An informed choice

Why the referendum?

In our evidence to the Justice Committee on the Legal Services (Scotland) Bill (given as individuals and not as representative of the membership of the WS Society), we expressed concern about how the Law Society of Scotland (LSS) would go about retaining its dual function of regulation and representation of solicitors once the bill came into force. We found it curious that an issue so fundamental, and controversial, in the equivalent reforms in England & Wales – the Legal Services Act 2007 actually compelled the separation of the two functions – was not being more openly debated in Scotland. The bill has been presented as a distinctive and proportionate Scottish solution to the demand for reform of the legal services market – a budget solution for a wee country – but this seems casually to overlook a point of principle so significant it has been entrenched south of the border.

Our objective was to provoke debate and facilitate the expression of all views. We think that is an essential and natural part of the process of arriving at a settled view of the solicitors’ profession as a whole, particularly on matters as fundamental and historic as those contained in the bill. It is not for us, or anyone else, to tell solicitors what to think. Solicitors are capable of weighing up the issues and making an informed choice.

This is why we, and some other members of the WS Society, added our signatures to the requisition for the dual function referendum. We did so, not in order to “get our way”, or to push any particular agenda, but in order that all solicitors could express their views on the question. We also felt that Scotland’s politicians had not been made fully aware of the issue. As it turns out, now that they have considered the issue, the politicians have declared, through the Justice Committee, that the dual function issue is a matter for solicitors themselves.

Independence and evolution of the regulatory function

Our major concern is the independence of the solicitors’ profession. In the early stages of discussion on the bill, much of the focus was on the impact on the dual function of s 92 of the original bill which gave the Scottish Government powers in relation to the LSS Council. As it happens, we, and other independent voices, had a point and the Scottish Government has since undertaken to withdraw s 92. A small victory for the representation of solicitors.

But s 92 was never the beginning and end of the matter. This is not just a matter of detailed provisions. We think there is a fundamental, underlying trend represented by the bill. We suggest that the introduction of ABS, and the associated regulatory regime, is the next step in the gradual evolution of the organisation and regulation of legal services in Scotland over hundreds of years. What started as self-regulation (broadly pre-1949), evolved into statutory self-regulation (post-1949), which, under the bill, becomes Government-influenced regulation, which may in time become full Government-directed regulation.

Thus, whilst in England & Wales a public regulator is the vehicle for Government control, in Scotland the answer is a “budget” model, using LSS as the vehicle. The move to a Government-directed regulator may yet follow in a few years should LSS not work as a delivery mechanism for Government policy.

We are not saying this evolution of the regulatory function is a bad thing per se. There is nothing wrong with the Government and the regulator being close – indeed it is to be expected in today’s world. The issue for solicitors is whether they are comfortable being represented, as well as regulated, by one and the same body in this new era.

Some would say that the conduct of the ABS consultation itself is a demonstration of how this new relationship will operate. The simple fact is that the LSS representative function did not work so as to engage solicitors in a debate at an early enough stage. That may be because solicitors were slow to react, but the LSS representative function did not compensate for this as it should have. Only the initiative of sections of the LSS membership brought about real debate and a discernible gap between LSS and Government policies. Our sense is that this process has resulted in feelings of disengagement and disenchantment.

Sooner or later – and we suggest now is a good time – solicitors ought to ask themselves if, in a new era of Government-influenced or controlled regulation, they wish the regulator, LSS, to continue to hold a compulsory monopoly on the representative function.

Diversity and choice

The dual function issue has arisen in the context of the ABS debate. Many of the advocates of ABS, both within and outside the solicitors’ profession, have urged solicitors to embrace change and new ways of doing things, think about re-engineering their businesses, recognise there are external forces requiring change, and to view competition and choice as healthy. Few would argue with these strictures in the abstract. What solicitors have to ask themselves, we suggest, is whether and to what extent the advice should also apply to how the representative function for solicitors is undertaken. The representative function is a service and one in which LSS currently holds an economic and functional monopoly. If a monopoly is unhealthy in the legal services market, it is worth asking whether this is also true in the market for representative services.

Some have argued that Scotland’s solicitors cannot afford representation separate from LSS. We do not believe this to be the case. First, many solicitors are already represented by bodies other than LSS. Secondly, through practising certificate fees, LSS has a monopoly of the collective budget of solicitors for representative services. If free to pay for representative functions elsewhere, solicitors may find they can reduce their costs and receive better value for money through other bodies.

The alternatives

The question has been raised as to what the alternative to LSS would be for the representation of solicitors. That is a valid question but one that, for us, comes after deciding whether the status quo on dual function remains tenable as a matter of principle. If a majority of solicitors do not think so, then a solution must be found. We also believe that, if solicitors want it, the solution is already partially there in the form of Scotland’s historic and independent bodies, such as the WS Society and others.

In our view it would be wrong, in considering how to vote in the referendum, to assume that only LSS has the resources and commitment to fulfill the representative role. It would also be wrong to assume that only LSS would command the attention of Government and politicians. Recent experience would suggest that the Scottish Parliament welcomes alternatives alongside LSS. Why would a National Council of the Law Societies of Scotland be any less influential than LSS alone?

We do not know anybody that would deny that LSS does good work on behalf of solicitors, or that LSS has the resources to do so. This is hardly surprising given the monopoly of financial resources put at the disposal of LSS by its membership. What is at issue is whether there should be more choice in how, and by whom, such resources are deployed in representing solicitors.

It is patently a myth to suggest, as some have, that only LSS enjoys a “committed professional staff backed up by a skilful use of the talents and goodwill of countless volunteer solicitors”. Major initiatives of LSS – e.g., relating to the education and training of solicitors – would flounder without the support and commitment of other organisations, such as the WS Society. The WS Society maintains an executive, administrative team and infrastructure. It has a council and committees made up of volunteer members. Other bodies have equivalents. There is much potential for developing alternative resources and facilities for representing solicitors.

There is a very plausible argument that the increasing diversity of interest in the solicitors’ profession would be better engaged and represented by a decentralised network of independent solicitors’ bodies, co-ordinated by a national council operating under an agreed constitutional framework. In the spirit of the times, this would be a coalition of geographical, business model and practice area interests. There would also be a common commitment to the public interest as a qualification for membership of the coalition. Such a council could even be incorporated within LSS itself or vice versa. Of course, this would have to be worked up in more detail. But to dismiss such alternatives out of hand, or as unworkable or fanciful, is, in our view, lacking in imagination.

Unity

Few would argue that the solicitors’ profession should remain united. Many are disappointed at how disunited the solicitors’ profession has looked to the outside world under the current arrangements. Could the presentation be any worse? A vote against LSS retaining a compulsory representative function for all solicitors is not necessarily a vote for disunity. It may be a vote for a different kind of unity, built on independence and professional values. It may even, as has been suggested, be a protest vote for reform of LSS.

The point is: your vote counts so we urge you to use it.