Time to tackle shark practices of debt companies and their Scottish solicitors says GLC

Govan Law Centre (GLC) is concerned that the OFT's Debt Collection Guidance is being routinely ignored in Scotland not only by UK debt purchasing companies but more worryingly by certain firms of Scottish solicitors who undertake debt collection as one of the primary activities of business. 

Besides causing unnecessary human misery, unfair, oppressive, and disproportionate business practices are resulting in vulnerable Scottish homeowners being threatened with homelessness as creditors use inhibitions for tiny debts. The practice results in creditors being able to scupper Scottish Government mortgage to rent transactions, where families facing homelessness can have their house purchased by a social landlord. 

Although, the OFT expects solicitors firms who undertake debt collection work as one of their primary activities of business to obtain a 'Category F' consumer credit licence, most Scottish debt collection firms of solicitors operate under the Law Society of Scotland's 'group consumer credit licence'.  GLC believes this results in a lack of effective regulation of Scottish law firms undertaking debt collection work because the Law Society of Scotland does not specifically regulate such work, and therefore, this work appears to be largely unregulated in practice.

GLC's Mike Dailly said:

"To give an illustration of the problem, we have a case in Glasgow where it has taken us many months to defend a repossession action and broker a complex mortgage to rent transaction, which is now being thwarted by a Scottish firm of solicitors acting on behalf of an English debt purchasing company for a debt of £810.  Last month the company was prepared to accept repayment at £5 per week, but since obtaining an inhibition it wants all of the money as a lump sum".

"Our client is on incapacity benefit and has offered £100 plus £5 per week but the company's solicitors advise their client says no. We believe this Scottish law firm and company have engaged in aggressive, oppressive, and unfair practices contrary to the OFT's expected standards for consumer debt recovery, and contrary to section 25 of the 1974 Consumer Credit Act".

"Govan Law Centre is considering all legal remedies available to our clients against such companies and their Scottish solicitors - including where appropriate 'naming and shaming' - however, it is quite clear there is a major regulatory role here for the Law Society of Scotland which needs to be addressed, a need for the OFT to intervene, and ultimately a pressing need for the Scottish Government to review the ability of their own Mortgage to Rent scheme to be de-railed by unsecured creditors with relatively tiny debts through the inappropriate use of inhibitions".

A mortal blow to members' rights: proposed changes to Law Society of Scotland's constitution

The draft constitution which the Council of the Law Society of Scotland (LSS) will propose at its AGM next month will irretrievably damage the rights of the 10,500 members of the Law Society.  Today, GLC publishes an article by Glasgow solicitor, and LSS Council member, Walter Semple which explains how the proposed new constitution diminishes the rights of ordinary members, and exposes Scottish solicitors to the unnecessary financial risks of 'Tesco law firms', know as 'licensed legal service providers' (LPs) under the Legal Services (Scotland) Act 2010.

Glasgow Council member and GLC's Principal Solicitor, Mike Dailly said: "The Law Society is a members-based organisation, paid for by 10,500 members across Scotland, but a small elite want to severely restrict the ability of members to influence their own organisation. That's undemocratic and unnecessary.  The Society should be fully open, transparent and accountable to its members.  It isn't and the constitution proposed by the Council isn't fit for purpose".

"Walter Semple is correct to highlight the irreconcilable conflict in the Society both regulating 'Tesco law' businesses and supposedly promoting the interests of solicitors.  These bodies are not Scottish solicitors, yet the proposed constitution would see Scottish solicitors underwriting their financial risks. That is not in the interests of the Scottish legal profession, so why are we doing this?"

The proposed new constitution would require any members motion to influence the policy of the Society to require a 2/3rds majority, unless it had the support of Council.  Further, LPs would be covered by the Society's Guarantee Fund (a fund built up by a levy on partners and principals in Scottish legal firms) and the Society's Master Policy.

