Rebuff by filibuster

GLC's Principal Solicitor's response to the Law Society's refusal to add the "dual function" question on the ballot of Scottish solicitors later this month.

In the brilliant 1939 Frank Capra movie ‘Mr Smith goes to Washington’ Jimmy Stewart holds up proceedings in the US Senate by filibustering. The filibuster is a dilatory motion to prevent something happening, which often employs an arsenal of objections and obfuscation. While Senator Smith was standing up for democracy, sadly, President Smart is filibustering to deny Scottish solicitors their say on the threat to the independence of our profession in the referendum commencing 22 March onwards.

In the interests of transparency, I have reproduced (below) the formal response from the Law Society’s Chief Executive last night, to yesterday’s requisition for a referendum question on: “Should the Law Society of Scotland as statutory regulator continue to be responsible for promotion of the interests of, and the representation of, solicitors in Scotland?”. Regrettably, our President, Vice-President and Chief Executive propose to kick this question into the long grass. The reasons for this decision can only be described as filibustering.

The Society have said they must ‘formally’ know what is meant by ‘promotion’ and ‘representation’ in order to ‘discuss’ the requisition. Yet Article 24 of the Constitution clearly mandates Council to hold a referendum on a question if at least 50 solicitors make a requisition. The only discussion is timing. The absurdity of the Society’s position is further exposed when one considers that ‘promote’ is the terminology used in section 1 of the Solicitors (Scotland) Act 1980, while ‘represent’ is the expression used by the Society itself.

Another reason given for not treating the future of our profession as urgent is because it might be a bit pricey in expense claims for Council members to meet next week? Astonishing. It might be helpful for a full disclosure of all expense claims so we ascertain why we are too poor to convene an extra meeting.

Finally, we are told that the position on ABS (Tesco Law) needs to be ascertained before we can consider changes to the structure of our regulatory and representative body. Lorna Jack says this is because the independent representation issue is subsidiary to the ABS issue. Yet, in today’s statement from Ian Smart, Ian quite rightly concedes that the two issues are ‘distinct’ and separate.

In truth, there is no cogent reason why the ‘dual function’ question cannot be added to the ballot paper. Justice delayed is justice denied. Likewise, filibustering over the democratic and constitutional rights of solicitors is wrong.

"Dear John

ARTICLE 24 REQUISITION

I confirm receipt of your letter together with the 65 signed notices requesting a referendum in terms of Article 24 of the Constitution of the Law Society of Scotland and your request under Standing Order 7(1)(a) asking me to request that the President call a special meeting of the Council. Ian Smart, President; Jamie Millar, Vice-President and I have agreed that your requisition will be discussed at the scheduled Council Meeting on Thursday 25th March. Council will then make arrangements to hold the referendum thereafter.

The President asks that prior to the papers being issued to Council for this meeting that, on behalf of the signatories to this requisition, you formally advise him of what is meant by "promotion" and "representation" as contained within your proposed question and the kinds of activities that you see falling within those terms. These explanations would assist the Council's discussion on the 25th March.

For the avoidance of doubt, the Council's proposed referendum is not in connection with the provisions of the Legal Services Bill. It will ask whether ABS has the continued support of the Profession. It directly responds to the issues raised regarding legitimacy of the 2008 vote which established the Society's policy and allows one member one vote in a secret ballot as you and others have suggested should be done. This issue needs clarification before any subsidiary issue, which arises as a result of s92 of the Bill, is dealt with, not least because some in the Scottish Law Agents Society believe that the referendum result may lead to a change in Government policy and the Bill as currently drafted. Partly in consequence of that, we have undertaken to them that the Society's referendum result will be known before the Stage 1 debate on the Bill, likely to take place in mid April. We do not therefore wish to delay the Society's Referendum which we have this week instructed ERS to deliver.

Cost must obviously however also be a consideration. The referendum planned will cost less than 40p per member. The cost of running a second referendum in the same way has been balanced against the cost associated with attempting to secure an additional meeting of Council before 25th March.

For information, our understanding, is that the Society has held referenda before, once in the 1980s in relation to the setting of advertising rules and once in the 1990's in relation to a levy which was raised to carry out an advertising campaign.

