Pearls of wisdom

Profile of the Society's Law Reform Department and Committee, through discussion with Director Michael Clancy and Convener Morag Driscoll

The Journal, March 2004, page 48

If the Professional Practice Department of the Law Society of Scotland, featured last month, is the fount of wisdom in dealing with issues arising from client transactions, the Law Reform Department and its committee network can claim a collective breadth of knowledge of the law that is probably unrivalled in any body in Scotland.

One might be tempted to regard law reform as something of an add-on to the Society’s functions of regulating the profession and dealing with client concerns. But Michael Clancy sees the promotion of reform as directly reflecting the duty in section 1 of the Solicitors (Scotland) Act to promote the interests of the profession and the interests of the public in relation to the profession. “Making good law, getting law into the best, most comprehensible, most usable fashion is a good thing not only for the law as an ideal but for the legal system and the people who use it, whether they be clients or professionals. As citizens we all live under the law and it’s important to try to get the law that rules us understandable and usable. I think that’s one of the things we should try to promote.”

The art of the possible

The committee’s terms of reference represent a formidable commitment. First comes promoting the Society as a leading voice on law reform and overseeing all its law reform work. Next is promoting “the effective operation of law, legal institutions and equal access to justice, both domestically and internationally”, and then the specifics of responding to proposals from the Government, the Scottish Executive, the European Commission, the Parliaments and the Scottish Law Commission, “both on matters of principle and technical detail”. That covers the first four of a nine point agenda.

Fortunately, neither the department (which also comprises deputy directors Anne Keenan and Sarah Fleming, team members Stuart Drummond, Moira Shearer and Susan Angus, and support staff Moira Goll, Carol Nightingale, Libby Boid and Margaret McGregor) nor the nine-member committee has to take on these tasks single handed. There are no fewer than 23 subcommittees whose remits, to take a few examples, include banking law, e-commerce, immigration and asylum, privacy law, rural affairs and tax law. There are also five committees outwith the department, Civil Procedure, Criminal Law, Conveyancing, Human Rights and Legal Aid, with which it works to ensure a connected law reform effort. Ad hoc working parties may be formed to scrutinise individual bills in progress.

The subcommittees largely consist of specialists, independent of the main committee. But each is now shadowed by a committee member, under what is called the “buddy” system, to help identify points on which proposals relating to one subject also impact on another – and require input from another specialist group. As Morag explains, “It means that when we put in something on family law I have not only the wealth of knowledge of my committee but from pensions law people, from succession people, even sometimes insurance – if there’s a proposal made to extend rights they’re also looking from a view I would not normally have. So the Society can make proposals which have been informed by a much wider group of people than you might expect, and that allows us to interact more effectively with the Executive, the Parliaments and other bodies such as the Scottish Law Commission.”

London still calling

The work on each piece of legislation can be considerable. Take for example the Gender Recognition Bill (rights of transsexuals) now in progress at Westminster, as Michael describes: “There was a consultation to which we responded, a draft bill to which we responded, and when the actual measure was introduced in the House of Lords, it was examined again, we prepared amendments which peers proposed and were debated; one was accepted by the Government, others fully debated and explanations given of the stance the Government had taken.”

“There is still an awful lot of legislation affecting Scotland going through Westminster”, he continues. “In the first Scottish Parliament there were 46 Sewel motions, but this year will break all records with issues such as gender recognition, civil partnerships, Supreme Court changes, other constitutional aspects such as reform of the House of Lords, issues like child trust funds, the abolition of the Crown exemption in planning law, asylum and immigration matters. All these show a vast agenda of legislation which impacts in Scotland but which is being legislated in Westminster, and it behoves us to have a presence and to make that presence felt.”

Cultivating good relations with ministers and officials, both in Edinburgh and London, plays a large part in that exercise. Then there are the many other bodies such as the Scottish Consumer Council, Women’s Aid or the Scottish Legal Aid Board with whom the Society may find itself on working parties. “That doesn’t mean to say we’ll always agree”, Michael points out. “But if we disagree we’ll disagree in a mutually respectful way which allows us all to acknowledge that we have different perspectives on the operation of the law and its interpretation.”

The Society of course eschews any political attitude. “I cannot emphasise enough how apolitically we approach this”, Michael is at pains to state. “We don’t simply brief one party or another; we brief all parties. We open channels of communication with government on bills or consultations, to Ministers both at UK and Scottish Executive level and backbench members of all parties in both Parliaments. We also have a lot of contact with civil servants in Whitehall departments and in the Executive: we try our best to make sure that everyone knows where we are coming from, that there are no surprises, and it’s one of the things which I think is singular to the way in which we approach these things that we are non-partisan.”

A two way relationship

The team receive a steady stream of enquiries and comments from the profession who have discovered a problem, for example with a particular statute, or a practice in a court area, or the wording of a standard security. “It’s very helpful if the Society feels that there’s a problem with something, if people have been writing in and the Society can say, well we’ve had a lot of letters from practitioners on the ground, this is the problem, there are many encountering similar problems”, Morag explains. “It’s quite useful for somebody like Michael who’s speaking to the officials or the politicians to be able to give more than just the opinion of the committees.” Positive feedback is equally welcome, where changes prove to be useful.

Both agree that the richness of experience on the committees is an astonishingly valuable resource for the profession. “We couldn’t pay for these things that are provided but we certainly have everything from professors of areas of law to practitioners in niche areas who know more about a particular subject than almost anybody else, offering to donate their time”, Morag emphasises. “There’s a great generosity of spirit from the people who’re doing this because they’re certainly not doing it for the kudos… When I sit on some of these committees and hear some expert on pensions or IP law it adds a completely different dimension to my experience as a practitioner in Scotland.”

“These are real meat and drink questions which come up at these meetings”, Michael adds. “One of the joys of working with the committee, any committee here, is the wealth of experience, talent, devotion, and the sense of public duty.”

“It’s not only solicitors because we have members from all walks of life. We have actuaries, we have health care professionals, psychologists, experts on mental health and disability, as well as people from the Executive, and so we are exposed to other ideas and other influences.”

The wider agenda

Does the Committee have much chance to set wider goals of its own to aim for?
“That’s a big issue and one of the things which we do have in mind is to have a meeting of the Law Reform Committee in the summer where there is nothing on the agenda other than the strategic view. One of the difficulties is that we are bound to be reactive. The number of bodies producing proposals for change that are likely to be successful is quite substantial and we have limited resources… That means there has to be a degree of prioritisation and frequently getting to the point where we can generate the momentum for initiation of change requires a balancing act between meeting the demands which are calls upon us and what we want to do, and one of the things which we have to think about is how best to balance these two competing objectives.”
 “It’s exciting and it’s a privilege to be involved in the law making process”, Michael concludes. We hope we do that to good effect and in the interests of justice for the better advantage of the people of Scotland.”