Holyrood’s Justice Committee 'to wave through’ latest Law Society proposals for Legal Services Bill as Scots access to justice takes another tumble

Holyrood’s Justice Committee has a track record of saying YES to the Law Society. AS Holyrood’s Justice Committee prepares its Stage 3 consideration of the latest raft of amendments to the Legal Services Bill proposed by the Law Society of Scotland, consumer groups & critics contend access to justice is not expected to be significantly widened or improved by the passage of the Bill, now a weak shadow of proposals originally put forward by UK consumer organisation Which? and the Office of Fair Trading’s subsequent recommendations to break open the monopolistic Scottish legal services market which has long been dominated by solicitors & advocates.

You can read more about the Legal Services Bill at the Scottish Parliament’s website : Legal Services (Scotland) Bill: Committee page, the latest amendments lodged to the bill are here : 28 September 2010 (215KB pdf) & here : 30 September 2010 (167KB pdf)

The Law Society of Scotland’s most recent media release on their latest ‘proposals’ to amend the Legal Services Bill stated : “The Society has had constructive discussions with the Government and MSPs during the summer recess about the planned reforms to legal services provision in Scotland, which would allow non-solicitors to have a stake in law firms.”. Many of these ‘constructive discussions’ however relate to the Law Society’s demands it alone remains in charge of regulation, along with added controls over claims funds to compensate consumers as a result of poor legal services, and also the Society having the final say-so on exactly who or which company can provide legal services in the resulting ‘expanded’ legal services market should the Legal Services Bill become law.

The Law Society’s media release went onto quote its President, Jamie Millar, whose own law firm Lindsays is linked to a dishonest firm of Borders solicitors, said : “We have supported the general principles behind the Bill and believe that it will give solicitors new opportunity to adapt their businesses as they see fit to meet the demands of their clients. There has been a great deal of debate which has already led to substantial changes to the Bill, particularly on the percentage of ownership of legal services providers. At Stage 2, the Justice committee voted against 100% ownership and the Bill now states that there must be at least 51% ownership by solicitors and other regulated professionals.

“However there remain a few key areas where we think there should be further amendments. The legal profession has changed hugely in recent years and is much bigger, more specialist and is operating in a highly competitive, global marketplace. However even with these changes, we must ensure that clients continue to have the same level of protection, whether they seek legal advice from a traditional solicitors’ firm or an alternative business structure in the future.

Justice Committee Convener Bill Aitken MSP (Scottish Conservative) has frequently agreed with Law Society proposals to amend Legal Services Bill for further Society controls. Mr Millar continued : “The proposals currently contained in the Legal Services Bill would allow new business structures access to the Scottish Solicitors Guarantee Fund. While we think it is absolutely right that the protections offered to solicitors’ clients should be extended to those who go to a new legal services provider (LP), we believe all regulators should have as rigorous an inspection regime as the Society and also that the Society should have the power to monitor the operation of corresponding accounts rules by other approved regulators where necessary.”

The Society has also recommended that the Bill should take account of a potential breach in the ownership criteria of LPs, which the Bill states must be majority-owned by solicitors and other regulated professionals, due to unforeseen circumstances such as death or incapacity. It also encourages the Scottish Government to make sure that the public protections for clients of confirmation agents are as strong as they can be.

Millar said: “We are pleased that MSPs and ministers agree that will writers and confirmation agents should be regulated in order to assure the public of better service and protection. Indeed, the Legal Services (Scotland) Bill means that Scotland will be the first UK jurisdiction to do so. I commend the government for its approach and would again encourage ministers to make the rules governing confirmation agents as comprehensive as possible."

Communities Safety Minister Fergus Ewing frequently caved into Law Society demands to amend the Legal Services Bill. The Bill also proposes a new overarching Regulatory Committee within the Society. The Society however is concerned that as drafted, the Bill will create a split similar to that of the Law Society and Solicitors Regulatory Authority in England and Wales, which the Government, Justice Committee and the Law Society have endeavoured to avoid as the Bill has progressed. The Society agrees the Regulatory Committee should be independent from Council but has proposed changes to the Bill so that the committee would have autonomous decision making powers, but be accountable to the Society’s Council.

The Society has also proposed that amendments to the Solicitors (Scotland) Act 1980, to take account of the Legal Services (Scotland) Bill, should include registration and subscription by firm, currently done on an individual solicitor basis, to allow the organisation to update its processes and lead to potential benefits for members.

President of the Law Society of Scotland Jamie Millar again commented : “The Bill has opened the door to change some of the structures within the Society itself which will help improve the services we can provide for members as well as ensure that our regulatory processes continue to improve. We shall continue to press for amendments to ensure high standards in legal services once the Bill is enacted and that there continue to be proper protections for the public where things go wrong.”

Law Society of Scotland member solicitors & the Faculty of Advocates have long dominated Scotland’s legal services market with no competition. An official from one of the UK’s consumer organisations scoffed at the Law Society’s proposals and interference with the bill. He said : “I think this is a very poor showing from the Scottish Parliament, who have virtually said yes to anything the Law Society proposed. Given the Law Society and its member’s stranglehold over consumer’s access to justice in Scotland is the very problem the bill sought to remedy, I doubt Scots will see any improvements in legal services north of the border as a result of this bill being passed.”

A legal insider this morning branded the Legal Services Bill “a waste of parliamentary time” and went onto accuse the Law Society of yet another instance of regulatory capture similar to the influence the Society has exerted over legal profession’s ‘other regulator’, the much weakened Scottish Legal Complaints Commission. Regulatory capture Regulatory capture is a state of affairs which occurs when a regulatory agency created to act in the public interest instead acts in favour of its own members commercial or special interests that dominate in the industry or sector it is charged with regulating.

As things stand the Law Society of Scotland is the only regulator applying to be an ‘approved regulator’ in terms of the Legal Services Bill’s requirements for regulation of the resulting expanded legal services market. I reported earlier on the prospect of this widely seen anti-consumer development here : Christmas for Crooked Lawyers : Law Society say ‘make us approved regulator’ and we will continue to protect dishonest solicitors who rip-off clients

Consumers should be in no doubt as spectators to the Legal Services Bill’s progress have warned … there will not be a significant improvement in choice of legal services in Scotland as a result of the proposals as they now appear, with the prospect that several years from now, we will still be talking about a distinct lack of access to justice in Scotland for those the legal profession wish to keep out of court …

You can read my own coverage of the Legal Services Bill here : Legal Services Bill for Scotland - The story so far and decide for yourselves how much the Scottish Government's proposals for improving access to justice will really improve YOUR access to justice ...