"You sort it out"

Back in August the lead feature in the Journal began: “It would probably be going too far to say that the future of the legal profession in Scotland now lies in its own hands.” That sentence, written following publication of the Office of Fair Trading’s conclusion that current restrictions on forms of legal practice should be lifted, may still be strictly correct, but the latest moves in the ABS saga have left the profession with considerable scope to define its own future.

To recap briefly, the OFT recommended that by the end of 2007, the Scottish Government should publish its policy views on how it considered legal services in Scotland should be regulated, how the professional restrictions could be lifted, and a timing commitment. Ministers accepted that timetable.

A week before Christmas, the ministers’ response was published. Apart from confirming that there are no plans to set up a new regulatory body like the Legal Services Board in England & Wales, and asserting the need for early progress on potential new business models for legal services, it essentially reaffirms the expectation that the Law Society of Scotland and Faculty of Advocates will put forward their detailed proposals for consideration by the government, and approval by their members, by spring 2008.

So when I met Kenny MacAskill, the Cabinet Secretary for Justice, just as the response was released, I put it to him that strictly speaking he wasn’t meeting the OFT deadline.

“No, we’re advising the OFT where we’re at”, he replied. “It’s not just the legal profession but society in Scotland that is different. We want to do what is right for Scotland and not simply replicate what has been decided on elsewhere. So we’re making it clear to the OFT that Scotland is moving in a direction that we are satisfied with as a government and we will keep them posted.”

Supporting role

Since taking office, of course, the SNP administration has made much of its desire to see a distinctively Scottish solution. Even here, however, the minister returned the ball to the Society’s court. “I don’t think it’s for me to devise a distinctively Scottish solution. I would much prefer that the legal profession came to an agreement, because I recognise that there are distinct views within the legal profession in Scotland. As a government all we’ve said is that the status quo is not an option, and we would hope that the profession can discuss as they are doing at the moment and then rally round an agreed position that will move us forward. If they don’t then we would have to intercede; if they delay we will also have to intercede, but I believe that they are making significant progress and that an accord can be reached.”

He made a similar comment over the anxieties expressed by the Society about how the core professional values can be protected when alternative business structures will permit non-lawyer stakeholding in, and quite likely control of, legal practices. “Obviously if alternative business structures come in then we will need to make sure that matters continue to be appropriately well regulated. We would again prefer that the profession sorts that matter out and subject to us being satisfied that it is fair and appropriate, that seems to us to be ideal. It’s about how can we help the profession as opposed to how can we dictate to the profession.”

How far we will go down the road to the full spectrum of business models remains an open question. In the parliamentary debate shortly after the Society’s consultation on business structures was published, members generally sounded a note of caution over the risk of undermining the strengths of the profession and current levels of access to justice. MacAskill himself, asked whether he wants to see the widest possible options for the availability of legal services, contents himself with affirming the twin aims of preserving current levels of service at local level while allowing those with wider ambitions to pursue these, a theme he returns to more than once.

“I prefer to have something that meets the profession’s approval and the needs of Scotland. And from the government’s perspective what we want is a system that allows the excellent service at local level to be continued despite the changing nature of our society, and at the same time those who have ambitions to provide a service outwith our borders to be able to do so. Beyond that, as I say, we are happy to look at what the profession comes to us with, because we prefer to be able to sign off an agreement that’s been signed up to by the profession, as opposed to having to impose something that may be unwelcome to sections of it.”

And the same goes, in his view, for whether there should be a minimum level of control by solicitors in any inter-disciplinary practice.

Consumers and society

What is his message to the Co-op and others who may want to provide legal services in Scotland as they are now gearing up to do in England & Wales? “Our message is that we want what is good for Scotland…. The concept of alternative business structures is something we are happy with; it seems to us that that probably is a direction in which the world is moving. The thought of combines gearing up to acquire a share in Scottish legal firms for whatever purpose is perhaps something that we will reserve a position on to see who they are and why they are coming and what it is they propose to do. But we have made it quite clear that the Tescoisation of our law north of the border is not what we seek, nor what we think is appropriate for Scotland.”

