Response by Glasgow Bar Association re
Law Society of Scotland Constitution
RESPONSE FROM THE GLASGOW BAR ASSOCIATION TO THE "PROPOSALS FOR
CHANGE" CONSULTATION DOCUMENT ISSUED BY THE LAW SOCIETY OF
SCOTLAND
Section 1 of the Solicitors (Scotland) Act 1980 states the
"objects" of the Law Society of Scotland (the "LSS").
It is the view of the Glasgow Bar Association (the "GBA") that
there is an irreconcilable conflict contained within s.1 of the
Solicitors (Scotland) Act 1980 (the "Act"). That section legislates
that it shall be "the object" of the Law Society of Scotland, inter
alia, to "promote" the "interests of the solicitors' profession in
Scotland" as well as "promoting the interests of the public in
relation to that profession". It is impossible for the promotion of
both interests to be mutually consistent, beneficial or indeed
legitimate.
The GBA welcomes the decision of the LSS to embark on a
consultation process with regard to its constitution. It regrets
that the consultation period, on such a fundamental issue, has been
restricted to one month. However, it suspects that the process is a
reaction to events in England, which have seen the separation of
"objects" and the establishment of a Solicitors Regulatory
Authority, independent of the English Law Society. The Scottish
Legal Complaints Commission, a "hybrid organization" established in
2008, is funded entirely by the members of the LSS, i.e. all
solicitors. It receives no public funding and investigates
complaints made by members of the public with regard to "service"
(but not "conduct") complaints against solicitors.
In the view of the GBA, the LSS has for decades failed to
recognize the inherent and obvious conflict that arises in
representing the public and the profession. The dilemma at the
heart of the conflict can be put simply: how can the LSS represent
or advise a solicitor that, for example, is the subject of a
misconduct complaint to the LSS from his/her client? The answer too
is simple: the LSS does not, and will not, offer advice, guidance
or representation to that solicitor, under explanation that it is
investigating the solicitor's alleged misconduct. Thus, the
solicitor against whom perhaps serious, false and defamatory
allegations have been made by a member of the public, will enjoy no
"promotion" of his/her "interests" by the LSS in relation to that
complaint; yet the "interests" of the member of the public making
the complaint are "promoted" by the very investigation of that
complaint itself. This conflict, in the view of the GBA, is
irreconcilable.
The conflict is obvious and serves as a source of frustration to
the profession. Solicitors, who currently pay over £1200 per year
to the LSS (40% of which the LSS says is spent on "representation"
of its members) cannot benefit from that representation in
circumstances where their conduct is called into question, almost
always on the basis of uncorroborated ex parte statements, by
clients, former clients or members of the public. The individual
solicitor is, in practice, left to his/her own devices. By
contrast, the conflict which is embodied within s.1 of the Act,
serves as a source of frustration to a public, rightly unconvinced
that any such complaint can be fairly investigated, given that s.1
of the Act allows the very body to which the member of the public
has complained, to "promote the interests of the solicitors'
profession in Scotland".
In considering the "Proposals for Change" document from the
"Governing Council" (presumably the recently created "Board" infra)
of the LSS, the GBA has two major and serious concerns.
First, the already established "Board" which allows a more
"senatorial" role for Council. In the view of the GBA the creation
of this "Board" distances ordinary LSS members further from the
decision making process. The Council, it now appears, is the main
strategic arm of the LSS, whilst the "Board" is now the "principal
decision making body" of the LSS. Removing decision making from, in
theory, the democratically elected Council members (though in
practice few LSS members exercise their franchise), without
reference, in any consultative or democratic manner, to the LSS
members is simply wrong. A further layer of administration has been
created and the "decision making process" has been further removed
from the thousands of LSS members who are now only allowed to vote
for representatives who will oversee strategy, but not make
decisions. How can democracy and accountability be enhanced by the
creation of a "principal decision making Board" which is not
accountable to, or elected by, the LSS members?
The establishment of this "Board" is, in the view of the GBA,
typical of the "elite" culture existing within the LSS. The
creation of the "Board" makes the LSS less accountable as a
decision making body, inevitably increases costs for members by its
creation, and is, ultimately, unaccountable in any direct sense to
the LSS members. This elitism, and lack of any worthwhile
accountability at the heart of the LSS, is manifested by the
current refusal by the Council member for Hamilton, who is the
Convener of the Legal Aid Committee, to address the hundreds of LSS
members in Glasgow who practise criminal legal aid. These Glasgow
members are rightly concerned about the progress, or otherwise, of
his (the Convener's) negotiations with the Government over solemn
legal aid fees. These negotiations, which have been going on for
years, will impact on every criminal practitioner in Glasgow. Yet,
despite the hundreds of thousands of pounds LSS (criminal legal
aid) members in Glasgow pay to the LSS every year, the Convener
feels a meeting with his Glasgow colleagues would not be of any
"value".
Secondly, the GBA has serious concerns that, at a time of
decreasing financial returns for just about all solicitors, the
administration of the LSS is to substantially increase via the
expansion of the Council from forty three members to sixty: a forty
per cent increase.. And this in addition to the newly created
"Board". The associated costs are entirely incongruous with the
current concern among LSS members about the excessive running costs
of the LSS. This new structure of Council membership and "Board"
creation will inevitably increase the overheads of the LSS at a
time where every law practice in the country is seeking to cut
overheads. The marked increase in "non solicitor" Council members
can only be viewed as a desperate attempt to avoid further
criticism of the conflict in the "objects" of the LSS: criticism
which impacts on the very existence of the LSS. Economic logic and
prudent governance would have concluded that the creation of a
further tier of LSS bureaucracy in the shape of the "Board" would
have meant a decrease in Council members and costs. Alas, not
so.
The GBA believes that the "Proposals for Change" do not address
in any way the conflict at the heart of the LSS highlighted herein.
The GBA suggests that the proposed reform of the constitution will
create an extra tier of unnecessary, costly administration, adding
to the elitist development of the LSS. The reform proposals are
proposals that the LSS hopes will dissuade those critics seeking a
separation of the statutory "objects" of the LSS. Nothing more.
The Committee
GLASGOW BAR ASSOCIATION
SHERIFF COURT
GLASGOW
3rd November 2009