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.

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"

Referendum: time to protect the independence of Scotland's solicitors

The President of the Law Society of Scotland, Ian Smart, confirmed to BBC 1's Politics Show yesterday that an urgent secret ballot of every solicitor would take place, to determine whether the Society should continue to support the 'Tesco Law' provisions of the Legal Services (Scotland) Bill. The Bill would enable non-solicitors to own and control firms of solicitors, and give the Scottish Government the ability to set the number of non-solicitors, and criteria for appointment, on the Society's ruling Council.

GLC's Principal Solicitor challenged the case for Tesco law with Mr Smart on the Politics Show, and argued that the Bill would effectively end over 500 years of solicitor and legal profession independence. Mr Smart's dismissed fears upon the basis that 27% of all solicitors were already employed by banks, companies, and local authorities, and insisted that 'no one would suggest these solicitors were not independent'.

However, GLC's position is that the 27% of solicitors who are already employed by businesses or councils, do not provide advice to the public. They are in-house lawyers providing a specialist service to one client only, the entity that employs them, and therefore, this defence misses the point. The concern is that if the Bill is passed vested corporate interests would be able to provide solicitor services direcly to the public, and those services would not be independent. You cannot have 99% independence, and allowing businesses with track records in unethical and immoral practices to control access to justice is a receipe for moral hazard and disaster.

The debate on the BBC Politics Show can be watched here (105 mins in)

Today's The Scotsman article on this issue is available online here.

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.”