Secret legal advice ordered Scottish Ministers to keep Law Society exempt from Freedom of Information. BLACKED OUT DOCUMENTS containing secret legal advice issued by taxpayer funded Scottish Government lawyers show that Scottish Ministers WERE ORDERED by the legal profession to allow the Law Society of Scotland to keep its much coveted yet little-talked-about exemption from Freedom of Information legislation. The censored advice, issued by lawyers working for the Office of the Solicitor to the Scottish Executive, who are themselves, fully paid up members of the Law Society of Scotland has led to a policy by the present Scottish Government since it was elected in May 2007 to mislead members of the public, consumer groups, law reformers and FOI campaigners on the question of making Scotland’s legal profession accountable under Freedom of Information legislation.
Scottish FOI Commissioner Kevin Dunion. The so-far secret documents relating to the Scottish Government’s attempts to keep quiet about their involvement with the Law Society/FOI issue, have only now been grudgingly released by the Scottish Government in an attempt to persuade Scottish Information Commissioner Kevin Dunion from ordering the full disclosure of the legal advice, which has led to a policy of misleading the public for several years on the question of making the regulator of Scotland’s legal profession comply with Freedom of Information laws.
Secret papers disclosed during FOI investigation show Scottish Government ‘is afraid’ of Law Society of Scotland’s legal challenge against Freedom of Information compliance.
The move to keep the Law Society of Scotland free from scrutiny under Freedom of Information legislation will avoid any possibility that clients, the media and the general public could use FOI laws to find out key details of regulatory procedures at the Law Society itself, which are famed for allowing crooked lawyers to continue working no matter what they do to clients, discover actual records of complaints histories of Scottish solicitors, the criminal records of solicitors and staff working in the legal services sector, and also allow clients access to their own personal files held by solicitors, which are often ‘held to ransom’ by solicitors demanding payment before being handed over, in a vastly edited format.
While Scots are forced into the dark chasm of FOI exempt dealings with the Law Society of Scotland, the Law Society of England & Wales while also not FOI compliant, have an open policy of replying to Freedom of Information requests from the public, as I reported earlier, here : Criminal records of lawyers : Scots public kept in dark over convictions while England & Wales get ‘right to know’
Emails between Civil Servants show Scottish Government fear Law Society action against Freedom of Information Scrutiny. A legal insider said last night : "I understand the Law Society warned the current SNP Scottish Executive and the previous administration that it would legally challenge any attempt by Scottish Ministers using Section 5 of the FOI(S) Act to bring them into compliance. The documents now released seem to confirm this.”. He went on : "The civil servants talking about how the Law Society would challenge against any such move, using 'legal privilege' and 'client confidentiality' is very much spot on in terms of what tactics the Law Society would use to prevent itself being made compliant with FOI legislation although I also understand from colleagues that an option of Judicial Review would have been used by the Law Society, should the then Scottish Executive or present Scottish 'Government' have proceeded to bring the Law Society within the scope of FOI."
One Scottish Government civil servant wrote in an email between legal departments : “I am aware that the LSS (Law Society of Scotland) is not subject to the FoI Act and I suppose that any attempt to bring them into line with the spirit of FoI would be resisted on the grounds of legal privilege/client confidentiality.”.
However letters sent out on the authorisation of the Justice Secretary, Kenny MacAskill to FOI campaigners claimed “No decision have yet been taken as a result of [a consultation on Freedom of Information in Scotland'] and Ministers are currently considering the requirement for any action on the issues considered, including coverage of the [FOI] Act” clearly portraying a deliberate policy by the Scottish Government to mislead the public with regard to FOI issues & the legal profession in Scotland.
Scottish Ministers will fight to prevent public knowing why lawyers are exempt from FOI legislation. While the legal advice apparently ordering Scottish Ministers to allow the Law Society of Scotland to keep its exemption from FOI legislation was made during the previous administration, the current SNP controlled Scottish Government have now forcibly warned Scotland's FOI Commissioner, Kevin Dunion, that they will fight to keep the public from knowing that Ministers have in effect been bullied by the Law Society of Scotland into keeping the Scots legal profession free of public scrutiny which would come with FOI compliance.
