No standing still

There will always be a tension between the responsibilities of a regulator and a representative body: a tension that reminds us at every stage in a process of change to look at who we are and what we are trying to achieve.

Historically, the professions were a combination of regulator and representative body. Some have been redefined or recast to separate those roles. That is the easy way. It is more difficult to recognise that the tension makes the profession, that it encourages choices not based on self-interest. And it is to the credit of the state if it also recognises that a profession can meet that challenge.

This Society is currently designing a new approach to meet the challenges of alternative business structures and also the fact that the constitution and governance arrangements for the profession date back 60 years. While I have no doubt that our predecessors would appreciate that today’s Scottish legal profession continues to uphold the values and principles of those who founded the Society in 1949, I doubt very much whether they would readily recognise the nature of legal practice today. The profession has been changing and adapting over the past half century and, despite the current economic setbacks, I do not doubt that it will continue to develop and succeed.

The decision is ours But if the Society is to represent its members properly, fulfil its regulatory functions properly and be able to act at all times in the public interest, it must be content that its own governance arrangements are appropriate.

Those arrangements operate on numerous levels.

There is broad agreement that such arrangements should revolve around the Council as the decision-making body, representative of the whole profession and able to take decisions based on the best possible assessment of information and options. But it cannot stop there. And so we have already begun the process of change, to ensure better tracking and co-ordination of issues within the Council structures. These changes bring transparency and allow us to move away from patronage. They will also help Council members to identify and address important issues.

Separately, we have to ensure that the Council is representative of the profession in terms of geography, practice area, diversity and so on. But it is for the profession, rather than government or others, to continue to lead the way in deciding what shape any changes should take, recognising that we have a responsibility to the next generation of solicitors and the public interest as well as to ourselves.

Improvement means change

But if the Society is truly to represent its members and carry out its public functions, we have also to build relationships and revitalise or create new structures. Linkages have to be developed across the profession, between faculties, sectoral groups and the centre. And this cannot be a top-down operation: it will only work if the profession is involved at a local level and supports the work of the Council.

I have written before about changes at the Society, some of which we have invited. The vote to support a move towards ABS at the Society’s AGM last year was a precursor to publication of the Scottish Government’s consultation paper, Wider choice and better protection. The consultation and legislative process will no doubt present challenges, including the need to look at how we organise ourselves, but it also offers a positive opportunity to move forward.

The Council will consider these and other issues at a special conference session in March. In May, we hope to engage in further discussions at the Law in Scotland conference and bring proposals to the AGM. But we are involved in a long-term process, which will continue into late 2009.

Is it worth it? Can we not simply stay as we are? Some change we look for and some we do not. No one knows for sure that change will bring improvement. But it is certain that improvement will only come about if we are prepared to change.