So where does the balance of interests lie between the legal profession and the consumer, in whose name the open market reforms are championed? “I don’t think it’s either-or between the consumer and the profession. I think we live in communities and there is such a thing as society. If all that matters is the lowest possible price, sometimes that can come at the cost to a variety of other matters within our communities. So we want to ensure that we get the best possible deal for our communities, not simply the cheapest possible price for every individual consumer, and that is where I think perhaps we might differ from some others.”

Labour in London, in other words, may have adopted an essentially Thatcherite agenda in maximising the freedom of choice for the individual consumer, but the Scottish Government says there is such a thing as society and there are times when its interests take precedence. “This idea that best value is always the lowest possible price seems to us to be inappropriate in some instances. That after all under Thatcherism got into some significant problems when you did so at a huge price to a variety of other institutions and indeed communities…. Sometimes you have to protect individuals from themselves and sometimes it’s the duty of us to take responsibility for all of our communities and not simply the rights of individuals.”

The bottom line

It is clear that MacAskill has ambitions for the profession of which he was a member until his election to Holyrood, whether for firms who wish to compete on the international stage or by developing Scotland as a centre for dispute resolution, in arbitration, mediation or otherwise. “Nobody is suggesting that Scottish firms will be able to compete on all levels with the firms in London or New York, but there is no reason why we cannot get niche markets as already we do have in other aspects of life in Scotland.”

He also recognises the possible opportunities from acting quickly and getting in ahead of the scheduled rollout of the England & Wales reforms. Does all this mean that if the Society came to him with proposals that he found generally acceptable, he would attempt to give priority to getting them into practice so the profession is geared up and able to move ahead?

“Absolutely. At the end of the day our view would be that if the profession can reach agreement as I believe it will, then we should just press on and seek to deliver it. If that timetable is ahead of south of the border then well and to the good. I think I would prefer that we concentrated on own game and did what is right for our society as opposed to perhaps being driven by what is happening south of the border, or indeed the timescale being driven by them. So our view is that if the Law Society of Scotland and the profession can reach an agreement then we as a government will seek to build upon that.”

No more quangos

The matter where the government has taken a firm position, that there should be no new regulatory bodies, raises its own issues. The Society’s view in its consultation paper is that it can regulate legal practices, however constituted, where solicitors have majority ownership and control, but “could not, in general, regulate entities that were owned and controlled by non-lawyers”. MacAskill however believes that between the Society and other bodies such as the Institute of Chartered Accountants in Scotland (ICAS), “in a small country it’s not beyond the wisdom of the brains of the profession and indeed other professions and individuals”.

“We take the view as a government that we’re trying to slim down and trim down in Scotland, we’ve got enough quangos, we’ve got two bodies there in the Law Society and ICAS that have served us well in a small country. How many bodies do we need to be regulating matters? So I think my view would be get on and sort it out. Between the bodies that we have it should be capable of being done.”

The future’s bright

“Get on and sort it out” is hardly the message the Society was used to hearing from ministers in the former Scottish Executive coalition. To have the pendulum swing quite so far in this direction is a heavy onus at the present time. The Cabinet Secretary however sees his role as a facilitating one, and intervener only as last resort. But he repeatedly affirms his faith in the strengths and values of the profession, and is clearly confident that the Society is moving it in the right direction.

“The outlook for the profession has changed immeasurably since I entered into it, but then it’s changed because of changes in Scottish society.

“I think the profession is a valuable part of Scotland; it has served us well for centuries, and I think the future for the Scottish legal profession is extremely bright. It’s our responsibility as a government to help the profession get the structures right and thereafter to help the profession in two ways, one to continue the excellent service at home and two to allow those who aspire to compete internationally to do so. Nobody owes Scotland a living: we have to compete in a global world and if we can sell legal services as well as we used to make ships or cars then so be it. We have as I say a great deal to build upon. Scotland’s reputation and its legal reputation has been merited and justified and there is an opportunity to build upon that.”

SEEKING TO REACH AGREEMENT

Criminal justice

Q – Are there further criminal justice measures you would like to see, beyond the major bills passed by the last parliament?

A – We take the view that perhaps there needs to be less legislation than there was before. I think that’s something that’s been greeted with some relief by the judiciary and indeed by the legal profession. But there will have to be changes and we do have proposals for a criminal justice bill this year. There are matters where we think action has to be taken given our priorities on alcohol, on tackling serious and organised crime. We are intent as a government in making sure that we have the legislative agenda capable of dealing with that, we’ve set a direction on where we’re going and that will be rolled out in due course.