What can you do?  If you are a solicitor you can grant a proxy so that your vote can be cast against the proposed new constitution; OPEN PROXY FORM (this should be returned to the Registrar, David Cullen, of the Law Society of Scotland in Edinburgh. Or you can attend the AGM on 25 March 2010 and cast your own vote.

Call for radical Access to Justice (Scotland) Bill

The new Access to Justice Committee (AJC) of the Law Society of Scotland is calling upon members of the Scottish Parliament to support the introduction of a radical Access to Justice (Scotland) Bill as a top priority in the next session of the Scottish Parliament in 2011.

The AJC agreed at its first meeting in Glasgow yesterday to produce, as a matter of urgency, a detailed framework for a comprehensive and far-reaching Access to Justice (Scotland) Bill, which could immediately address a number of major deficiencies in accessing Scotland's systems of civil and criminal justice.

The Committee also agreed to identify, tackle and address the emerging risks to access to justice in Scotland which would flow from the announced cuts to welfare benefit spending by the UK Government, the forthcoming public sector cuts by the Scottish Government, and from the forthcoming decision of the UK Supreme Court in the case of Cadder v. Her Majesty's Advocate.

The Committee Convener Mike Dailly said:
"Access to civil or criminal justice in Scotland is a constitutional and human right. We believe that Scotland's legal system is a public service, not a commodity, which should deliver that right in the same way that schools deliver education, or the NHS delivers a health service. The courts must therefore be free at the point of use and should never be used as a means of generating income for the state"

"Accordingly, we believe that citizens in Scotland are entitled to access the appropriate legal advice, assistance, and representation, whenever their liberty, life, wellbeing, children, home, work, environment, and community are significantly threatened. We hold these principles to be self-evident".

"We have resolved to identify the key components for a wide ranging, and comprehensive Access to Justice Bill in Scotland, capable of meeting the needs of Scotland's people, its communities, and its legal system in the 21st Century".

"We would urge all MSPs and all Scottish political parties to embrace the need for a radical Access to Justice (Scotland) Bill in the next Parliamentary session, and to have regard to our analysis of the emerging risks to access to justice in Scotland in light of UK and Scottish Government welfare benefit and public sector cuts".

Committee Membership: in addition to the Committee Convener, the legal practitioner members are Patrick McGuire, solicitor advocate with Thompsons, whose career has been seeking compensation for victims of accidents, injury and disease; John McGovern, solicitor advocate with McGovern Solicitors and current President of the Glasgow Bar Association; Robert Sutherland, advocate and convener of the Scottish Legal Action Group; and Frances McCartney, solicitor and board member of the Environmental Law Centre Scotland. The lay members are Dave Moxham, Deputy General Secretary, Scottish Trades Union Congress; Danny Phillips, board member of Child Poverty Action Group; Geraldine Cotter, manager of Money Matters Advice Centre; Bob Hay of Glasgow University Student Representative Council, who has worked with a range of voluntary agencies and organisations on a consultancy basis; and Phyllis Craig, a senior welfare rights officer at Clydeside Action on Asbestos. Full biographical details of members are available here.

GLC's Principal appointed Convener of Access to Justice Committee

GLC's Principal Solicitor has been appointed Convener of the Access to Justice Committee (AJC) today by the Council of the Law Society of Scotland.  The AJC is responsible for promoting access to justice for the public in Scotland; monitoring the supply of publicly funded legal assistance across Scotland, encouraging greater co-ordination of services and liaising and negotiating with external organisations such as the Scottish Government, the voluntary advice sector and others bodies. The AJC also collaborates with other Law Society of Scotland committees, including Civil Justice, the Civil Legal Aid negotiating team, Mental Health and Disability, Equality and Diversity and Human Rights and Discrimination.

Breaking news: Alternative Business Structures rejected at Law Society's SGM ...

