REGULATING THE LEGAL PROFESSIONS

 

The role of the Lord President

The Lord President is the head of the Scottish judiciary and has a wide variety of roles.

The Lord President is responsible for regulating the legal profession in Scotland. This role is held on behalf of the Court of Session, Scotland’s highest civil court. 

Court of Session


It is vital that the responsibility for regulating the legal profession lies with the Court and the Lord President in order to ensure the independence of the judiciary and the legal profession. Having the Lord President as the ultimate regulator of the legal profession guarantees that the legal profession is independent of the government and free from any kind of political pressure. It also protects the rule of law and the rights of citizens. This is important because citizens often have disputes with the government and may need to seek legal advice on those matters. These arrangements ensure that lawyers can give their clients the advice they need without ‘fear or favour’.

Independence


The judicial oath requires judges to “do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill-will”. On appointment, any ties with a political party or organisation must be cut. Judges must also recuse themselves (step down from legal proceedings) if there is a conflict of interest. Read more about judicial ethics.

All regulated legal practitioners are officers of the court, whether they appear in court or not, and owe certain duties to the court and to the public. The rules regulating the profession are based on independence, impartiality and integrity. The rules applying to each branch of the profession apply equally to all members and inform every piece of advice given to a client. Those values remain as some members of the legal profession become members of the judiciary.

The Court plays a role in shaping the standards expected of legal professionals, for example, in deciding negligence actions and highlighting in its judgments (rulings) good or bad practice by lawyers. Statutory appeals against determinations of the Scottish Legal Complaints Commission are currently heard and decided by the Court of Session (its Inner House). Regulation by the Court ensures strong and effective oversight of the professions by experts and frank, frequent and respected dialogue with the professional bodies.

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. If it passes, these objectives will be adjusted by the Regulation of Legal Services (Scotland) Bill.

For more information, see a table of the statutory functions the Lord President exercises in regulating the legal profession.

Regulating the Legal Profession

The Scottish legal profession is made up of lawyers such as advocates; solicitors; and construction attorneys.

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 delegated 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 Construction Attorneys. However the Lord President has the ultimate responsibility for regulating the legal profession.

Any changes to the rules regulating the professions must be approved by the Lord President, who will take into account all the relevant information before considering, revising and, if content, granting approval for the change. The Lord President must approve:

  • rules prepared by the Law Society of Scotland in relation to training (including for  those wishing to be granted higher rights of audience), professional practice, conduct and discipline, accounts, professional indemnity, conduct and practice for conveyancers and executory practitioners, and the admission, enrolment and professional practice of notaries public;
  • rules prepared by the Scottish Solicitors’ Discipline Tribunal in relation to its practice and procedure; and
  • rules prepared by the Faculty of Advocates relating to professional practice, conduct or discipline.

You can read more about the Lord President’s role in approving rules made by the regulators in the table of regulatory functions.

Scottish Legal Complaints Commission

The Lord President, and the Court of Session, play a role in the operation of the Scottish Legal Complaints Commission (SLCC). The Court currently oversees the complaints process by considering appeals against decisions made by the Commission. Members of the SLCC are appointed by the Scottish Ministers after they have consulted with the Lord President. The chair of the SLCC may not remove a member from office without the agreement of the Lord President of the Court of Session. The Lord President may remove the chair from office if the Lord President considers that certain conditions have been fulfilled.

Alternative business structures

The Legal Services (Scotland) Act 2010 widened the legal services market in Scotland so that businesses could be owned by solicitors or other regulated professionals and other individuals. These businesses are called “alternative business structures” or “licensed legal service providers”. Licensed providers of legal services regulated by the 2010 Act can be owned by non-lawyers, however, the stake that must be held by solicitor investors or another regulated professionals is 51%.

Work is being undertaken by the Law Society on the approved regulator’s scheme. See more details on the Law Society of Scotland’s website:

https://www.lawscot.org.uk/members/membership-and-fees/licensed-legal-services-providers/.

The Regulation of Legal Services (Scotland) Bill proposes to make changes to the regulation of alternative business structures.  Before making regulations to specify what is or is not a regulated profession, a professional association, professional activities (or qualifications) or membership of a profession, the Scottish Ministers must have the Lord President’s agreement.

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 and December 2021, seeking views on the recommendations of the Roberton Report.  

The senior judiciary responded to this consultation. Within their response, they pointed 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 considered that improvements could be made within the practice of the system without removing the regulatory role and powers of the Lord President which safeguard the independence of the judiciary and the legal profession.

Read an executive summary of the response submitted by the senior judiciary. 

Read the full response submitted by the senior judiciary.

The Scottish Government introduced the 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 highlighted their concerns about the threat the Bill, as introduced, posed to the independence of the judiciary and the legal profession. In this Bill, as introduced, 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.

Read an executive summary of the senior judiciary’s response.
Read the full response submitted by the senior judges.

 

As at 24 January 2025, the Bill is currently at Stage 2. The Scottish Government tabled amendments to address the concerns which the senior judiciary raised with the Bill. 

 

You can find more information about the Regulation of Legal Services (Scotland) Bill on the Scottish Parliament website: Regulation of Legal Services (Scotland) Bill | Scottish Parliament Website.