The proposed Judiciary (Scotland) Bill

Q – The measure proposed by the last administration caused concern over possible implications for the independence of the judiciary, and the extensive non-judicial responsibilities of the Lord President. Is yours the same?

A – We are taking the general ethos of the bill forward but we have been speaking to all those with an interest in this, from the Lord President through to various other representatives of the legal profession. We believe that we’ve managed to reach a consensus and harmony… We want to make sure that this is something [the judiciary] are comfortable with. The whole purpose of this bill is actually to enhance and enshrine their right and their independence, which appears to us to be a good thing in a democracy.

    The separation of powers is important and is appropriate. We don’t want to do anything that they are concerned or troubled with, and we think that the discussions and changes we have made will meet with their approval…

    The Lord President is at the very head of the pyramid, of the judiciary in Scotland; we have to make sure that he is appropriately supported and resourced. It does appear to us that in the ethos of the separation of powers it should be him that should call the shots and not a government that could be partisan.

Non-lawyer rights of audience

Q – What is happening now? Some have accused you of dragging your feet on this.

A – We will look at each and every application as it comes. It appears that there have been very few; we did sign off one not that long ago and apart from that, the clamour is not there. And our view comes back to the fact that we actually think we’re remarkably well served by the courts and by the legal profession in Scotland.

The Scottish bar

Q – Do you believe the bar can survive the sort of changes the OFT would like to see?

A – I think it can. It won’t be without some difficulty, some turbulence, the same as the solicitors’ profession is having to go through some change because of matters which are not simply driven by legislation – they’re driven by changes in Scottish society. But I do believe that the expertise that the bar has, the skills it has on offer are something that we need as a society and indeed as an economy we should be able to utilise much more than we are doing at the present moment.

Access to legal services

Q – What are we likely to see in the future by way of service provision as between the legal profession or local authority funded services or other means of accessing advice?

A – These are matters that we have to monitor and evolve. Scottish society is changing; legal structures may also change. We have to wait for Lord Gill’s review but I think that it’s quite clear that some of our structures in Scotland are perhaps no longer appropriate for the 21st century… We’ve had some discussions and we’ve seen some of his reports and it seems to me that he’s on a general direction of travel that we have to ensure that areas of expertise are catered for in terms of our commercial court, our Justiciary court, and so on…

As a government we are a supporter of mediation, and ADR, and we want to head towards that. So I’m going to wait for Lord Gill coming back with his views and to some extent the legal aid situation depends on the nature of the court system that it’s there to support.

Summary criminal legal aid

Q – Were you surprised by the profession’s reaction to the SLAB consultation paper?

A – No, I think it’s fairly understandable. I think there’s a great deal of fear and that can be understandable. I think some of that fear is misplaced; I also think frankly that people have to recognise that some changes in the 21st century are non-negotiable. It appears to us that we do have to make sure that summary justice is swift, speedy and efficient, people have the right to refuse to accept fixed penalty notices or indeed offers made by the fiscal, but these matters are here to stay.

On the proposed changes from fixed fees to ABWOR:] We’ve said as an administration in discussions with SLAB and with the bar associations, frankly in some of these matters we’re constrained by the available funds. We’re happy to work out how some matters can be best dealt with and we will happily work with the profession to make sure that they are happy subject to the natural limits of the funds available. So I think that that can help to address matters, if we can work together, because as I say it comes back to the old maxim that any sheriff would have, if we can reach an agreement it’s much better than a decision being forced on unhappy parties.

The OFT response: proposal 1

“The OFT recommends that by the end of 2007, the [Scottish Government] should publish a statement which details its policy views on: how it considers legal services in Scotland should be regulated; how the restrictions outlined in the super-complaint should be lifted; and a timing commitment for these aims”.

Ground rules: MacAskill’s ABS address

At the Society’s ABS conference in September Mr MacAskill stressed that regulation needed to serve the interests of both the profession and the public; that markets should not be opened up unless access to justice and quality of service can be maintained; and that the best Scottish firms should be able to compete internationally, but local firms must be able to prosper – Journal, October, 12.