Referendum 2: requisitionists' case for voting no

Should the Law Society of Scotland as statutory regulator continue to be responsible for promotion of the interests of, and the representation of, solicitors in Scotland?

The following statement will be sent out by the Electoral Reform Society with the ballot.

The status quo is not an option! Not our words but the words of others.

In “The Times” newspaper on 29 January 2010, Lorna Jack, the Chief Executive of the Law Society of Scotland commented that the dual functions of the Law Society of Scotland, allowing it to both regulate and represent solicitors, had “always been discussed” and “brought a tension”. Today, that tension has never been greater.

When the Law Society of Scotland was formed in 1949, 61 years ago, the legal profession was very different to what it is today. The Law Society needs to change, just as the profession has been required to change, in order to meet the demands of today’s members and, indeed, the public.

Since the publication of the Legal Services (Scotland) Bill, on 1 October 2009, it has become apparent that the profession is split. Those solicitors with different commercial and business interests and with very different practices are at odds over the principles behind the bill. It is a debate that has stimulated the profession as no other. The Law Society insists that it can still continue to represent the multi-national oil and gas commercial solicitor, as well as it can represent the legal aid solicitor earning £42.20 per hour. The recent debate over the Legal Services Bill has shown that it cannot and most solicitors recognise this fact.

The Legal Services Act 2007 (England & Wales) ended the “dual functions” of the Law Society of England & Wales. It was clear in England & Wales that opening the legal services market to non-legally qualified “legal service providers” meant that the Law Society could no longer insist upon its “dual function”, because its independence was compromised. Now, in England & Wales, the Law Society does not carry out the dual representative and regulatory functions.

Indeed, there is no other democratic country in the world where the solicitors’ governing body represents and regulates solicitors and represents and regulates non-solicitor “legal service providers”. But that is what the Law Society proposes for Scotland. For many reasons this would lead to a detriment to the public.

If there is not a split in the functions, then the independence of the profession will end. The Law Society is proposing, for a profession of 10,000 solicitors, a Council of 60. Our country has a population of 5,000,000 but only 59 MPs at Westminster. Why does our Law Society Council need to be so big? After the Legal Services Bill becomes law, non-solicitors (with full voting and participatory rights) will make up at least 20% of Council, with no statutory safeguard preventing that figure from increasing. Therefore, non-solicitors will be representing our interests. Shouldn’t it be the other way around?

At a time when individual solicitors are told that they must adapt and welcome the increased competition (and consumer choice) that the Legal Services Bill provides, the Law Society jealously guards its compulsory membership and thus restricts the CHOICE of the members of the profession to be represented by whichever body or bodies, if any, that they CHOOSE. If you don’t want the Law Society to represent you (or you believe it is not doing so effectively), your only option is to give up being a solicitor – not much of a CHOICE!

The CHOICE should be as free for solicitors as it is for the public. CHOOSE, or indeed form, your own representative body, if you feel the need. CHOOSE your local faculty, bar association or solicitors’ society. Indeed, CHOOSE the Law Society if that is what you want! Other representative bodies, entirely constituted by and for solicitors, can then unite under a Joint National Council, where a common interest exists, and collectively state a position, in which each will still represent their members, entirely independent of Government or non-solicitor influence. The Law Society could then continue with its regulatory functions but could still represent those who make that CHOICE.

According to its last annual report, 40% of Law Society revenue is spent on “representative functions”. That will be 40% saved on the practising certificate fee if you CHOOSE that the Law Society is not to be your representative body. The recent votes on ABS suggest that a large part of the profession think that, on this matter at least, the direction of representation was not what they wanted, but they have no CHOICE. As they do in all other areas of life, solicitors should have the freedom to CHOOSE the representation they feel best suits their individual or their practice’s needs.

For all these reasons, we would encourage you to Vote for FREEDOM. Vote for CHOICE

Vote “ NO” in the Referendum.

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