The Scottish Law Agents Society's motion opposing the external ownership of Scottish law firms ('Tesco Law' or ABS) has been approved at a Special General Meeting of the Law Society of Scotland (LSS)in Edinburgh this morning, reversing the pro-ABS policy of the LSS. A proposed 'ABS lite' amended motion by McGrigors was rejected by Scottish solicitors. 1,817 votes were cast against ABS, with 1,290 in favour.

Complaint to Electoral Reform Society

GLC has lodged a complaint with the Electoral Reform Society (ERS) in relation to the wording of the two questions in the forthcoming Law Society of Scotland referendum on ABS or 'Tesco Law'. The letter to the ERS is reproduced below.

Mr Andrew Burns
The Chairman
The Electoral Reform Society
6 Chancel Street
London
SE1 0UU

Dear Mr Burns

Law Society of Scotland (LSS) referendum on ‘Alternative Business Structures’ – internet-based voting system operated by the Electoral Reform Society (ERS) on behalf of the LSS

I am a Scottish solicitor, and a member of the Law Society of Scotland. I note that my Law Society has instructed the ERS to undertake an electronic referendum of all solicitors in Scotland on two questions concerning the proposed introduction of ‘Alternative Business Structures’ to Scotland.

I am aware of the first class reputation of the ERS and am therefore puzzled as to why you would put your good name and reputation to a referendum whereby the questions posed are biased, conditional and heavily weighted in favour of one particular outcome, namely ABS? This is the favoured policy of the governing body of the LSS, notwithstanding that it is now clearly opposed by many within the Scottish legal profession. For example, the first question posed is thus:

"Do you support in principle the introduction of Alternative Business Structures ("ABSs") to Scotland as long as there are appropriate safeguards to protect the core values of the legal profession and there is an equivalence of regulation between ABSs and traditional firms?"

This question predetermines the answer by making a value judgement that there will be ‘appropriate safeguards’ to protect the independence of solicitors' legal services to the public. But that is the very issue which is being debated amongst solicitors in Scotland. Separately, the question as framed is tautological (‘a statement that is true of necessity or by its logical form’).

Can you please advise whether the ERS had any involvement in the framing of the referendum questions? Can you please advise whether it is you policy as a UK body which promotes fair and democratic elections to take part in a voting procedure which is patently undemocratic by reason of the use of ‘loaded’ or ‘leading questions’?

Finally, can you please advise on your formal complaints process (and please treat this letter as a formal complaint) as I am concerned that the LSS will use the good reputation of the ERS to give credibility and respect to its flawed referendum on this occasion.

Yours faithfully

Mike Dailly
Principal Solicitor

Democracy shamed and silenced

More than 3,200 Scottish solicitors were disenfranchised and silenced today when the President of the Law Society of Scotland, Ian Smart, used a technicality to deny them a vote on whether to embrace or reject ‘Tesco Law’ (Alternative Business Structures or ‘ABS’).

Despite Mr Smart having previously challenged opponents of Tesco Law to ‘bring it on’, he faced a humiliating defeat today which he, Council members, and a small number of multi-millionaire big firm partners refused to face for fear of certain defeat.

Approximately, 2,300 solicitors had granted proxy votes against Tesco Law, with only around 921 in favour of the Law Society’s position. As the prospect of defeat presented itself to the Law Society’s minority elite they tried desperately to nobble the democratic will of the majority opposition.

They called for a comfort break, and asked opponents if they would agree to a restriction on external ownership whereby ABS providers would be required to have a majority of solicitors. The opposition agreed to enter into dialogue after the SGM but refused to compromise their motion, and pressed for a vote.

Facing certain defeat, Scotland’s Law Society President called for the meeting to be adjourned and seized upon a technical rule whereby only those present in the room could vote, resulting in over 3,000 proxy member votes being discounted. The net result was that 70 members of the profession – including around 50 Council members and a handful of multi-millionaires – voted to disenfranchise the democratic will of over 3,200 members.

