A bridge too far?

Earlier today, the Law Society of Scotland announced that a majority of local solicitors' faculties - including the two largest, the Edinburgh and Glasgow Bar Associations - had come out against the package of concessions offered by the Scottish Government in a bid to settle the dispute over summary criminal legal aid contributions.

Shortly afterwards, it announced its decision, taken with however much hesitation, that it believed the package should be "taken forward", which in effect means that it should be allowed to be given effect in statute, on the view that the only alternative was the original set of proposals, which caused all the protest actions.

It has to be assumed that the Society knew what it was doing. Not surprisingly, outrage has followed among those who wished to continue to hold out for better. All the old suspicions harboured by the legal aid section of the profession against the Society have come back with a vengeance. It did not take the gift of second sight to see that coming. We can therefore accept that the Society would not have acted as it did, had it not believed that that was in the best interests of its members as well as of the public.

We can also accept that the choice was an extremely painful one, which will have involved weighing the strength of feeling against the Government and its plans, against the likelihood that rejection would rebound on the protesters in the form of further fee cuts to fund a higher contribution threshold.

But was it the right decision? Although it was said to be taken with regard to the public interest as well as the profession's interest, the direct public interest appears essentially to be the income level at which contributions begin to be payable (the scale of contributions was not mentioned in the package), and on the Society's arguments that level is set to be increased in any event.

So it mainly comes down to the interest of the profession. The Society may well be right to say that solicitors stood to lose out if the package was rejected. Such considerations will no doubt have been in the minds of those who took part in the local faculty discussions, so that those who wished to continue their opposition should be taken to have done so with their eyes open.

Fears have also been expressed for solicitors who did not take an active part in the debates, and whether they would have been "walking into a minefield", in the President's words. That is a more difficult assumption to make, attempting to second guess their views.

While it is quite true that the Society has to represent all solicitors, it did carry out about as extensive a consultation as it could in the circumstances, and the outcome seems to have been a fairly clear majority, even if it means a decision to adopt the higher risk strategy. Is there anything to suggest that it was not representative of the relevant section of the profession as a whole? Probably it would have been uncomfortable for the Society to have to go back to Government and say the package negotiated could not after all be accepted. But as it is a membership organisation the Government should understand the message of a membership vote.

Without a strong competing public interest, should the voice of the members not have been reflected in the Society's position, in the wake of the unity forged through the Protest for Justice campaign? And on that simple but fundamental point, I venture to suggest that the decision taken was not the right one.