Editors Blog
Exercising choice
9 May 10
What does the "no" lobby in the referendum seek to achieve?
So the requisitioned referendum on the future role of the Law Society of Scotland is about to get underway at last, and we have the statements from the two sides of the argument. (For ease of reference, the question is: 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?)
One thing that surprised me somewhat about the "no" case (the requisitionists') was their emphasis on choice, i.e. that instead of having the Society as their official representative body, solicitors will select their own body, whether from the present ranks of membership organisations or some newly created entity.
Why surprise? Well, the very fact that such organisations exist at present suggests that solicitors can and do choose to belong to bodies other than the Society, at least in part to fulfil a representative role. Granted, they have no choice but to belong to the Society in addition; but as regards representative effectiveness, what would change?
Would the Scottish Law Agents Society, or the Glasgow Bar Association, or the WS or SSC Societies, be able to claim any more influence with Government than they do at present, if the Society was out of the picture in this respect? Have SLAS, for example, not already had direct access to the minister responsible for the Legal Services (Scotland) Bill? How would their voice be stronger in the absence of the Society, if they were still a voluntary organisation, as they would necessarily be in that scenario?
It is also puzzling that the requisitionists suggest that solicitors could opt to have the Society continue to represent as well as regulate them, after arguing that it is not possible for it to do both. The greater the number who chose to do so, the harder it would become to detect any practical difference from the present situation.
They also refer with approval to the changed position in England & Wales, where the Law Society is now the representative body while the Solicitors Regulatory Authority polices the profession – yet that is a very different position to that which they propose for Scotland. On their own argument, the profession is now so diverse that one body cannot effectively fulfil this role.
I refrain from commenting on whether the Society can or does effectively represent members' views at present – let those in practice have their say on that. Conceptually, however, I am unconvinced that the "no" lobby have chosen firm ground on which to base their case. Can anyone explain otherwise?