The Scottish legal profession's propaganda war against deregulating the Scottish legal services market heated up today with salvoes fired from both the Law Society of Scotland and the Faculty of Advocates against the Which "super complaint" to the OFT calling for an inquiry in to access to legal services in Scotland.
The legal profession are of course, unhappy that 'Which" have made a complaint to the OFT on the closed market of legal services in Scotland, where members of the public must use the services of a solicitor for legal services.
Predictably, the Law Society of Scotland and it's allies mounted a quick publicity war against any thought the public may harbour over wishing wider access to legal services in Scotland by means of other than using solicitors ... and we have seen many articles since, written by both sides in the debate.
Roy Martin QC, the Dean of the Faculty of Advocates begin the latest round of counter claims on implementing the Clementi reforms in Scotland, with a story in the Scotsman newspaper today claiming "ACCESS to justice would come under "serious threat" from deregulation of the Scottish legal services market, as proposed by the Which? super complaint to the OFT"
The Dean of the Faculty's claim, is of course, nonsense.
The Dean should know all about access to justice of course, as his colleagues in the Faculty and the Law Society of Scotland have been controlling & restricting public access to legal services since time & memorial.
Why ? because if you want to get to court, or if you need to use legal services, you have to go through a solicitor or an advocate, and pay them for the services you use. There is no alternative in the current world of legal services in Scotland, and it doesn't take a rocket scientist to understand from that simple explanation that the legal profession will obviously fight any changes to it's monopolistic business model, because that's the way they make their money from you.
For example. what if you have a case against the legal profession itself or a case that may impact on legislation the legal profession or judiciary do not want changed ? - chances are you get nowhere, and your injustice will continue for years, or perhaps never be resolved - simply because it's not in the interests of the legal profession to give you access to legal services, or access to justice.
Try getting a lawyer to sue a lawyer - or try making a complaint against a member of the legal profession or judiciary, then you will see just who controls access to Justice, certainly not the public, and far too many politicians, from ALL parties, have stood by for too long, knowing this full well.
The legal profession have certainly had some interesting allies in their quest to keep the legal services market for themselves, as I revealed in an earlier article Lord Advocate - Lord Hardie, actually recommended repealing Sections 25-29 of the Law Reform (Misc Provisions) Act 1990, which if implemented at the time, would have broken the lawyers monopoly on legal services and opened up access to justice for everyone in Scotland.
If anyone wants to read a few experiences of people when it comes to access to justice, they can look to our own Scottish Parliament's web site at :
Justice 1 Committee Regulation of the Legal Profession Inquiry 2002 & Justice 2 Commitee LPLA Bill Inquiry 2006 - which led to the passing of the Legal Profession & Legal Aid (Scotland) Act 2007
The Scottish Consumer Council's excellent report on how access to justice stacks up against the legal profession & it's current monopoly on legal services can be read here in pdf format : Scottish Consumer Council Report - Complaints Against Solicitors
Douglas Mill, the infamous Chief Executive of the Law Society of Scotland, couldn't bare to be left out of the publicity war today either, and launched into the Which super complaint issue by claiming "The working group concluded that that overall the evidence backed the case for non-intervention in a market which is balanced by supply and demand. It is disappointing that Which? has produced a document which has no evidential base and contains fundamental errors, and which does not contribute in a meaningful way to the debate on such an important topic as the legal services market in Scotland. The society believes that the OFT should take no action on the super complaint."
Perhaps it might have been a good idea to ask Douglas Mill, the Law Society of Scotland Chief Executive why he felt solicitors human rights were in breach simply because they were going to lose the right to handle complaints against their own colleagues - the reason Mr Mill publicly threatened the Scottish Executive & Parliament last year with Court action if the LPLA Bill was passed - now there's a real access to justice issue !
Here's Douglas Mill in an earlier article, ranting on in a somewhat suicidal manner about critics of his beloved membership and stewardship of the Law Society of Scotland for all these years .. bringing in 5000 plus complaints a year against some 9,500 solicitors ... well, hasn't he done well now !
Isn't it a pity it's taking an English based organisation to protect the public's interests in Scotland and open up the debate on access to legal services ? but it does show the power of the Scottish legal profession to keep its monopolistic business market intact and thwart change as much as possible to-date.
However, perhaps the intervention by the Which consumer organisation raises the question, where are the SNP led Scottish Executive in this affair ?
Why is our own Scottish Government not doing more to open the access to legal services market in Scotland with a full implementation of the Clementi reforms which have been quite successful in England & Wales .. and why has no policy yet been announced on tackling the issues of injustice caused by the legal profession over the years , the SNP, for so long in opposition and now in power at the Executive, knows full well of but stands by watching - as a witness to abuse.
