Legal Services Bill : Consumer Focus & UNITE union differ over access to justice proposals as ‘Tesco Law’ comes under the Holyrood microscope

Consumer Focus Scotland gave evidence on proposed legal reforms. Continuing my reporting of the Legal Services Bill (dubbed by some as ‘Tesco Law’) which aims to widen Scots access to justice and yet again tackle the thorny question of regulating Scotland’s legal services marketplace, currently under the grip of the Law Society of Scotland, officials from Consumer Focus Scotland and the trade union, UNITE, attended the Scottish Parliament’s Justice Committee hearings earlier this week to be questioned on the Scottish Government’s proposals to tinker with the flawed, monopolised legal services market we have all been forced to use in Scotland for far too long.

Attending this evidence session was Sarah O'Neill, head of policy for Consumer Focus Scotland, and Fiona Farmer, a regional industrial officer for the Unite trade union, Scottish region.

Consumer Focus Scotland & UNITE officials attend Holyrood on Legal Services Bill :

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Fiona Farmer of Unite , in response to opening questions from the Justice Committee on what evidence is there that the Legal Services (Scotland) Bill is necessary and that the establishment of alternative business structures will benefit users of legal services in Scotland, said : “We have concerns about the marketisation of legal services under the bill, which we have outlined in our written evidence. We are not opposed to change, but we are concerned that opening up the market will result in inequality in the justice that is available to the public and to our members in Scotland. When the national health service in England was opened up to privatisation, we saw evidence of the most lucrative parts of the service being creamed off and the less attractive parts being left, which has caused problems in the sections concerned. There could also be conflicts of interest should the bill go ahead in its present form.”

After a question from Bill Aitken, the Justice Committee Convener on what could go wrong with the proposals contained in the Legal Services Bill, Fiona Farmer replied : “If we consider the privatisation of the NHS in England, the lucrative and attractive sections have been hived off, including children's services, acute services and surgery. Other services, such as care for the elderly and mental health services, are being left and are suffering financially as a result. The same detriments could apply in legal services here if the bill were to proceed. Certain sorts of claims and areas of justice would be snapped up, whereas services in other areas would become very costly. It would become much more expensive for our members to access justice, and we do not believe that access”

Sarah O'Neill, Head of Policy for Consumer Focus Scotland then entered the debate, giving the Justice Committee little doubt that CFS’s opinion was that the consumer interest was best served by opening up Scotland’s monopolistic legal services marketplace to competition.

Sarah O’Neill said : “Consumer Focus Scotland and our predecessor body, the Scottish Consumer Council, have long argued that there is a need to open up competition in the market for legal services in Scotland, and that we should consider new ways to deliver those services—subject to adequate consumer protections being put in place. We believe that lifting the existing restrictions through implementing the bill will bring consumers a number of advantages, including an increased choice of services, reduced prices, greater convenience and more consumer-focused services. Most important, we see potential in the bill to increase access to justice for consumers.”

“We have been concerned that much of the debate on the bill so far has focused on the benefits to big legal firms, external ownership by businesses and issues to do with legal markets where there is already healthy competition, such as conveyancing. We view the bill, together with other proposed reforms such as those in Lord Gill's recent civil courts review, as important for achieving modern, consumer-focused legal services in Scotland.”

Ms O’Neill continued : “The bill has the potential to lead to the development of entirely new structures in the voluntary, charity and advice sectors, not just in private practice and in services provided by solicitors and accountants, which we have been hearing about. Charitable and advice organisations should have flexibility in how they address unmet legal need, both in geographical areas and in areas of legal work where there is insufficient provision of legal services. In 2006, the legal markets research working group found that there are clear gaps in provision in areas of social welfare law such as debt, housing, employment and immigration. We would like to see the market opened up so that citizens advice bureaux, which we know want to have these powers, and other charities, can employ solicitors to work directly in those areas.”

As the debate rolled on, it became clear that while Consumer Focus Scotland supports opening up Scotland’s legal services market, there are gaps in the Scottish Government’s proposals to effectively regulate what might very well end up as the same regulatory mess caused by the inadequate powers created in the Legal Profession & Legal Aid (Scotland) Act 2007, which has seen over a year of complaints disgrace at the beleaguered Scottish Legal Complaints Commission, simply due to the sole fact that fully independent regulation over the legal profession was never enacted in the 2007 LPLA Act. Now, in 2010 with the Legal Services Bill, we are faced with the legal establishment, and other self regulators basically spinning the same tune, demanding to keep the powers of regulation for themselves, effectively shutting out the consumer once again, and unsurprisingly the Scottish Government are apparently happy to pander to those wishes of the professions once more.

The Trade Union UNITE on the other hand, have severe reservations about the Legal Services Bill, and take the opposite view to Consumer Focus Scotland saying that "The provisions of the Legal Services Bill will create an open-door for third parties with only profit on their agenda to influence, shape and dominate our justice system” and they do have a point, considering the many flaws of the Legal Services Bill as it currently stands, flaws which reflect back on the Scottish Government who produced the legislation, formerly called the “Legal Profession Bill” but renamed when the Law Society turned against it.

A spokeswoman for Consumer Focus Scotland replied to queries saying : “As we made clear in our response to the Scottish Government consultation ‘Wider Choice and Better Protection: a consultation paper on the regulation of legal services in Scotland’, we support the liberalisation of the legal services market in Scotland, subject to the necessary consumer protections being put in place. We believe that this will result in more consumer-friendly, high quality legal services in Scotland.”

Gilbert M Anderson, a solicitor with Glasgow law firm AndersonsLLP, rounded up the evidence session, claiming : "The public interest demands legal services should only be provided by a strong and genuinely independent legal profession which is thoroughly trained and disciplined in the practice of law."

Mr Anderson’s written submission to the Parliament on the Legal Services Bill can be read here : Gilbert M Anderson written submission (pdf)

Well, Mr Anderson, with respect, it is the Law Society of Scotland’s lack of enforcement of discipline, standards, and regulation which is constantly causing all these, admittedly half hearted attempts by Government to reform legal services in Scotland.

Perhaps if you clean up the Law Society, and hand over regulation and representing client’s interests to a fully independent authority, your claims might have more substance than the evidence of a distinct lack of access to justice in Scotland at present demonstrates fairly well. If it is so important to you the legal profession should be independent (as it is as important to me), then it should also be as important to you that protecting the public interest should also be independent, as the Law Society has never been willing, or able to do both as we both well know.

You can read the submissions from Consumer Focus Scotland here : Consumer Focus Scotland on Legal Services Bill (pdf) and the submission from UNITE trade union, here : UNITE Trade Union on Legal Services Bill (pdf)

The full report of the latest evidence session on the Legal Services Bill, including the contributions from Consumer Focus Scotland and UNITE can be viewed here : meeting is here : Justice Committee Tuesday 5 January 2010 Legal Services Bill Stage 1

All written submissions on the Legal Services Bill can be found here : Legal Services Bill written submissions

You can read my own submission on the Legal Services Bill, which deals mainly with regulation HERE (pdf)

All things considered, I do not feel the public interest and indeed consumer protection is being put first in the current set of proposals in the Legal Services Bill. What we are looking at is yet another regulatory mess created to appease the professions and industry, instead of prioritising those (us) who will have to pay to use these services.

Surely a little consumer protection would go a long way to giving us better standards and wider choice of legal services in Scotland, Mr MacAskill ? why the hold up on something so simple ?