After a long battle between campaigners, consumer organisations, and the Scottish legal profession to get access to legal services opened up, the Which? super complaint seems to have done the trick with the OFT announcing today it was recommending the lifting of restrictions on the legal services market in Scotland, where for some time, anyone wishing or needing access to legal services or the courts has been forced to use a lawyer or advocate ... but if that lawyer or advocate, or their professional colleagues didn't want you obtaining legal services, or getting to court, that was it.
You can read the Office of Fair Trading statement released today here : OFT response to super-complaint recommends lifting restrictions in the Scottish legal services market and you can download the full response to the Which? 'super complaint' here : OFT full response to the super-complaint (pdf 139 kb)
All eyes turn now to our Justice Secretary Kenny MacAskill who wrote in Monday's Scotsman of his slight reluctance to give Scottish consumers the full benefits if the Clementi reforms which are enjoyed in England & Wales .. for reasons many seem to suspect are more protective of the legal profession rather than the public interest.
What is it to be Kenny ? open up the legal services markets as they should be ? or keep them closed because Douglas Mill & colleagues fear their wallets getting thinner while members of the public break out of the lawyers control on access to justice ...
Shouldn't we be doing away with this culture of injustice which has been generated by appallingly blatant interference from the legal profession in public life as this problem over access to justice ? where for 17 years, the Law Society of Scotland, along with allies from the judiciary and willing politicians have kept Sections 25-29 of the Law Reform (Misc Provisions) Act (Scotland) 1990 off the books, simply to maintain their money making business monopoly and restrict everyone's right to access legal services ?
Maybe the Justice Secretary should also be looking to extend the powers of the new Scottish Legal Complaints Commission and remove all regulatory functions from the Law Society of Scotland & Faculty of Advocates because both self regulators have proved they don't have any impartiality at all, and got used to pursuing an agenda of anti client bias which will never change.
The Justice Secretary might also be advised to keep a close eye on fiddles & dirty tricks presently put into motion by the Law Society of Scotland over the new SLCC to gain a foothold within it's organisational structure ...
Here are some of the articles I've covered on the access to justice issue in the past, showing the difficulties of breaking the solicitors & advocates stranglehold on legal services in Scotland .. a lot of opposition of course from the legal profession and friendly politicians is evident, due to the size of the legal markets in profit terms .. and those little advantages which come from being the only ones who decide who gets access to justice and who gets justice denied....
Articles follow from the OFT & Scotsman (with some particularly interesting comments on their forums) :
110/07 31 July 2007
The OFT has today made recommendations to the Scottish Executive and the legal professions in Scotland to lift restrictions which could be causing harm to consumers.
In Scotland there are restrictions on advocates' business structures, solicitors and advocates providing services jointly, third party entry into the market, and direct consumer access to advocates. The decision to recommend lifting these restrictions follows a super-complaint from Which? that called for these restrictions to be removed.
Download full response to the super-complaint HERE (pdf 139 kb).
Which? argued that the current restrictions against such practices prevent legal services providers in Scotland from adapting their business to best fit the needs of Scottish consumers. The OFT concluded that the restrictions are unnecessary and believes that there would be benefits to consumers if they were lifted – such as efficiency gains and higher levels of innovation in the provision of legal services. The OFT is now looking to the Scottish Executive to outline its approach to removing these restrictions in Scotland, and the Scottish Executive has agreed to respond formally to these recommendations within 90 days.
Sean Williams, OFT Executive Director of Markets and Projects, said:
'There should be real benefits to Scottish consumers in allowing solicitors and advocates to adopt the most efficient businesses structures. I hope the Scottish Executive can work with the profession to remove restrictions that, in our view, are unnecessary and prevent solicitors and advocates from innovating to meet the needs of consumers.'
Kyla Brand, OFT Representative in Scotland, said:
'Scotland's legal services are hugely important for individuals and businesses – they underpin economic success and have always done so. The OFT wishes to see them grow and innovate, competing on equal terms with providers across the UK. We are committed to working with the parties in Scotland to make the system work better for all.'
1. The right to submit super-complaints was created by section 11 of the Enterprise Act 2002. A super-complaint is defined under section 11(1) of the Act as a complaint submitted by a designated consumer body that 'any feature or combination of features, of a market in the United Kingdom for goods or services is or appears to be significantly harming the interests of consumers.'
2. On 8 May 2007 Which? submitted a super-complaint to the OFT about credit card interest calculation methods. See Which? website for details. Section 11(2) of the Act requires the OFT, within 90 days of receiving a super-complaint, to publish a reasoned response saying what action, if any, it proposes to take.