Is this a case of the legal profession intervening again with the Scottish Executive and interfering in areas of reforms for the public interest, just to retain their money making capabilities via a monopolistic legal services market ?
Is it not time to do something good for the public interest regarding the legal services market in Scotland, Mr Salmond ? rather than allow it to be run & maintained by the legal profession itself to make money and control the public's access to justice ?
Following article from the Scotsman newspaper :
Does Which? know what it is asking?
ACCESS to justice would come under "serious threat" from deregulation of the Scottish legal services market, as proposed by the Which? supercomplaint to the OFT, the Faculty of Advocates has warned.
Which?, the UK's largest consumer body, wants the OFT to recommend the removal of current restrictions, including those on non-legal ownership of firms and access to advocates, arguing that existing business structures and working practices restrict consumer choice and may be inflating prices.
Which? also wants an independent Scottish Legal Services Board to be established, to either oversee regulation of solicitors and advocates, or take regulation out of the hands of the Faculty of Advocates and the Law Society altogether. In its official response the faculty argues that Which? failed to show the legal services market in Scotland is "significantly harming" consumers. Its response warns the consumer body has not grasped that introducing so-called Tesco law would undermine the future of smaller firms throughout Scotland.
"Externally owned practices would be likely to be interested principally in the relatively straightforward transaction which can be 'commoditised'," the response states. "They would be unlikely to be interested in intractable or difficult cases, which professional firms currently handle. They would, in particular, be unlikely to be interested in such matters in relatively remote or sparsely populated parts of the country."
In an interview with The Scotsman, Roy Martin QC, the dean of the faculty, says the supercomplaint appeared to be trying to transpose English reforms proposed by the Legal Services Bill, possibly out of a desire for a uniform regulatory system across the UK.
"The supercomplaint openly promotes the creation of a Scottish Legal Services Board, which as far as can be seen would be identical to the one being created south of the Border with the same regulatory powers and functions," he says.
"In essence our position is that it is not appropriate, because of a number of factors, simply to translate the arrangements which are 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.
"Given the distinctive characteristics of Scotland and the Scottish legal profession, the desire for regulatory consistency would certainly not be a justification for the changes which they suggest."
Martin says that firms of solicitors, and the advocates that they instruct on behalf of their clients, are already providing access to justice "as efficiently as they can", considering Scotland's geography.
"It is interesting that the supercomplaint almost entirely focuses on transactional type business, such as conveyancing, rather than acknowledging that many of the services provided by the legal profession throughout Scotland are related to a whole range of needs, such as criminal court representation, civil court representation, family disputes, and custody of children," he says. "The fact that these things are done differently in Scotland and in the interests of justice ought to be done differently is a reason why we should not simply copy the regulatory arrangements which may be found to be appropriate in England and Wales."
The Faculty has also questioned whether the supercomplaint - made under the terms of the Enterprise Act 2002 - should be calling for changes to regulation that would require primary legislation to be passed by the Scottish Parliament. Its response also suggests that any action made by the OFT as a result of the supercomplaint "may not be lawful", as Which? has not fulfilled the requirements set out by section 11 of the act.
Martin adds that changes to the working practices of advocates would need to be considered by the Lord President, who has a role in regulating the public office of advocates.
In its response to the supercomplaint, the Law Society has also called for no action to be taken by the OFT. However, its position is complicated by the fact that some larger firms support the introduction of alternative business structures - if only to ensure they can have a level playing field with their English counterparts.
"The society is keenly aware that there are a number of interests which must be carefully balanced, including access to justice, competition in the legal services market and consumer protection," says the Law Society's chief executive, Douglas Mill. "There are a number of different proposals and business models currently under discussion, and the society is actively raising the debate to ensure that whatever changes are made to legislation, these competing interests are taken into account. The society is consulting with the solicitors' profession to gain their views of the Bill before the Westminster Parliament which will apply to England and Wales. It held a successful conference in London with its members based there to spark the debate and gain important feedback."
A major conference on alternative business structures is planned in Edinburgh on 28 September, and the society says it is also keen to see work by the Executive to build on the findings of last year's Research Working Group report, which recommended there should be no intervention in the market.
Mill adds: "The working group concluded that that overall the evidence backed the case for non-intervention in a market which is balanced by supply and demand. It is disappointing that Which? has produced a document which has no evidential base and contains fundamental errors, and which does not contribute in a meaningful way to the debate on such an important topic as the legal services market in Scotland. The society believes that the OFT should take no action on the supercomplaint."
If the OFT does decide to take action, however, then the society has called for research to be commissioned, to identify how the legal services market operates in Scotland, bearing in mind "the impact upon consumers" of the proposals set out in the super-complaint. A spokesman for the OFT says it is required to respond to the supercomplaint from Which? by 31 July, but he adds that he is unable to comment further.