GLC’s Principal Solicitor raised two points of order at the meeting. The first noted that given over 3,200 members had cast their vote by proxy, it would be undemocratic to deny them a voice in the future of our profession, and that the spirit of the debate required their voice to be heard and respected. This concern was rejected by Vice President, Jamie Millar of Brodies Solicitors, who chaired the SGM.

Secondly, Mike called for a vote of 'no confidence' in the Society’s President, Ian Smart, who had presided over the most undemocratic period in the Law Society of Scotland’s history, and by denying 3,200 members a voice in this debate had brought the legal profession into disrepute. This call was rejected by Mr Millar as incompetent.

GLC’s Principal Solicitor said:
“This is a dark day for Scotland’s legal profession. Democracy has been shamed, denied and abused by a small elite of 70 members, against the clear will and voice of of 2,300 members who had voted against Tesco Law. The Council of our Society has lost all credibility today. You can deny a democratic vote by filibuster or technicality, but the only loser is the reputation of our profession which now lies in tatters after this affront to democracy”.

A report on proceedings at the SGM is in The Times (Friday, 26 March 2010) here, and in The Scotsman here.

Law Society rigs referendum question

As Scottish solicitors cast their votes in the 'Tesco Law' referendum (whether to embrace or reject the external ownership of law firms by non-solicitors) the Law Society has chosen to use a ‘loaded’ question, heavily weighted in its favour.

The referendum question chosen by the Society predetermines the answer by making a value judgement that there will be ‘appropriate safeguards’ to protect the independence of solicitors' legal services to the public. But that is the very issue which is hotly contested in the Legal Services (Scotland) Bill. Also, the question as framed is tautological (‘a statement that is true of necessity or by its logical form’). The question asked is:

"Do you support in principle the introduction of Alternative Business Structures ("ABSs") to Scotland as long as there are appropriate safeguards to protect the core values of the legal profession and there is an equivalence of regulation between ABSs and traditional firms?"

Govan Law Centre’s Principal Solicitor, Mike Dailly, said:

"At the heart of the Tesco Law debate is the concern there would be inappropriate safeguards to prevent solicitors being influenced by a vested corporate agenda to the detriment of the public. For the Law Society to phrase its question to assume there would be safeguards is nothing more than a shameless attempt to procure a yes vote."

"The international and UK established practice in referenda is for questions to be framed as neutral, simple and unconditional, and for both sides of the argument to have a fair and level playing field when it comes to campaigning. That hasn’t happened as the Society has deployed all its staff and resources to campaign for a Tesco Law 'yes' vote. But now the referendum itself has been rigged by a loaded question".

"The Law Society’s President Ian Smart should hang his head in shame. The question should be reset in neutral terms, and Mr Smart should resign forthwith for presiding over the most unfair and undemocratic process in the history of the Law Society of Scotland".

GLC suggests the question should be framed in simple, neutral and unbiased terms:

Question: Do you support the introduction of Alternative Business Structures to Scotland?"

YES

NO

Scottish Government's concession on section 92 welcomed

GLC welcomes reports (Scotsman, 19 March 2010)that the Scottish Government has agreed to delete parts of section 92 of the Legal Services (Scotland) Bill, which would have given the Scottish Government the power to set the proportion and number of non-solicitor members on the Council of the Law Society of Scotland, and the criteria for such appointments.

Fergus Ewing's intervention is positive, yet it still leaves the irreconcilable problem that non-solicitors cannot 'represent' the interests of solicitors. GLC supports non-solicitor membership of the regulatory aspects of the legal profession, but on the proportions as applicable in England and Wales. The Bill should be amended to exclude non-solicitor membership of the Council of the Law Society.

Fergus Ewing has said that the 'without the Bill, Scottish law firms may be less able than their competitors to take advantage of the opportunities arising in areas of law not reserved to Scottish solicitors.” That is hardly an endorsement for the Tesco Law provisions of the Bill which extend far beyond reserved law matters, and include all devolved Scots law issues. If the Bill reflected the Scottish Government's own position, the ABS sections of the Bill would be restricted to corporate law issues.

