Justice for Scotland

In “The Times” newspaper on 28th 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 had a tension”. Today, that tension has never been greater.

When The Law Society of Scotland was formed in 1949, sixty one years ago, the legal profession was very different to that which it is today and the Law Society needs to change, as the profession has required to change, to meet the demands of today’s members and the public.

Since the publication of the Legal Services (Scotland) Bill, on 1st 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 recognize this fact.

The Legal Services Act 2007 (England and Wales) ended the “dual functions” of the Law Society of England and Wales. It was clear in England and 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, 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 five million and 59 MPs at Westminster. Why does our Law Society Council need to be so big? After the Legal Services Bill, non-solicitors (with full voting and participatory rights) will make up at least 20% of Council, without a 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 statutorily 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 the Law Society if that is what you want! Those 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 and could represent those who make that CHOICE.