Bill opens debate on Society's dual role
7 Dec 09
Independence of profession prompts calls for separation
Fears have been expressed that the Legal Services (Scotland) Bill could compromise the independence of the legal profession in Scotland due to the possibility of increased Government intervention in the Law Society of Scotland.
At least one submission to the Scottish Parliament on the bill, on which oral evidence opens tomorrow, has called as a result for the representative role of the Society to be split off, to be given to a council of legal societies such as existed before the Society came into being in 1949.
The WS (Writers to the Signet) Society, an old-established legal society based in Edinburgh, argues that the bill does not go far enough to protect the public from Government interference.
In its evidence it states that the general effect of the bill is to tighten Government control of the regulatory function in relation to legal services. If, as is contemplated, both regulatory and representative functions sit within the same body, then whatever the intended safeguards, the inevitable effect will also be closer control of the regulatory function.
Separation of roles
"It is fundamentally untenable", it adds, "to have the representative function for solicitors within a body whose Council is indirectly controlled by the Government and whose responsibility it is to regulate the legal profession through a non-solicitor controlled committee. We question how the independence of the solicitors' profession will be protected under these arrangements."
It continues that the only guaranteed way to protect independence and preserve the integrity of the representative function is to separate the two completely, and proposes that the Society's role be restricted to the regulatory side. Solicitors should be "allowed to determine independently by whom and how they are represented", perhaps through a Joint Council of Representative Legal Societies.
In a separate development John McGovern, President of the Glasgow Bar Association, has called for a referendum of all solicitors on whether representation of the solicitors' profession should be independent of the Law Society of Scotland. In a magazine interview he accused the Society of failing to consult properly over the governance changes including the institution of a management board, with Council taking a more strategic and policymaking role.
Pointing to the split that now exists in England betwen the Law Society and the Solicitors Regulatory Authority, he said: "I am now of the view that if solicitors are to have any control over their profession in the future, there has to be a Solicitors' Representative Association, independent of the Law Society."
Modernisation programme
For the Law Society of Scotland, President Ian Smart said that while the Society supported the objectives of the bill, it was seeking amendments including those necessary to secure its independence.
“There must be a robust regulatory system in place to provide strong consumer protections and ensure that high standards are maintained among those delivering legal services. We are clear that independence of the legal profession from Government must be maintained. Increased competition will also demand that a level playing field is required for those in the legal services market."
On the Society's own governance, Mr Smart said the Society was "undergoing significant change to remain a modern and effective regulatory and representative body in a reformed market". It played a key role in representing the Scottish profession at Holyrood, Westminster and in Brussels, and its support work for solicitors included continuing professional development, arranging professional insurance, a helpline for practitioners, education and training policy, and complaints handling.
He addd: “We have recently carried out a major piece of research with the profession. Of the 1,880 respondents, 77% said that the Society should treat expressing the views of the profession at Holyrood on legislation, major bills and informing politicians as a high priority.
“Equally for respondents who had used our information services, professional practice assistance or CPD, 85% rated our services either very good or quite good. While we continue to strive to improve these services, there is clearly strong support for the Society to continue to provide a representative function in the future."
Comparing the position south of the border, he said: “Scotland is a distinct legal jurisdiction with a much smaller and more scattered population than England & Wales and this, among the many other considerations, must also be taken into account to avoid any unnecessary bureaucratic or financial burden."
On the call for a referendum, a Society spokeswoman responded: "We haven't been approached with any request for a referendum, but if a sufficient number of members place a requisition for a referendum to take place then the Society would present that to all 10,000 members."