Go, and go quickly

Call for the President of the Law Society of Scotland to resign, from GLC's Principal Solicitor.

Referenda are a powerful means to provide certainty on important issues. But the democratic authority of any vote depends upon whether it has been conducted fairly and transparently.

The UK Parliament recognised this in enacting the Political Parties, Elections and Referendums Act 2000. Part VII of that Act ensures that any UK referendum is conducted fairly, with both sides of an issue having equivalent financial resources, and equal routes of access to influence the plebiscite with their literature or voting message.

The current Scottish debate on Alternative Business Structures or ‘Tesco Law’ is subject to two forthcoming votes: a Special General Meeting on 25 March, and a referendum thereafter. The body responsible for conducting these votes is the Law Society of Scotland.

The Law Society of Scotland is the Returning Officer, charged with operating and conducting the ballot of its members, and counting the votes cast at the SGM and referendum on Tesco Law. The electorate are 10,500 Scottish solicitors, who are members of the Law Society of Scotland.

Yet, have you ever heard of a Returning Officer deploying all of their financial resources and staff to influence a vote? Actually, not just influencing a vote, but aggressively and overtly campaigning for a particular outcome in that vote?

No? Well, incredibly this is what the Law Society of Scotland is doing. It even has a Scottish Government Minister speaking on its platform today to tell us why we must support the Law Society’s and the Scottish Government’s desire to allow external ownership of Scots legal firms by financial institutions and other non-solicitor bodies.

Now, I have no problem with Ian Smart travelling around Scotland to preach the false virtues of Tesco Law to Scottish solicitors. That’s his personal right as a solicitor, but not as President of the body which is conducting the poll of its members on this issue. On his own time and expense only.

Likewise, why is Lorna Jack, the chief executive of our Society, travelling around Scotland to encourage solicitors to vote for Tesco Law? Ms Jack is a paid official, she is not a Scottish solicitor. She has no vote. Why should she use her official position to influence the outcome of a democratic vote?

The Law Society’s view on Tesco Law is what its members tell it; not what the President, Council, or the chief executive think. Otherwise, what’s the point of holding of a democratic plebiscite?

Likewise, I have no problem with Janet Hood promulgating the benefits of Tesco Law to in-house solicitors. But not as Chairman of the Law Society of Scotland’s In-House Lawyers Group, using the Law Society’s resources and confidential membership data to influence the vote of members. Data which is not available to those solicitors who disagree with Tesco Law.

The Law Society of Scotland is presiding over a polling exercise whereby it is also the chief campaigner and PR agent for ‘Tesco Law’. It’s the judge, jury and executioner of the independence of our profession.

Our Office Bearers and officials should be neutral in this debate: they should permit their members to advocate for, or against, Tesco Law. They have failed to do so. Worst still, they have taken it upon themselves to dictate to members how they should vote. This democratic deficit can only be described as Mugabesque. It’s thoroughly unfair and brings our profession into serious disrepute here at home, and internationally.

When I was on a recent Human Rights mission in West Central Africa, the British High Commissioner explained to me how certain vested interests paid for votes by slapping a 5000 CFA note on a voter’s forehead. Such undemocratic practices were utterly deplorable and repugnant, but how different are they to some people who should be impartial using their positions as Office Bearers and officers to sway the vote on the future of Scotland’s legal profession?

Scotland’s solicitors have been placed in a deplorable position. Cometh the hour, cometh the man or woman. Leadership is vital in critical moments. I sincerely believe that our President has sold the purse; he has failed to provide leadership; he has failed to promote and safeguard the interests of our profession. He has been responsible for an undemocratic and unfair voting process. I believe that our President, Ian Smart should go, and go quickly.

