MSPs Back Independence of Legal Profession in Legal Services (Scotland) Bill

Justice Committee MSPs backed government commitment to secure solicitors’ independence by dropping proposals to allow ministers to set the criteria for non-lawyer membership of the Law Society of Scotland’s Council.

MSPs agreed today, Tuesday, 29 June, during a debate on the Legal Services (Scotland) Bill that ministers should not be able to influence the composition of the Law Society’s Council. However, to ensure that the functions of the Council and a new regulatory committee, established by section 93 of the bill, are kept separate, an amendment was also passed to make explicit that the Council should not interfere unduly in the regulatory committee's business. A proposal to set up a separate representative council was rejected.

The Law Society and many of its members objected to the potential for ministers to have powers to stipulate who sat on its Council, the decision-making body for solicitors, stating that it would compromise the profession’s independence from government. The Council currently consists of up to 43 elected solicitors from across Scotland and up to nine co-opted solicitors from a range of legal disciplines. There are also four non-solicitor observers.

Jamie Millar, President of the Society said he was pleased that that the committee had backed the commitment expressed earlier this year by Communities Safety Minister Fergus Ewing to bring forward amendments to ensure independence of the profession.

He said: “The Society takes its responsibility to protect consumers very seriously and has for many years had a number of regulatory committees with 50% solicitors and lay members to ensure that public interest is being represented and that action can be taken against solicitors who are not meeting the required professional standard. However, as a membership body we have a clear obligation to represent our members’ interests and provide the professional support that they require. It would have been contrary to the Society’s duties to its members to allow ministers, even as a last resort, rather than the profession alone to shape its Council and I think the amendments passed today will help ensure the right balance.

“We all recognise that there needs to be a careful balancing act and that at times the tension between regulating and representing our members can create challenges, but I would echo Robert Brown MSP by saying it is a ‘creative’ rather than ‘destructive’ tension which helps to maintain the high standards that we expect our members to work to.”

The Society also supported an amendment today to strengthen the Scottish Legal Aid Board's obligation to monitor the availability and accessibility of legal services in Scotland. It will require SLAB to take into account relevant factors, relating particularly to rural or urban areas, to ensure there is no detrimental impact on the public’s access to legal services.

MSPs also agreed an amendment which at some future point would allow ministers to change the percentage of non-solicitors or regulated professional ownership of licensed legal services providers if necessary, however the Society believes that there needs to be a clearer specification under which ministers might act.

Mr Millar said: “The requirement to consult the Lord President, the Society, all other approved regulators and the OFT before making regulations to amend or repeal the section on majority ownership, offers some reassurance. However we do have concerns that if Scottish ministers have free rein to alter the percentages, this uncertainty might be a disincentive to investors. There is also a lack of specification of the conditions under which Scottish ministers would exercise those powers.

“There are to be further talks during the summer prior to stage 3 and we welcome the opportunity to discuss the bill further with Scottish ministers and MSPs.”

29 JUNE 2010

Note to editors

The Society has pressed for a number of amendments to ensure that the Legal Services (Scotland) Bill would meet its stated objectives of broadening access to legal services while retaining a strong and independent legal profession and which had the public interest and access to justice at its heart. The Bill proposes to allow new legal services businesses to be set up in Scotland by non lawyers, as long as they have a majority ownership by solicitors and/or other regulated professionals. Currently only solicitors can set up and own law firms in partnership with other solicitors.

The Society’s stance on the Bill is that it must:

* Ensure independence of the legal profession and its regulators by creating an obligation on ministers to consult the Lord President of the Court of Session

* Create a level playing field by, for example, requiring new providers to have a compensation fund for clients who have suffered loss through dishonesty.

* Promote access to justice by making sure that the Bill’s regulatory objectives and professional principles have interests of justice at their core.


Please contact Val McEwan on 07825 206468.