The bill in retrospect

So is the arguing all over now with the Legal Services (Scotland) Bill? Perhaps not quite...

Barring last minute objections from the law officers (not a foregone conclusion, but don't hold your breath), the most contentious measure regulating the legal profession since, well, the last measure to regulate the legal profession, will receive royal assent in a few weeks' time and become law. Wednesday's stage 3 debate (click here for the main points) did some further polishing but left intact the statutory version of the 51-49% regulated professional-external owner permitted split that represents the nearest thing the profession has come to a compromise on the subject.

The anti-ABS section holds its collective head high in the knowledge that it stood squarely on its view of the effect of the fundamental professional principle of independence, which many individuals in its ranks have campaigned tirelessly to promote. It can also claim fairly to have caused the retreat from the possibility of 100% externally owned practices envisaged in the original bill, and in the Law Society of Scotland's policy as adopted at the 2008 AGM.

However I don't buy the further view, since put forward by Michael Sheridan of the Scottish Law Agents Society, that theirs was a campaign in the face of greatly superior resources, and perhaps by implication unsuccessful for that reason. I would argue that it was the bill's opponents who were making all the running in the early part of the year, and I believe they would have won the crucial votes in the profession at least (the Parliament is another matter) if the compromise ultimately adopted had not been put forward. It was only when that emerged that there was on offer something that looked capable of attracting a pro-ABS majority.

Far from waging a counter-campaign, the Society itself was strangely muted, no doubt recognising that while it had thought it was taking forward the wishes of the membership, there was a real possibility of those wishes being turned on their head in general meeting. The likelihood that such an outcome would also have split the profession, quite possibility to the ultimate disadvantage of the same high street firms as formed most of the opposition, no doubt added to its discomfort. Whatever the reason, it left the Journal strangely exposed in trying to achieve a balanced debate – though I believe we did that and I was greatly heartened both by the quality of contributions and the number of hits on the Forum section of this website when we set that up for the purpose.

The bill's opponents have also consistently failed to see the bigger picture. This was not just about Scotland's big firms wanting to be able to operate in the same way as their English competitors potentially can under the 2007 Act that comes fully into force next year. It was also about the Scottish Government being handed a ticking bomb by the Office of Fair Trading, which had taken the view that the current rules could no longer be justified, and giving the professional bodies the chance to come up with a viable alternative. Issues of the Journal from summer 2007 onwards chart all this and make it clear what options the Society was considering during the extensive consultations that led to the proposals put to the 2008 AGM.

The profession wields considerable influence at Holyrood but it is a long shot to expect it to hold out against the collective weight of the consumer lobby. It didn't work with the bill to set up the Complaints Commission, and would it have had any better chance by setting up the barricades against this bill? Remember that the consumer lobby blueprint was not just 100% external ownership but majority non-lawyer control of the Society as well, and another regulatory supervisor on top as with the English Act, probably all paid for by the profession. Seen in that light, the strategy of trying to shape our own solution this time has worked not too badly.

It may be true that the Scottish bill would never have been introduced had it not been for the reforms down south. To an extent that misses the point. In response to the argument that the Scottish bill may be found incompatible with European law, Alan Campbell of Dundas & Wilson said at last month's SGM that if that was so, then so was the English Act, but he would be fine with them both being stopped.

But unless and until that happens, we appear against the odds to have succeeded in arriving at something that can be described as a home grown Scottish solution. I suggest it is in our interests, individually and collectively, to try and make it work.

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