While our Justice Secretary sweats over whether to fully implement the OFT's recommendations on reforming access to justice & legal services, a few of you have been asking my thoughts about the Legal Profession and Legal Aid (Scotland) Act 2007
The LPLA (Scotland) Act was passed, to address significant concerns over regulation of the legal profession.However, the LPLA (Scotland) Act we have now, a watered down version of what was initially planned is a watered down version of what was initially planned, and that is due of course, to protests from the legal profession during the consultation phase of the LPLA Bill through the Parliament in 2006, and amendments lodged by MSPs allied to the legal profession during the LPLA Bill debate at Holyrood in December.
The LPLA (Scotland) Act, does something for regulation of the legal profession, in terms of bringing about the Scottish Legal Complaints Commission, who will to a degree, oversee the investigation & regulation of service complaints against solicitors, but regulation of conduct complaints, and the disciplinary process, is still handled by the Law Society of Scotland.
The LPLA (Scotland) Act, therefore, falls down on removing regulatory and disciplinary procedures from the legal profession in their entirety, and while it is the case that lawyers can regulate their colleagues, or discipline their colleagues, there will be no true transparency or accountability in regulation of the legal profession in Scotland until the SLCC gets the necessary powers to deal with all complaints against solicitors while also handling disciplinary procedures.
A quick example of the SLCC as it currently stands would run something like this :
A client makes a service complaint against their solicitor.
The SLCC & Law Society argue as to whether it is indeed a service complaint, with the Law Society trying to take control of the complaint designating it a "conduct issue", resting in their remit, rather than a "service" issue, resting with the SLCC.
The SLCC win their argument, investigate the complaint, find the solicitor guilty of poor service, then ask the Law Society to prosecute the solicitor on particular issues.
The Law Society prosecute the solicitor, either bungling the case deliberately, or through incompetence, and the solicitor who was found guilty by the SLCC after an investigation of the client's complaint, escapes justice yet again.
Not an ideal arrangement, but one which has been foisted upon us by the Law Society's demand to retain a regulatory & disciplinary role with regard to complaints against solicitors.
The question would then be, will Kenny MacAskill as Cabinet Secretary for Justice, or the SNP administration currently in charge of the Scottish Executive, change such arrangements so the SLCC will handle all regulatory & disciplinary matters involving the legal profession ?
I think the answer to that one isn't particularly clear, when actually it should be clear.
If the LPLA (Scotland) Act and the Scottish Legal Complaints Commission don't property address the failures of regulation of the legal profession, Scotland should surely expect it's Executive or Government to address any failures and remedy the problem accordingly ?
Well, you would think that to be the case, but time is ticking and the failure to progress issues such as the well known sins of the past by the legal profession, where countless solicitors remain in practice who have effectively ruined clients lives with the backing of the Law Society of Scotland, do not bode well for confidence in the current administrations ability to bring about an end to injustice, caused by the justice system as currently controlled it seems, by itself.
Another question which was put to me was : Would any political party have passed the LPLA (Scotland) Act. I think we all know the answer to that one.
I doubt that any political party other than Labour, would have been able to pass the LPLA (Scotland) Act.
For a start, Labour had the numbers in the Parliament in their favour, and also the backing of Westminster, who themselves, have seen just as many representations from constituents in Scotland who have encountered problems with the legal profession & crooked lawyers.
The Conservatives certainly would not have passed any laws which took away regulation by solicitors of complaints against solicitors or passed anything which would have increased fines for crooked lawyers, or compensation payments to ruined clients. Indeed there were some within the Conservative party who worked against the LPLA (Scotland) Act, such as Bill Aitken MSP, now bizarrely, the Convener of the sole Holyrood Justice Committee. Mr Aitken attempted to limit the scope and remit of the LPLA Bill during it's parliamentary phase, debate & eventual vote, to the point of making the legislation useless
Yes, there are some within the Conservatives (I count one) who have done much for their constituents with regard to such legislation, and indeed it was a Conservative who in-effect, started the ball rolling on what eventually became the LPLA (Scotland) Act, but that MSP, none other than Phil Gallie, is no longer at Holyrood, and I doubt the Conservative party leadership if god forbid, they were ever in charge of the Scottish Executive again, would have passed such lawyer busting legislation.
The LibDems, while being part of the former Labour/LibDem Scottish Executive who did pass the LPLA (Scotland) Act, were not for the majority, a willing partner in the progress of the LPLA Bill hearings at Holyrood.
If the LibDems were solely in charge of the Scottish Executive, I do not believe they would have proposed or passed such legislation, and indeed, a LibDem English Peer, Lord Lester of Herne Hill QC was employed by the Law Society of Scotland to opinion a legal challenge against the LPLA (Scotland) Act by threatening court action against the Scottish Executive & Parliament
Lastly we come to the SNP.
