Chapter 3: Who will be affected by the Bill?
3 This chapter considers which professionals offering legal services will be affected by the changes in the Bill.
Regulated legal services in Scotland
3.1 Unlike other regulated areas of business (for example, financial services), there is no all-encompassing definition of "legal services" which are subject to regulation. Instead, we have two regulated professions - solicitors and advocates - together with a limited number of other professionals authorised to provide services which otherwise only solicitors or advocates could provide.
3.2 The Research Working Group on the Legal Services Market in Scotland 15 commented that a solicitor or advocate may provide their services in all of the following areas of law: employment, personal injury, financial services/tax, immigration, criminal law, residential conveyancing, commercial conveyancing, commercial, family and welfare/debt/housing and consumer law.
3.3 However, the only areas reserved exclusively to solicitors are set out in section 32 of the 1980 Act. In effect, these are conveyancing, applying for confirmation in executries, and preparing writs relating to court proceedings. For many solicitors, particularly those providing legal services to the business sector, these are only a small part of their legal business.
3.4 Even these reservations are subject to exceptions, namely licensed conveyancers and executry practitioners, and people granted rights to conduct litigation and rights of audience under sections 25-29 of the 1990 Act.
3.5 All solicitors have rights of audience in the district and sheriff courts. Solicitors who are solicitor advocates also have rights of audience in the supreme courts, the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council.
3.6 Advocates specialise in litigation or pleading a case in court, although they will also appear in a variety of other forums, and they can also provide written advice. Advocates are able to plead in any court in Scotland. They are granted rights of audience by the Court of Session. A description of the legal services the advocate provides is given on the Faculty of Advocate's website. 16
Defining legal services
3.7 We considered whether it would be desirable to provide in the Bill a comprehensive definition of "legal services" which would operate to bring anyone who provided such services within the scope of regulation. This could create a level playing field between, for example, solicitors and others who compete in the provision of legal services but may currently be unregulated.
3.8 We have concluded that this would not be practicable or desirable for the following reasons.
- Defining the boundary of legal services is extremely difficult - definitions in other jurisdictions are often tautologous, essentially defining legal services as "what lawyers do". 17
- Many of the areas which would be covered by such a definition are already regulated by other legislation, some of which is reserved to the UK Parliament (such as financial services, immigration advice, and consumer credit). Further regulation could be outwith the current powers of the Scottish Parliament and in any event could create significant regulatory conflict.
- We have no evidence of widespread detriment to consumers across unregulated areas (such as the provision of basic legal advice by the voluntary sector) 18, and creating a new regulatory regime for all providers in such areas would be disproportionate. We discuss a specific concern later when we consider whether claims management companies in Scotland should be regulated and we invite views on the subject (see chapter 9).
3.9 Therefore, we propose that the Bill will provide for the following.
- The professions of solicitors and advocates will continue to be subject to regulation.
- Insofar as solicitors and advocates continue in traditional forms of practice (that is, sole practitioners or solicitors in partnership only with other solicitors), that regulation will continue to be by the Society and Faculty of Advocates respectively.
- The reserved areas of practice will remain as now, although we will consider whether it would be desirable to provide that these reserved areas could in future be changed by subordinate legislation.
- The regulation of ABS will apply to any other form of business where a legal professional is involved in the provision of legal services to third parties.
- In that context, "legal services" will be broadly defined, on similar lines to the definition of "legal activity" in the LSA 2007, namely legal advice, assistance or representation in connection with the application of the law or the resolution of legal disputes. 19
- A business which does not involve legal professionals will not be regulated under the provisions of the Bill, even if it provides legal services within this broad definition. It will not be permitted to provide services in reserved areas.
3.10 At present, professionals who are not solicitors are prevented from preparing any papers in respect of an application for a grant of confirmation in favour of executors. 20 The Government is of the view that such work should continue to be regulated, but is not convinced that it should be impossible for other regulated professionals, such as accountants, to carry out this task. It is not obvious why this particular aspect of handling estates should be restricted when, for example, advising on a will is not.
3.11 There is already a method of acquiring the rights to prepare confirmation papers through an application for rights to conduct litigation or rights of audience, but this is not tailored to the needs of those seeking confirmation rights. 21 It requires the body to apply for wider rights of audience even though they may have no intention of exercising such rights.
3.12 We are, therefore, considering whether the Bill should include a provision that would allow a professional or other body to apply for executry rights. This would allow approved non-solicitor members of that body to exercise confirmation rights in the same way that probate rights are exercised in England and Wales. 22
3.13 If provision were made in the Bill to allow approved non-lawyers to prepare papers in an application for a grant of confirmation in favour of executors, application would be made only for the rights required and only to Scottish Ministers (rather than to Scottish Ministers and the Lord President, as applies for rights of audience). The process would still be subject to rigorous safeguards and guidance similar to that in place for applications for rights to conduct litigation and rights of audience. Anyone exercising such rights would be regulated by the approved body.
5 Should the areas of business reserved to legal professionals as described in paragraph 3.3 remain as now?
6 Do you support the proposals that the Bill should focus on the regulation of legal professionals and businesses where legal professionals are involved in the provision of legal services to third parties (for the reasons given in paragraph 3.8)?
7 Do you agree that (subject to the issues discussed in chapters 7 and 8), the arrangements for regulation of solicitors and advocates in traditional forms of practice, should remain as they are now?
8 Do you think that provisions to allow applications for confirmation rights, as described in paragraphs 3.10 to 3.13, should be included in the Bill?