Skip to content
Law Society of Scotland
Search
Find a Solicitor
Contact us
About us
Sign in
Search
Find a Solicitor
Contact us
About us
Sign in
  • For members

    • For members

    • CPD & Training

    • Membership and fees

    • Rules and guidance

    • Regulation and compliance

    • Journal

    • Business support

    • Career growth

    • Member benefits

    • Professional support

    • Lawscot Wellbeing

    • Lawscot Sustainability

  • News and events

    • News and events

    • Law Society news

    • Blogs & opinions

    • CPD & Training

    • Events

  • Qualifying and education

    • Qualifying and education

    • Qualifying as a Scottish solicitor

    • Career support and advice

    • Our work with schools

    • Funding your education

    • Social mobility

  • Research and policy

    • Research and policy

    • Research

    • Influencing the law and policy

    • Equality and diversity

    • Our international work

    • Legal Services Review

    • Meet the Policy team

  • For the public

    • For the public

    • What solicitors can do for you

    • Making a complaint

    • Client protection

    • Find a Solicitor

    • Frequently asked questions

    • Your Scottish solicitor

  • About us

    • About us

    • Contact us

    • Who we are

    • Our strategy, reports and plans

    • Help and advice

    • Our standards

    • Work with us

    • Our logo and branding

    • Equality and diversity

  1. Home
  2. For members
  3. Journal Archive
  4. Issues
  5. June 2012
  6. Rights both ways: a contrary view

Rights both ways: a contrary view

An answer to the claim that it breaches the Human Rights Convention to require solicitors to belong to a body that represents as well as regulates
18th June 2012 | Iain Jamieson

In his article “Rights both ways” (Journal, May 2012, 16), John McGovern argues that the fact that Scottish solicitors are required by statute to be members of the Law Society of Scotland is contrary to article 11 of the European Convention on Human Rights, because the Society has both regulatory and representative functions. However, the Convention jurisprudence does not appear to support that argument, or to be as clear cut as John McGovern suggests.

It is the case that compulsory membership of certain associations, such as trade unions under closed shop agreements, may be regarded as incompatible with article 11 (Sorenson and Rasmussen v Denmark [2006] ECtHR 52562/99). In that case, the court held that the requirement, which was permitted under Danish law, for the applicants to join a particular trade union as a condition of being employed, had nothing to do with their ability to perform the specific jobs and struck at the very substance of the freedom of association by article 11. Both applicants objected to the political views of the trade union in question.

However, the court has noted: “that the Convention institutions have consistently held that the regulatory bodies of the liberal professions are not associations within the meaning of article 11 of the Convention... As a rule, the object of these bodies, established by legislation, is to regulate and promote [emphasis added] the professions while exercising important public law functions for the protection of the public. They cannot, therefore, be likened to private law associations or trade unions, but remain integrated within the structures of the state” (National Notary Chamber v Albania (2008) 47 EHRR Part 3 134).

In that case, the court held that the National Notary Chamber was not an association within the meaning of article 11, but “rather a public law institution, compulsory membership of which does not constitute an interference with the applicants’ freedom of association”. It is noticeable that the statutory functions of the National Notary Chamber included a requirement “to represent and defend the interests of district notary chambers before state authorities and other institutions”.

The Law Society of Scotland would appear to be in a similar position because its objects include both the regulation and the promotion of the interests of the solicitor profession in Scotland. Accordingly, contrary to the view of John McGovern, the Convention jurisprudence indicates that the Society would not be regarded as an association and therefore compulsory membership of it would not be regarded as an interference with the freedom of solicitors to form associations.

Iain Jamieson, solicitor

 

Share this article
Add To Favorites
https://lawware.co.uk/

In this issue

  • Prescription and title to moveable property
  • Gold-plated pension liabilities – what next for law firms?
  • Getting your fix
  • A trainee perspective on business development
  • Embedding ADR in the civil justice system
  • From death to life
  • Reading for pleasure
  • Appreciation: Alistair Hamilton
  • Who shares in the common grazings?
  • Opinion column: Mev Brown
  • Book reviews
  • Council profile
  • Why the dual role works
  • Rights both ways: a contrary view
  • President's column
  • Property reports relaunched
  • Equality in austerity
  • How old is too old?
  • Expanding the country file
  • The social side of practice
  • Judicial minefield
  • Program protection
  • Life bans just not sporting
  • Coleman revisited
  • Never mind the reasons
  • Another year in focus
  • Law reform roundup
  • Business checklist
  • Banks: POA campaign continues
  • Ask the experts
  • Ask Ash

Recent Issues

Dec 2023
Nov 2023
Oct 2023
Sept 2023
Search the archive

Additional

Law Society of Scotland
Atria One, 144 Morrison Street
Edinburgh
EH3 8EX
If you’re looking for a solicitor, visit FindaSolicitor.scot
T: +44(0) 131 226 7411
E: lawscot@lawscot.org.uk
About us
  • Contact us
  • Who we are
  • Strategy reports plans
  • Help and advice
  • Our standards
  • Work with us
Useful links
  • Find a Solicitor
  • Sign in
  • CPD & Training
  • Rules and guidance
  • Website terms and conditions
Law Society of Scotland | © 2025
Made by Gecko Agency Limited