Prickly Paw

GLC's Principal Solicitor's note on the Law Society's CEO's position of separating the regulatory and representative functions of the Law Society of Scotland.

Lorna Jack’s reference to the Monkey’s Paw tale is apt. It’s a short horror story where each wish results in an unexpected gruesome outcome. In truth, our Law Society has been wishing on that Monkey’s Paw for the last couple of years: the Legal Services (Scotland) Bill is the consequence.

If the Law Society had truly represented the interests of our profession, and the interests of the Scottish public, it would not have embraced an unrepresentative, flawed, consumer lobby supposition, which proceeded upon the notion that access to justice was a consumer service. Consumerism is based upon choice, and choice is driven by wealth. Justice is based upon constitutional right. Fairness, not wealth.

All people are equal before the law regardless of wealth; in a consumerist world, equality and justice are commodities to be purchased. The moment you see legal services as any other commodity, you end up in the consumer lobby’s Casino, where the house always wins and cash gets you a better service. What then flows is Tesco law, the erosion of what makes a profession a profession, and the commodification of justice itself.

Organisations like Consumer Focus Scotland do not represent the majority of people in Scotland who lack the wealth to purchase ‘consumer choices’. CFS see life through the spectacles of a small, affluent, well educated, cohort. They have a disproportionately large influence on policy in this nation, and its time for Scotland’s communities to be represented by the people who live and work in those communities, and not an unelected consumer elite.

Sadly, we are where we are. Unlike, Lorna Jack, I would suggest the most logical and cost efficient way forward would be to incorporate the Scottish Legal Complaints Commission into a new slimmed down Law Society of Scotland which was purely a statutory regulator, comprised of a mixture of solicitors and members of the public: ‘the Scottish Solicitors Regulator’. That would streamline cost. There is no need for a committee of 60 to regulate 10,500 solicitors. The representative side of the Law Society’s function could be left to existing professional associations and the new networks which would arise.

The Law Society of Scotland has opened Pandora’s box. It’s time for Scotland’s solicitors to close it in the forthcoming referenda.

Rebuff by filibuster

GLC's Principal Solicitor's response to the Law Society's refusal to add the "dual function" question on the ballot of Scottish solicitors later this month.

In the brilliant 1939 Frank Capra movie ‘Mr Smith goes to Washington’ Jimmy Stewart holds up proceedings in the US Senate by filibustering. The filibuster is a dilatory motion to prevent something happening, which often employs an arsenal of objections and obfuscation. While Senator Smith was standing up for democracy, sadly, President Smart is filibustering to deny Scottish solicitors their say on the threat to the independence of our profession in the referendum commencing 22 March onwards.

In the interests of transparency, I have reproduced (below) the formal response from the Law Society’s Chief Executive last night, to yesterday’s requisition for a referendum question on: “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?”. Regrettably, our President, Vice-President and Chief Executive propose to kick this question into the long grass. The reasons for this decision can only be described as filibustering.

The Society have said they must ‘formally’ know what is meant by ‘promotion’ and ‘representation’ in order to ‘discuss’ the requisition. Yet Article 24 of the Constitution clearly mandates Council to hold a referendum on a question if at least 50 solicitors make a requisition. The only discussion is timing. The absurdity of the Society’s position is further exposed when one considers that ‘promote’ is the terminology used in section 1 of the Solicitors (Scotland) Act 1980, while ‘represent’ is the expression used by the Society itself.

Another reason given for not treating the future of our profession as urgent is because it might be a bit pricey in expense claims for Council members to meet next week? Astonishing. It might be helpful for a full disclosure of all expense claims so we ascertain why we are too poor to convene an extra meeting.

Finally, we are told that the position on ABS (Tesco Law) needs to be ascertained before we can consider changes to the structure of our regulatory and representative body. Lorna Jack says this is because the independent representation issue is subsidiary to the ABS issue. Yet, in today’s statement from Ian Smart, Ian quite rightly concedes that the two issues are ‘distinct’ and separate.