Law Society of Scotland & Faculty of Advocates remain secret, unaccountable to FOI scrutiny. The Law Society of Scotland is one of two key regulators charged with overseeing Scotland's legal profession, the other being the Faculty of Advocates who also enjoy complete immunity from Freedom of Information legislation, making the two regulators of Scotland's legal profession a dangerous unaccountable duo of self regulators who are subject to no oversight other than a passing glance from the beleaguered, scandal hit Scottish Legal Complaints Commission, who have spent the last year rubber stamping investigations into crooked lawyers carried out by the Law Society & the Faculty.
SLCC Chair, Jane Irvine supports making the Law Society compliant with FOI legislation. Ironically, while the Law Society of Scotland & Faculty of Advocates are both exempt from Freedom of Information, and have threatened the Government to ensure their exemptions remain, the former Scottish Legal Services Ombudsman, Jane Irvine, who was appointed Chair of the Scottish Legal Complaints Commission, actually supports making the Law Society of Scotland comply with Freedom of Information laws, confirming this in a previous article I reported here : Legal Complaints Chief supports ‘consumer advantages’ of removing Law Society’s Freedom of Info immunity
Iraq War : SNP MPs badgered for Cabinet Minutes release on war ‘legal advice’ but now SNP Scottish Ministers will use public money to protect Law Society from FOI & fight release of Scottish Govt’s lawyers advice. This fight by the Scottish Government to keep information from the public which involves elements of the Scottish legal profession bullying the Government into submission over FOI protection for the public is in stark contrast to the SNP's position over the FOI battle for release of Cabinet meeting minutes from the Westminster Government in relation to the Iraq war, where, in a similar situation of legal advice against FOI release,UK Government lawyers based in Westminster also argued it would be against the public interest to release the Cabinet Minutes.
The now famous but still secret Cabinet Minutes containing references to the legal advice given to the Government on the legal basis of the war in Iraq, were ordered for release by England's FOI Tribunal which backed the original decision by the Information Commissioner for England & Wales, Richard Thomas, ordering the release of the Westminster Cabinet Minutes. However, Scotland has no FOI Tribunal, therefore the FOI Commissioner, and even applicants to the FOI Commissioner’s office must rely on going to the Court of Session in Edinburgh to force the release of information that Scottish Ministers may resist disclosing to the bitter end.
A senior official with one of Scotland’s consumer organisations branded the Scottish Government’s stance over the legal advice as “a grave mistake” and condemned the lack of attention to a clear public interest in making Scotland’s legal profession’s senior regulator comply with Freedom of Information legislation.
He said : "“The current arrangement consumers face with the regulation of legal services in Scotland, where the Law Society of Scotland & Faculty of Advocates are exempt from FOI legislation, yet the Scottish Legal Complaints Commission is FOI compliant, is not in the public interest.”
He continued : “The public interest would undoubtedly be served if the Law Society of Scotland and the Faculty were made to comply with Freedom of Information, but such a move will require action from the Scottish Government. It appears this will never take place, according to the documents which have now been disclosed, and even worse, it appears the Scottish Government have been deliberately misleading public enquiries on this issue for several years.”
Former Law Society Chief Douglas Mill threatened legal challenge against complaints reforming legislation LPLA Act which created the SLCC. This is of course not the first time the Scottish Government have been threatened with legal action by the Law Society of Scotland, where in 2006, during the Scottish Parliament’s consideration of the Legal Profession & Legal Aid Bill, which went onto create the Scottish Legal Complaints Commission, the then Law Society Chief Executive, Douglas Mill, threatened a legal challenge against the then Scottish Executive and the Scottish Parliament, claiming that lawyers had a human right to regulate complaints against their colleagues. I reported on that earlier threat of a legal challenge by the Law Society, here : Law Society of Scotland threatens Court challenge against Scottish Executive over LPLA legal reform Bill
A Scottish Government insider commented on his colleague’s frantic discussions over the Law Society & FOI compliance, saying : “The problem here is the many dark secrets of the legal profession will end up being revealed under FOI if they are made to comply with it.”
“If you find out through FOI your lawyer is a habitual crook and has rolled hundreds of clients, you are not going to use them or their firm for anything. I believe it is the desire of the Law Society and the profession to protect their secrets which we are seeing as the Government’s driving force of maintaining an indefinite exemption rather than groundless arguments of client confidentiality."
Clearly, the public interest would be served by making the Law Society of Scotland & Faculty of Advocates compliant with Freedom of Information legislation and continuing the present secrecy which allows both of these powerful regulators to remain outside the law and outside the reach of public scrutiny & accountability is only helping those within the profession who are exploiting such weaknesses for their own benefit against the public and all users of legal services in Scotland.