Given John Swinney's now famous skirmish with Douglas Mill before the Justice 2 Committee over a secret memo, where it was revealed Mr Mill was interfering in negligence claims against solicitors interfering, and Mr Swinney's representation of constituents who have problems with the legal profession and the Law Society, I would have to say the SNP might have passed the LPLA (Scotland) Act if they were solely in charge of the Scottish Executive, but that's only a "might".
There are many who believe the SNP would not dare disobey a substantial influence from the legal profession within their party to propose and pass such law reforming legislation as the LPLA (Scotland) Act ... and admittedly, the SNP are yet to prove their track record on the justice system and reform of the legal profession as these areas, strangely, have been left out of significant proposals up to now.
In short, the SNP have everything to prove and everything to lose, on justice, access to justice, and injustice. Are they up to the challenge ? The clock is ticking on justice & injustice and so far, there are little developments which could without doubt be said to put right the sins of the past ...
Today in the Scotsman, there is an interesting piece on Kenny MacAskill's performance as Justice Secretary.
The report predictably is focused on the Law Society of Scotland's fears over implementing the OFT's recommendations for wider access to justice, and thus breaking the centuries old monopoly held by solicitors & advocates over legal services - the prime money spinner for the Scottish legal profession.
In fact, reading the piece today, one could be forgiven for thinking the public interest and surely the right of every individual to access to justice & legal services, takes second place to the apparent right of solicitors & the Law Society of Scotland to retain their monopoly and decide who gets access to justice and who does not. A justice system fit for a 'banana republic' perhaps ?
Isn't it about time our politicians started giving the public some benefit instead of the professions ? Where are the reforms and inquiries into injustice we are due ?
Read on for the article from the Scotsman :
BY THE time the Office of Fair Trading (OFT) started looking at that Which? super-complaint in May, the political landscape had shifted - Labour were out and the SNP were in, albeit by a nose.
So a new justice secretary has been left with the task of responding to the OFT's recommendations and reacting to the legal profession's inevitable concerns about potentially seismic changes to the legal services market.
To an extent, Kenny MacAskill has been able to hit the ground if not running, then jogging. In the eyes of lawyers at least, he does enjoy one major advantage over Cathy Jamieson, his predecessor because, before switching careers to become an MSP in 1999, he was a practising solicitor for 20 years.
The MSP for Edinburgh East and Musselburgh knows from past and relatively recent experience what it's like to be a lawyer dealing with the everyday challenges of demanding clients.
Combined with his experience of the legislative process in parliament, that should make him a seasoned legal veteran.
So as the profession awaits the Scottish Government's response to the OFT's recommendations with some trepidation, will he adopt a softer approach to the previous administration, once colourfully accused by the Law Society of Scotland of "naked lawyer-bashing"?
In other words, whose side will MacAskill be on?
Anyone attending the recent Law Society of Scotland conference on alternative business structures knows that there are several to competing interests to choose from.
Should he listen to big firms who want to compete with English rivals, or small firms who want to protect access to justice? Or middle-class consumers who want a better deal when shopping around for conveyancing services, or working-class people who can't afford to pay for a lawyer in the first place?
At the conference, MacAskill seemed to be trying to tread the very fine line between spelling out that change was inevitable - and without "endless" time to navel gaze on what exactly that change would be - and trying to convince the profession that he was still on their side. Up to a point, anyway.
Apart from a slightly clumsy attempt at a football league analogy - I'm not sure quite how many firms would like to be compared to the Old Firm, let alone Stirling Albion or Gretna - his speech appeared to be well-received.
He made the right lawyer-friendly noises about protecting and indeed promoting the integrity of the Scottish profession and the legal services market.
He also made it clear that he was not afraid to go a different way from Westminster and would not "blindly follow" the Clementi blueprint.
Yet, given the recent spats between Messrs Salmond and Swinney and the Labour government at Westminster, over everything from the financial settlement to foot-and-mouth disease, MacAskill may have to reassure those who fear the Scottish National Party may seek to preserve difference from England for its own sake rather than the good of Scotland.
If he does seek to press ahead with reforms before Clementi takes effect in England at the turn of the next decade, he will need to show the profession there is a sound basis for change at such a fast pace.
MacAskill is now facing a tough test. He will have to weigh the profession's concerns and decide whether there is hard evidence that alternative business structures will harm the public interest. If he finds none, then firms will have to deal with the consequences.
But, however much MacAskill's brain still works like that of a lawyer, his instincts will be those of a politician. If it comes to the crunch, who is more important in winning votes - lawyers or consumers?