Justice for Scotland

The Herald’s report (6 and 7 April) that almost one third of specialist family lawyers in Scotland no longer undertake civil legal aid cases is disturbing. In many developing countries, legal aid is so poorly financed that even capital cases are defended by the most inexperienced and often incompetent of practitioners, with life and death consequences.

As Scotland’s proud legal system looks down a regressive road, we have a simple choice. Do we believe in the equality of arms between opponents as a matter of justice? Or should the quality of representation be based upon your personal wealth and who you happen to be?

If the former, then we must review our legal aid system and Robert Brown MSP’s call for an inquiry is to be welcomed. If the latter, we should embrace ‘Tesco Law’, and its drivers of choice based upon individual wealth and status. But what kind of Scotland would we create?

Aberdeen solicitor, Catriona Walker's response to Fergus Ewing MSP (published in The Herald today):

The Lawyer newspaper reports that Scotland's 'big four law firms' will defect to England if they don't get their way over 'Tesco Law': the story is reproduced below.

"The Scottish legal market is facing crisis, with an industry-wide argument over the introduction of alternative business ­structures (ABSs) having the potential to drive the big four firms south of the ­border for good.

Dundas & Wilson, Mclay Murray & Spens, McGrigors and Shepherd & Wedderburn (S&W) are considering having their lawyers register with the Solicitors Regulation Authority (SRA) rather than the Scottish Law Society in reaction to the Scottish Law Agents Society’s (SLAS) attempt to ban the introduction of ABSs.

While the firms would not physically leave their ­Scottish headquarters, they would shift to a model whereby the bulk of their lawyers would be regulated by the SRA, with those in Scotland practising as registered foreign lawyers. This would mean the Law ­Society of Scotland (LSS) would have a vastly reduced revenue, with practising certificate fees going to the English Law Society, while the master insurance policy used by the entire profession in Scotland may be rendered unviable.

Dundas managing partner Alan Campbell said: “If we feel that we’re trading at a disadvantage to our competitors and they’re pan-UK, then we’d need to look at every option to make sure we’re on a level playing field. If that involves being regulated by the SRA, that’s something we’d do.

His counterparts at the other big four firms agree. McGrigors managing ­partner Richard Masters said: “It’s unpalatable and not a position we’d want to find ourselves in, but if [ABSs] take off and we’re in a non-competitive position we’d have to consider it.

The LSS has been successful in lobbying the Scottish government to alter some parts of the draft Legal ­Services Bill, but there are concerns that it would lose its negotiating position if it was forced to oppose ABSs, which is what the SLAS wants. As it is a government bill that has been some years in the making, it is likely that the Scottish government would press ahead with enacting it without the support of the sector.

The big commercial firms are a big part of the Scottish economy and the government doesn’t want to hamper them,” said LSS president Ian Smart.

S&W chief executive Patrick Andrews added: “The profession is in a perilous position because it’s difficult to see how it can maintain credibility in its dialogue with the politicians. The risk is that [the politicians] will steam on and do what they want and the profession is left watching.”

Controversial new legislation to introduce so-called Tesco law to Scotland presents a real threat to consumer protection, according to one of the country’s most high-profile lawyers.

The Minister for Community Safety, Fergus Ewing MSP, has claimed that the Legal Services (Scotland) Bill ('the bill') would not jeopardise a strong, independent, Scottish legal system (Letters, The Herald, 3 April 2010). However, that claim must be wrong as a matter of logic.

The bill would open up ownership of Scottish legal services to a worldwide market of investors and corporations, with consumer protection consisting of a risk-based licensing approach. Accordingly, notwithstanding how good the bill's proposed regulatory scheme claims to be, the fact it extends ownership and control of Scotland's legal services to a global market (of both legitimate and illegitimate interests) must mean the bill presents a real threat to Scottish consumer protection.

That risk is compounded by two incontrovertible facts. Firstly, any risk based regulatory system - no matter how good - accepts an element of harm and failure, and invariably detects serious consumer detriment after damage has been done. Just think of the current payment protection insurance scandal, or the various misselling of products scandals. Do we really want this approach for legal redress and justice within Scotland?

Second, businesses and investors are seriously high risk compared to legal firms. It's a cultural thing. Risk taking is associated with higher financial returns, and even if you go bust, insolvency law encourages you to rise from the ashes as a pheonix: whereas if solicitors take risks, they end up struck off, with no re-birth. And rightly so. So conceptionally, this approach to legal services is wrong in principle - and we're not even talking about how weak and unworkable the bill's regulatory scheme is.

Tellingly, neither European countries, nor the USA, are embracing the Scottish Government's deregulation of legal services model. Around the world, governments are tightening up their regulatory systems, so why are we acting so regressively in Scotland? Critics say solicitors have a 'monopoly' in Scotland, but it's a monopoly in the same way DVLA controls who can drive a car. And it's not true, as anyone can set up a body to provide representation in the courts under the Law Reform (Miscellenous Provisions) (Scotland) Act 1990.

The truth is the Scottish Government's bill is based upon a deregulation or 'free for all' model from 2004. This was three years before the financial services meltdown from deregulation; an approach which has since been discredited and abandoned around the world. Yet Fergus Ewing and his colleagues clutch onto this flawed model because England did so in 2007?

Mike

Glasgow Bar Association response to the Law Society of Scotland's 'Proposals for Change' consultation document: Section 1 of the Solicitors (Scotland) Act 1980 states the "objects" of the Law Society of Scotland (the "LSS"). It is the view of the Glasgow Bar Association (the "GBA") that there is an irreconcilable conflict contained within s.1 of the Solicitors (Scotland) Act 1980 (the "Act"). That section legislates that it shall be "the object" of the Law Society of Scotland, inter alia, to "promote" the "interests of the solicitors' profession in Scotland" as well as "promoting the interests of the public in relation to that profession". It is impossible for the promotion of both interests to be mutually consistent, beneficial or indeed legitimate.

The Royal Bank of Scotland were fined £28.6 million by the OFT yesterday for disclosing confidential customer information and breaching competition law. Last year Aon Limited were fined £5.25 million by the FSA for failing to take reasonable care to establish and maintain effective systems and controls to counter the risks of bribery and corruption.