Breaking up the Law Society of Scotland

I have read with considerable concern articles in the Herald that the Glasgow Bar Association wants to break up the Law Society of Scotland.

I have been in practice over 30 years. I can't admit to being a luvvie of the Society and have often railed against it for all sorts of reasons, including that it has historically appeared sometimes to have been Edinburgh-centric.

But I would be greatly concerned if that is all the GBA is concerned about – a parochial concern of protecting the vested interest of Glasgow solicitors suffering from the axing of legal aid fees in the Glasgow stipendiary magistrates’ court.

Whilst I appreciate that could have a huge impact on some solicitors at the criminal bar in Glasgow, I do not accept that it or the circumstances giving rise to it could in any way justify breaking up the Society.

I would hope that any desire of the GBA's to seek the Society's demise would be driven by wider and deeper considerations – in which case I very strongly urge the GBA to hold back and think this right through before they do anything. If they don't they could be letting a genie of a particularly nasty kind out of the bottle.

The world has certainly changed greatly since the Society came into being in 1949 – human rights allowing freedom of association, competition in all areas of commercial life, and of course consumerism and all the rights that go with that.
The Society may be inherently conflicted as it is both regulator of the legal profession and its representative – it was even more conflicted until consumer service complaints were taken over by the Scottish Legal Complaints Commission.

One major feature of commercial life now is the burgeoning of regulation and the professional regulators whose job it is to interpret and enforce the regulations that cover a particular industry.

If GBA is successful in any attempt to break up the Law Society of Scotland, what does it propose to take its place? If it is left to the politicians in Holyrood they will simply legislate to impose their own style of regulator on us. There is a grave danger, in my view, that we could end up with a regulator like the Financial Services Authority.

And if solicitors want to know what the FSA is like as regulators, just ask the mortgage brokers and IFAs you do business with – they will soon tell you. The regulatory regime devised and operated by FSA seems to pay scant regard to the human rights of those it regulates, let alone the concept of natural justice. I have given up trying to explain the FSA's regime to solicitors who are used to the quaint notions of the presumption of innocence, the credibility of witnesses and the balance of probabilities – these concepts are conspicuous by their absence in the world of FSA regulation.

Why am I worried that we get an FSA-style regulator? Well, because the politicians sought to foist on us a complaints ombudsman along the same lines as the Financial Ombudsman Service, which deals with complaints against IFAs. It can award compensation up to £100,000 and the IFA has no right of appeal whatsoever.

And the only reason the SLCC is limited to compensation awards of £20,000 and solicitors have a right of appeal against its decisions is because the Society wrested those concessions very unwillingly from the politicians.

I do not believe that a Law Society with only a representative function, or a society with other than a national franchise, could have achieved that whilst retaining the confidence and securing the agreement of the politicians.

So, GBA, before you go a step further please think through what will replace the Law Society of Scotland before you set about destroying it.

You may not like the Society, and it has its faults, but what may follow could be infinitely worse.