In truth, there is no cogent reason why the ‘dual function’ question cannot be added to the ballot paper. Justice delayed is justice denied. Likewise, filibustering over the democratic and constitutional rights of solicitors is wrong.

"Dear John

ARTICLE 24 REQUISITION

I confirm receipt of your letter together with the 65 signed notices requesting a referendum in terms of Article 24 of the Constitution of the Law Society of Scotland and your request under Standing Order 7(1)(a) asking me to request that the President call a special meeting of the Council. Ian Smart, President; Jamie Millar, Vice-President and I have agreed that your requisition will be discussed at the scheduled Council Meeting on Thursday 25th March. Council will then make arrangements to hold the referendum thereafter.

The President asks that prior to the papers being issued to Council for this meeting that, on behalf of the signatories to this requisition, you formally advise him of what is meant by "promotion" and "representation" as contained within your proposed question and the kinds of activities that you see falling within those terms. These explanations would assist the Council's discussion on the 25th March.

For the avoidance of doubt, the Council's proposed referendum is not in connection with the provisions of the Legal Services Bill. It will ask whether ABS has the continued support of the Profession. It directly responds to the issues raised regarding legitimacy of the 2008 vote which established the Society's policy and allows one member one vote in a secret ballot as you and others have suggested should be done. This issue needs clarification before any subsidiary issue, which arises as a result of s92 of the Bill, is dealt with, not least because some in the Scottish Law Agents Society believe that the referendum result may lead to a change in Government policy and the Bill as currently drafted. Partly in consequence of that, we have undertaken to them that the Society's referendum result will be known before the Stage 1 debate on the Bill, likely to take place in mid April. We do not therefore wish to delay the Society's Referendum which we have this week instructed ERS to deliver.

Cost must obviously however also be a consideration. The referendum planned will cost less than 40p per member. The cost of running a second referendum in the same way has been balanced against the cost associated with attempting to secure an additional meeting of Council before 25th March.

For information, our understanding, is that the Society has held referenda before, once in the 1980s in relation to the setting of advertising rules and once in the 1990's in relation to a levy which was raised to carry out an advertising campaign.

Kind regards

Lorna Jack"

Solicitors call for split in Law Society roles

The Herald reports that the regulatory body for Scotland’s 10,500 solicitors faces a damaging schism following news that three major law firms want to break away. The Govan Law Centre, MacRoberts and Thomsons claim the Law Society of Scotland’s independence has been compromised.

They have now allied themselves with the Glasgow Bar Association (GBA), and have warned that the society’s backing of so-called “Tesco law” threatens to undermine ­centuries of independent legal representation in Scotland. The GBA has called for a ­referendum of the country’s solicitors, questioning whether the Law Society should continue to represent them.

The row is about two different parts of the Legal Services Bill which is currently going through the Scottish Parliament. In addition to the ability of banks and large vested corporate interests to control solicitors, concern is focused on section 92 of the Legal Services Bill which provides for direct Government control over Scotland's legal profession. In relation to membership of the legal profession's governing body, section 92 provides that:

"The Scottish Ministers may by regulations— (a) specify—
(i) such additional criteria as they consider appropriate for
appointability as non-solicitor members,
(ii) the number of non-solicitor members, or proportion of the nonsolicitor
part of the membership, in relation to whom the criteria are to apply,
(b) prescribe a minimum—
(i) number of non-solicitor members, or
(ii) proportion of the membership that is to comprise non-solicitor
members, if they believe that such prescription is necessary for ensuring that the
number or proportion of non-solicitor members is adequate".

John McGovern, the president of the Glasgow Bar Association, said: “The public and profession expect solicitors to be ­independent – and that should be non-negotiable. Unfortunately the Law Society seems to have negotiated a bill which gives the government certain control over the profession.”

