Independence requires a "no" vote

For the second time in a month, our profession faces a choice in a referendum. Virtually split down the middle over the principles behind the Legal Services Bill, the profession now has to choose whether the “dual functions” of the Law Society of Scotland should be separated.

These functions, of representation and regulation, have existed since the Law Society was created under statute in 1949. Until that point, existing bodies, such as the WS Society and the Royal Faculty of Procurators of Glasgow, were responsible for the regulation and representation of their members.

The 1949 change of status for the profession was a noble one. The concept and idea that there should be a national Law Society which could more effectively regulate and represent the profession, in a unified manner, met with little objection and in subsequent decades established itself as one of this country’s most respected institutions.

The Solicitors (Scotland) Act 1980 stated quite specifically that the Law Society should have as its objects the “promotion of the solicitors’ profession in Scotland” as well as the “promotion of the public in relation to the profession”. This was a balancing act that often attracted criticism. It was, and is, a conflict that sits uneasily on the shoulders of the public and many solicitors.

Over the years this has resulted in a regulatory scheme (for solicitors) that now tips the balance in favour of the public. Section 93 of the Legal Services Bill will allow the public to have the chair in the Law Society’s regulatory committee, which will be split 50/50 between the profession and the public. In England, where the “dual functions” of the Law Society were split under the terms of the Legal Services Act 2007, the Solicitors’ Regulatory Authority has a two-thirds/one-third balance in favour of the profession.

Our Council, however, is also responsible for the representation of the profession. Under the terms of the Legal Services Bill, at least 20% of our representative Council will be appointed members of the public. There is no limit in the bill as to how high that percentage figure can reach. The public will have full voting and participatory rights in the representation of solicitors. The well founded arguments for the removal, or at least amendment, of s 92 of the Legal Services Bill (which allowed the Government to control the proportion of non-solicitor public members that would sit on Council, as well as setting the criteria for the appointment of those public members) were, despite the Law Society’s acquiescence for months, eventually recognised by the Government as not complying with article 11 of the ECHR.

Although s 92 will be substantially amended, the principle of Government, or public, interference with our Council still worries many. As Robert Pirrie, chief executive of the WS Society, recently explained, s 92 was symptomatic of what many perceive to be the steady encroachment of Government involvement in our profession. Whilst that involvement may be intended to be directed more at the regulatory function, it compromises independence if the representative function sits in the same body.

The truth of the matter is that there is not another democratic country in the world that has deregulated its legal market, and yet still has a solicitors’ governing body representing and regulating. The profession owes it to itself to at least consider separating the functions of the Law Society. Historically, its policy of compulsory membership was perfectly understandable: to ensure the highest of standards and thus offer enhanced public protection. However, when solicitors’ independence is undermined in the manner proposed in the Legal Services Bill, then the compulsory membership dynamic becomes a problem. Not least because European jurisprudence suggests that compulsory membership of professional bodies can only be compatible when those bodies remain independent.

If there is external ownership of law firms, as the Bill proposes, then surely it cannot be suggested that the profession will remain independent? Independent of whom? To some, there is no difficulty in the public being directly involved in representing solicitors. That being so, then they can choose that the Law Society continues to represent them. But for others, the compromises to our independence are too great to envisage and a choice should now be allowed.

The notion that the profession could not organise itself adequately, into independently constituted representative bodies working within a Joint National Council framework, is to do it a disservice. These bodies already have highly developed education, training and law reform infrastructures. For those that don’t, then the saving practitioners will make of around £3.5m per year in practising certificate fees could be reinvested, if so desired. When the Law Society says it wouldn’t work, it infers that the current arrangement does work. But there are not many solicitors who voted “no” in the last referendum who feel that the Law Society is working for them at present. We suspect many who voted “yes” are unhappy with how matters have been handled by the Law Society.

Any referendum is argued from a position of principle. Our contention is that, if you value the principle of an independent profession, then you will vote “no” in the current referendum running until next Tuesday, 25 May.