In search of a constitution

Today sees the first meeting between the Law Society of Scotland and representatives of the Scottish Law Agents Society and the Royal Faculty of Procurators in Glasgow, to explore whether the differences between the Society and the other two bodies over the proposed new constitution can be overcome ahead of the special general meeting scheduled for May.

The meeting takes place without Law Society President Jamie Millar, who has a speaking engagement at the Northern Ireland Law Society conference, but under the shadow of the President’s admission yesterday that he gave wrong advice to Glasgow constituents in a letter ahead of last month’s AGM over one of the reasons why the new scheme was needed.

It is not surprising, given the recent points of contention between sections of the profession and the Society, that there have been calls for the President to step down over the issue. The President can speak for himself; I simply pose the question here, should it be a resignation issue if an honest mistake is owned up to?

To say it should would be applying a higher standard than is adopted in Parliament, for example. As I understand the position, if a minister has in error misled the House, it is expected that they will come back to the chamber at the earliest opportunity to correct the position and apologise. It is deliberate misleading that is a resignation matter.

Be that as it may, counsel’s opinion which was released yesterday is of interest not only for confirming the view that the Society already has power to set up the Regulatory Committee required by the Legal Services (Scotland) Act 2010, but for highlighting that the only matter where the present constitution does fall short is in the appointment of non-lawyers as full members of Council.

One side of that coin is that it could be argued that amendment of the present scheme to take account of that point is all that is needed. However it is widely accepted that it is rather in need of an overhaul, and it would be better if possible if the two sides in their discussions can narrow down the areas of difference on the new model.

That applies with more force, I think, as the other side of that coin is that some of the points made against the new version could presumably be made equally against the arrangements now in force. In particular it has been claimed as an objection to the new model that the Society will be in a position of conflict of interest as between solicitors and other legal service providers if it becomes a regulator of both, especially in relation to the Master Policy and Guarantee Fund.

In what way would that not apply to a Regulatory Committee set up under the present constitution? Apart from appearing to raise again the whole ABS debate, some of the arguments surrounding legal services providers (or ABSs) appear to assume that they are some kind of alien species having little in common with solicitors’ firms as they now exist. But they are as likely, if not more so, to constitute a Turcan Connell or a Harper Macleod or an HBJ Gateley Wareing who have decided to make their chief executive or other senior manager(s) a full partner or member of the firm, which so far as anyone else is concerned will carry on exactly as before. And while there may well be those at the other end of the spectrum with more diverse types of business and ownership, we are really looking at a continuum of variations along that spectrum rather than a “them and us” situation, and therefore one where there is more of a community than a conflict of interest.

The greater care will be needed over those legal services providers who are regulated by others but who have access to the Guarantee Fund; and remember that under the Act any regulator can opt into it, whatever the Society’s or its members’ wishes. (Though since it is a fund of last resort, anything covered by (compulsory) professional indemnity insurance – where there is no equivalent right of access to the Master Policy – will become a claim under that insurance.)

It would be much more against the profession’s interests to bring about a situation where leading Scottish legal firms decided, or felt obliged, to take their regulatory business, and their professional indemnity premiums, elsewhere.

Hopefully those who are involved in the talks will be able to accept the legislation as it now is, and focus on what will make for effective and accountable regulation within that framework.