There will be a “special ­general meeting” of the society later this month at which the GBA and others want to overturn the ­decision to support “Tesco law”. Mike Dailly, head of Govan Law Centre, said: “People are starting to realise the bill will be a disaster because it will end the independence of legal firms.

“The key problem is that ­ministers will be able to affect the membership of the council and could have direct control of the number of non-lawyers. It is peculiar for a progressive nation to be introducing ­measures you are more likely to find in a developing country where you have complete ­government interference and political bias in all walks of life".

“It is completely regressive and strikes at the heart of what the profession stands for. The cases we take are often ­unpopular and may also be against the government.”

Royal Faculty debate on Scotland's legal profession

The Royal Faculty of Procurators in Glasgow is to hold an open debate - Tuesday 9 March @5.45pm - led by leading members of the profession, with contributions from the floor encouraged on Scotland's Legal Services Bill and the future of our legal profession.

The Legal Services Bill is at stage 1 of the parliamentary process. Its proposed changes, such as the introduction of Alternative Business Structures (ABS), could make it difficult for Scots to secure access to independent legal firms, restrict access to justice, and ultimately undermine competition in the Scottish 'legal market'.

GLC's Mike Dailly will speak on the issue of ABS, its threat to competition and access to justice generally; and its commodification of justice. In addition, a debate on whether the Law Society of Scotland can continue in its dual role as regulator and representative of the profession will take place, with a contribution from John McGovern, the President of the Glasgow Bar Association. Speakers representing the Law Society of Scotland, and the 'big four' corporate firms in Scotland will present an alternative viewpoint.

This discussion is made all the more important as the Scottish Law Agents Society (SLAS)have called a Special General Meeting of the Law Society of Scotland to ascertain the profession's views on these fundamentally important issues. Please visit the Royal Faculty for more information - if you are a solicitor and cannot attend you can give a Mandate to SLAS to ensure that access to justice in Scotland does not become a commodity, at the morally bereft caprice of the UK's banks or vested corporate interests.

Solicitors poised to derail ‘Tesco law’

The Times reports that the Scottish government’s flagship reform of the legal profession was in jeopardy last night after a powerful association of solicitors announced that it was seeking to reverse a decision of the Law Society of Scotland (LSS) to support key aspects of the legislation.

The Scottish Law Agents Society – representing 1,500 solicitors — will this morning “requisition” a meeting of the LSS, and call for a vote on the issue of “external ownership” of law practices by companies such as banks or supermarkets. A controversial LSS vote in 2008 in favour of external ownership – often known as “Tesco law” — has become a key part of the Legal Services (Scotland) Bill, and is set to become law later this year.

However, galvanised by the introduction of the Bill in October, which introduced external ownership along with other unpopular reforms known as ABS (Alternative Business Structures) opponents are now confident they have the numbers to overturn the proposed changes.

“After taking soundings among our membership, we are certain there is an appetite for a challenge,” said Ian Ferguson, a board member of the Scottish Law Agents Society. “The vote in 2008 in favour of ABS, came after consistent opposition. We have a substantial number of votes, and think we will reverse the decision within a month.”

Mike Dailly, principal solicitor at the Govan Law Centre said a U-turn by the LSS would torpedo the government’s legislation. “The Bill is only progressing on the understanding that it is supported by the legal profession,” said Mr Dailly. “If that position is completely turned round, MSPs would have to reconsider their position.”

Last night, Ian Smart, the president of the LSS, indicated the society would abide by the decision of the general meeting, which must be held within 28 days of the requisition. “The debate will set the profession and so the society’s policy on external ownership of ABS,” he said.

Law Society response on trainee exploitation debate

Last month the Firm published GLC's Principal Solicitor's contribution to the Scotsman debate on the subject of trainee exploitation, which challenged the Law Society's stance on key issues. Nick Taylor of the Law Society's Admissions Committee responds to Mike's points on The Firm online, with reference to the proposed changes to qualifying as a solicitor in Scotland, from September 2011.