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Royal Faculty still against new Society constitution

6 March 2012

No case has yet been made out to amend or replace the current constitution of the Law Society of Scotland, according to the Council of the Royal Faculty of Procurators in Glasgow.

In its submission on the latest draft constitution now out for comment, the Royal Faculty concludes that the effects of establishing the Society's Regulatory Committee have not yet been fully appreciated, and that constitutional reform "(if such be necessary)" should not be implemented before the impact of that committee, and its interaction with the Society's Council, has been properly assessed.

It adds that the removal of certain key elements of the current constitution (for example, relating to the rules and procedures for the election of Council members) erodes, rather than strengthens, members’ rights, and proposes that remote attendance and voting at general meetings of the Society should be introduced only when the technologies involved can be proven to be secure, robust and cost-effective.

Among its observations the Royal Faculty states that "To adopt an entirely new constitution in terms of the February 2012 re-drafted scheme, rather than seek to further amend the existing tried and tested constitution (that is, if any such further amendment is required, or even desirable), is to run the grave risk that unforeseen consequences and conflicts could emerge."

In particular, it adds, the suggested introduction of quasi-regulatory "protocols" which may bring the Council into direct conflict with the Regulatory Committee should be avoided.

The Royal Faculty further claims that "No case has yet been made to demonstrate in what manner the current constitution fails to protect members’ rights or inhibits members’ participation in the business of the Society nor to demonstrate in what manner the re-drafted scheme will increase accountability and transparency or improve the corporate governance of the Society."

Specific areas of concern, it says, include that the board rather than Council appears to be intended as the principal executive body of the Society; rules and procedures for election of Council members have been removed from the constitution although the Solicitiors (Scotland) Act 1980 requires provision for them in the constitution; and the new draft fails properly to reflect the permitted delegation of functions under s 3A of the Act, and in one respect is ultra vires.

It concludes by calling on the Society's Council to reconsider the re-drafted scheme.

Click here to access the full submission.
 

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