Brian Inkster

On 20 May, the Regulation of Legal Services (Scotland) Bill was passed by the Scottish Parliament. That day, the Law Society of Scotland issued a press release hailing their decade of campaigning to achieve this. They highlighted the fact that they would continue as the independent regulator of Scottish solicitors, while gaining new powers to act in the public interest. They also highlighted that a new legal offence of pretending to be a lawyer, in line with the existing offence of holding oneself out to be a solicitor, will provide clarity for consumers about those who have the knowledge and skills to provide legal services in Scotland.

However, the Law Society of Scotland ignored completely what I would consider to be the most significant part of the bill as passed. Namely, that the majority ownership provisions of the Legal Services (Scotland) Act 2010 have been repealed in their entirety.  Those provisions only allowed a licensed legal services provider (commonly referred to as an alternative business structure (ABS), like its equivalent in England & Wales) to exist if at least 51 per cent owned by solicitors or members of another regulated profession.

The Regulation of Legal Services (Scotland) Bill as originally drafted reduced that percentage to 10 per cent. Now the bill, as passed, makes that zero per cent. This is hugely significant for the development of legal services provision in Scotland. It should have been the headline news in the press yesterday.

This significant milestone has perhaps been hidden from sight due to embarrassment on the part of the Law Society of Scotland. Embarrassment that, almost 15 years after the Legal Services (Scotland) Act 2010 was enacted, we still do not have any licensed legal services providers in Scotland. This is because they, as regulator, have yet to start the admission process. Whilst we keep hearing it will launch with tentative dates being given for it to do so, from at least 2019 onwards, there always appears to be a reason to put it on hold. 

At a meeting at the Royal Faculty of Procurators in Glasgow, on 13 October 2022, the then chief executive of the Law Society of Scotland, Diane McGiffen, indicated that the society had put a pause on the launch. This was apparently due to the announcement by the Scottish government on 6 September 2022 to introduce a Legal Services Regulation Reform Bill in 2022/23.

I pointed out at the time how ridiculous this was. Provisions in an Act from 2010 were still not (at that point, 12 years later) implemented. Those provisions could and should simply have been implemented as enacted.

It was not for the Law Society of Scotland to pause the process to consider what effect possible future legislation may have on the existing unimplemented legislation. It was yet another example, in a long history of them, of the Law Society of Scotland dragging their heels when it comes to the introduction of licensed legal services providers.

Hopefully, when the Regulation of Legal Services (Scotland) Bill is enacted the Law Society of Scotland will have run out of excuses and will start accepting applications for licensed legal services providers without further ado. At least now they do not have to consider the question of majority ownership when so doing.