Scotsman report follows :
HAMISH MACDONELL AND JOHN ROBERTSON
A RADICAL overhaul of Scotland's legal system to give consumers greater choice and a cheaper service will be recommended today by the UK's competition watchdog.
The Scotsman has learned the Office of Fair Trading (OFT) wants to lift restrictions on the way lawyers operate in Scotland, opening up the profession to competition for the first time.
That would pave the way for high-street banks and even big supermarket chains such as Asda and Tesco to enter the market.
The Scottish Executive has agreed to respond to the OFT within three months and ministers are expected to accept the recommendations and deregulate the legal profession, bringing in full competition.
If that happens, it will revolutionise the way law services are provided and dismantle the closed arrangements between solicitors and advocates that have existed for centuries.
The OFT move was prompted by a "supercomplaint" filed by the consumer group Which? It argued that the strict controls on how legal professionals in Scotland were allowed to practice hindered market innovation, restricted consumer choice and might have led to higher prices.
At present, solicitors are not allowed to go into partnerships with non-solicitors, constraining companies from other fields from offering legal services and stopping solicitors from setting up joint groups with accountants or surveyors - groups that Which? believes could offer cheaper services to consumers.
Also, solicitors are the only people allowed to instruct advocates, a restriction that the OFT believes simply adds another layer of bureaucracy and cost to the process.
The OFT will recommend today that all these restrictions are swept away and the watchdog has made it clear it wants early and definitive progress from the Executive.
Kyla Brand, the OFT's representative in Scotland, said last night: "We are asking that there should be clear progress on this. There should be some policy statement by the end of the year."
She confirmed that, if the OFT's recommendations were implemented in full, it could mean the complete deregulation of the profession and the introduction of new players, such as supermarkets or banks. But she stressed that would depend on the way ministers and the legal profession decided to implement the changes.
The OFT did not take a definitive view on the call for an independent regulation body for the profession, taking control of solicitors away from the Law Society of Scotland. Ms Brand said this should only be decided once the Executive and the legal profession had decided to proceed on the lifting of regulations.
Kenny MacAskill, the justice secretary, is on holiday and was unavailable for comment last night. But yesterday, he wrote an article for The Scotsman making it clear he expected to drive through change in the legal profession and that the status quo was no longer an option.
The legal services profession in England is already some way down the road to deregulation, and there have been fears that Scotland could be left behind if it was not able to compete on a "level playing field".
Julia Clarke, from Which?, was delighted with the OFT's decision. She said: "They have confirmed our view that the current system of regulation is failing consumers. We now hope the restrictions will be lifted."
A spokesman for the Faculty of Advocates, which had given a cold reception to the Which? supercomplaint, would only say: "The faculty cannot comment upon a rumour."
Michael Clancy, of the Law Society of Scotland, which had called for no action by the OFT, said: "The supercomplaint was an important document and the society made its views known about the content of it."
Q & A: LEGAL 'SUPERCOMPLAINT'
Why was a complaint made?
Which?, the UK's largest consumer body, submitted a "supercomplaint", as defined in the 2002 Enterprise Act, to the Office of Fair Trading.
Which? asked the OFT to recommend removal of current restrictions within the legal services sector, including those on non-legal ownership of firms - allowing outside companies to own and run law firms - and access to advocates, which generally has to be through a solicitor. The argument was that existing business structures and working practices restricted consumer choice and could inflate prices.
Did Which? want to see anything else done?
Yes. It has a vision of an independent Scottish Legal Services Board to watch over regulation of solicitors and advocates or to take regulation completely out of the hands of the Law Society of Scotland and the Faculty of Advocates.
Was Scotland being singled out for reform?
No. England and Wales have led the way in many of the areas under consideration and legislation is currently going through the Westminster parliament to apply south of the Border.
What did the Law Society of Scotland make of the supercomplaint?
The society called for no action by the OFT, while recognising that some larger law firms in Scotland supported the introduction of alternative business structures as a way of trying to ensure a level playing field with English counterparts.
How strongly did the society make its feelings known about the supercomplaint?
Its chief executive, Douglas Mill, stated: "It is disappointing Which? has produced a document which has no evidential base and which does not contribute in a meaningful way to the debate on the legal services market in Scotland."
Was the Faculty of Advocates more tempered?
Not really. It warned of access to justice coming under "serious threat" and the dean, Roy Martin, QC, said: "It is not appropriate simply to translate arrangements passing through parliament in Westminster directly into Scotland. It may be said that the purpose of the supercomplaint is no more than to try to create a uniform regulatory regime throughout the UK for no reason other than regulatory consistency."