advocates and Law Society would retain their regulatory roles and would also have a role in handling complaints against their members.
Judicial controversy
Although the Bill was aimed as a balance between different interests (see the Policy Memorandum), and followed extensive consultation, it quickly became mired in controversy with the judiciary and the legal profession when introduced.
One of the main concerns was that the legislation would give the Scottish Ministers too many powers over regulation, leading to risks of political interference and threatening the rule of law and the independence of the judiciary.
The Senators of the College of Justice (judges of the Scottish supreme courts) summarised their concerns in written evidence to the Equalities, Human Rights and Civil Justice Committee (the Committee). They argued that:
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.
These proposals are a threat to the independence of the legal profession and the judiciary. It is of critical constitutional importance that there is a legal profession which is willing and able to stand up for the citizen against the government of the day … If the Bill is passed in its current form, Scotland will be viewed internationally as a country whose legal system is open to political abuse.
The then Lord Justice Clerk, Lady Dorrian (second most senior judge in Scotland), was even more blunt, stating in oral evidence to the Committee in November 2023 that the Scottish Government’s proposals were “constitutionally inept.”
Committee scrutiny
At Stage 1, the Committee shared the concerns raised by the judiciary on the need to safeguard judicial independence and recommended that the Ministerial powers be removed (paragraph 254 of the Stage 1 Report). However, a majority of the Committee’s Members agreed to the general principles of the Bill on the understanding that the Scottish Government would work with the Lord President (head of the judiciary and Scotland’s most senior judge) to resolve the problems and would amend the Bill at Stage 2 accordingly (see paras 261-263 of the Stage 1 Report).
The Committee’s Stage 1 Report also raised a number of other issues for the Scottish Government, as did the Delegated Powers and Law Reform Committee in its November 2024 Report on the Bill.
The Committee noted in particular that:
144 … the Scottish Government may have missed an opportunity to take a simpler, more user-friendly approach in creating a single streamlined complaints process which would have benefited consumers and regulators alike.
The Committee didn’t take a firm view though on the issue of whether or not an independent regulator was appropriate. It simply stated at paragraph 80 of its Stage 1 Report that, while regulatory reform was needed, there were:
“conflicting positions of the legal profession and consumer groups and others to the setting up of an independent regulator”; and that
“the Bill as proposed, which builds on the existing framework, appears to satisfy neither group.”
Stage 2 – Ministerial powers removed and other amendments made
Unlike most Bills where Stage 2 follows relatively quickly from Stage 1, this didn’t happen in the Regulation of Legal Services (Scotland) Bill. Instead, 2024 was taken up with the Scottish Government discussing proposals to amend the Bill with the Lord President and other stakeholders, and it wasn’t until January 2025 that these amendments were considered by the Committee.
The result was that the Scottish Government lodged a very large number of amendments in the run up to Stage 2 (summarised in a letter from the Minister for Victims and Community Safety, Siobhian Brown MSP, to the Committee on 18 December 2024 and reflected in the Keeling Schedule, i.e. the mark-up to the Bill at Stage 2).
Removal of Ministerial powers
The vast majority of the Scottish Government’s amendments were agreed to at Stage 2. The largest change was the removal of various Ministerial powers in the Bill and their replacement with an enhanced role in the regulatory framework for the Lord President.
Offence of using the title “lawyer”
The Bill introduced a new offence of using the title of ‘lawyer’ with intent to deceive in connection with providing legal services to the public for fee, gain or reward (section 82). At Stage 2, a Scottish Government amendment (amendment 456) was agreed to which means this will now be an offence without there having to be any intent to deceive. A similar amendment (amendment 456) was agreed to in relation to the offence of pretending to be a regulated legal services provider.
The requirement of an “intent to deceive” was removed from section 84 which includes a similar offence in relation to advocates. The amendment (amendment 457) means that it would be an offence for a person who is not a member of the Faculty of Advocates to imply that they are a member without reasonable excuse. Other offences in the Bill have been similarly tightened up (e.g. section 40 in relation to the offence of pretending to be an authorised legal business).
Consumers and complaints
There was a focus at Stage 2 on various aspects of the complaints system and discussion on how best to create more consumer-focussed legislation in this area.
For example, following a recommendation in the Committee’s Stage 1 Report, the Scottish Government dropped its proposal to change the name of the Scottish Legal Complaints Commission (SLCC) to the Scottish Legal Services Commission.
Amendments were also agreed to which would allow the SLCC and the Law Society to disclose information about a complaint where it is in the public interest to do so (amendments 533 and 534 from Stuart MacMillan MSP and amendment 535 from the Scottish Government). The aim is to allow these bodies to take a proactive approach to disclosing information on large-scale complaints, such as in relation to the recent case where McClure Solicitors went into administration.
A range of amendments were also agreed to which were aimed at improving the SLCC’s processes and procedures.
The Committee also agreed to amendments by Maggie Chapman MSP (amendments 539 and 540) which would require the SLCC to ensure that its Consumer Panel, which provides the SLCC with consumer-focussed support, is adequately funded. The Consumer Panel has subsequently written to the Committee making further arguments around the need for proper funding.
The Committee did not agree to Paul O’Kane MSP’s amendments (644, 645 and 650) which were aimed at giving powers to professional organisations to compel practitioners, firms or authorised legal businesses to provide information before a complaint has been made. The Minister for Victims and Community Safety, Siobhian Brown MSP, agreed to consider this issue further at Stage 3, but argued during the Committee’s meeting on 28 January 2025 that the proposed powers are overly broad and are already covered by section 67(3) of the Bill which allows a legal regulator to raise a complaint in their own name and to require information to be provided.
The Committee also did not agree to Paul O’Kane MSP’s amendment (amendment 557) which would place back in statute a requirement for the SLCC to determine whether a complaint was “frivolous, vexatious or without merit” before it could investigate. The approach the Bill takes is to allow the SLCC to make rules on this matter with the aim of creating more flexible procedures.
Stage 2 didn’t, however, lead to more radical change in the current complaints system. Tess White MSP proposed probing amendments (amendment 541) aimed at changing the complaints system more fundamentally so that only the SLCC, and not the professional bodies, would consider complaints. These were, however, withdrawn following the Minister’s commitment to discuss the issue prior to Stage 3.
Tess White MSP’s amendments (646 to 649) to make the Bill’s register for unregulated legal services providers mandatory rather than voluntary was also withdrawn, with the aim of returning to the issue at Stage 3.
Review mechanism
An amendment (637) requiring the Scottish Ministers to review the legislation five years after Royal Assent was proposed by Tess White MSP. The aim was to ensure good post-legislative scrutiny of the new legislation. The Minister expressed concerns that commencement would be a more appropriate trigger for the review period but indicated that she was happy to further engage with this issue at Stage 3. The amendment was subsequently withdrawn.
Angus Evans, Senior Researcher, SPICe