Kind regards

Lorna Jack"

Referendum on whether Law Society should represent solicitors

This afternoon, solicitors from a wide range of legal firms across Scotland required the Law Society of Scotland to poll its 10,500 members on whether it can continue to represent and promote the interests of solicitors, in addition to its statutory regulatory function.

Sixty-four solicitors from firms in Glasgow and Edinburgh have signed a formal 'requisition' which compels the holding of a referendum under the Law Society of Scotland's constitution. The Glasgow Bar Association, MacRoberts, and Govan Law Centre are concerned that the Law Society cannot continue in its 'dual function' as both regulator and representative of solicitors in light of the Legal Services (Scotland) Bill.

Section 92 of the Bill gives the Scottish Government unfettered power to set the number of non-solicitors on the Law Society's ruling 'Council', as well as setting the criteria for such appointments. Solicitors believe this ends the independence of the Law Society, and requires a split in representative and regulatory functions, as has already taken place in England and Wales.

In an attempt to address a Special General Meeting later this month over the proposed 'Tesco Law' provisions of the Bill, the Law Society agreed last week to hold a referendum on Alternative Business Structures ('Tesco Law'). However, this referendum would be restricted to 'Tesco Law', and today's move will ensure that the profession are also polled on the more fundamental question of whether the Law Society of Scotland can continue to represent solicitors. The President of the Law Society has been asked to convene an urgent meeting in order to include this question on their own referendum ballot, due to take place later this month.

The President of the Glasgow Bar Association, John McGovern, Solicitor-Advocate said:

"Law Society reform is a major feature of the Legal Services Bill. It is vital there is a referendum to allow the profession to decide whether, given the threat to our independence from government that the Bill poses, it still thinks the Law Society should continue to represent, as well as regulate the profession".

David Flint, Partner, MacRoberts LLP said:

"We believe that the views of individual solicitors must be ascertained on this critical issue as recent debates and polls suggest that the Law Society Council and Executive may be out of touch with members and an early referendum will allow members to have their say in a democratic fashion."

Mike Dailly, Principal Solicitor, Govan Law Centre said:

"The Law Society's role as both regulator and representative of the legal profession is rendered untenable by the Legal Services (Scotland) Bill. Solicitors should be free to choose their own independent body to represent them in the same way that workers are entitled to choose a trade union to promote their interests. A referendum will enable that choice".

Royal Faculty debates the Legal Services (Scotland) Bill

Tonight, Glasgow's Royal Faculty of Procurators hosted an informative and passionate debate on the future of Scotland's legal profession in relation to the Legal Services (Scotland) Bill.

Chaired by the Dean of the Faculty, Paul Carnan, the audience of experienced practitioners heard from Alan Campbell, Managing Partner, Dundas & Wilson LLP; Mike Dailly, Principal Solicitor, GLC; John McGovern, Solicitor-Advocate and President of the Glasgow Bar Association; and Ian Smart, President of the Law Society of Scotland. A wide ranging debate took place with excellent contributions from the audience.

Representatives from the Scottish Law Agents Society advised participants that the Parliament's Justice Committee had announced the Stage 1 report on the Bill would be delayed to allow the SGM on the ABS (Tesco Law) aspects of the Bill to take place.

The contribution from GLC's Mike Dailly is available here.

Referendum: time to protect the independence of Scotland's solicitors

The President of the Law Society of Scotland, Ian Smart, confirmed to BBC 1's Politics Show yesterday that an urgent secret ballot of every solicitor would take place, to determine whether the Society should continue to support the 'Tesco Law' provisions of the Legal Services (Scotland) Bill. The Bill would enable non-solicitors to own and control firms of solicitors, and give the Scottish Government the ability to set the number of non-solicitors, and criteria for appointment, on the Society's ruling Council.

GLC's Principal Solicitor challenged the case for Tesco law with Mr Smart on the Politics Show, and argued that the Bill would effectively end over 500 years of solicitor and legal profession independence. Mr Smart's dismissed fears upon the basis that 27% of all solicitors were already employed by banks, companies, and local authorities, and insisted that 'no one would suggest these solicitors were not independent'.

However, GLC's position is that the 27% of solicitors who are already employed by businesses or councils, do not provide advice to the public. They are in-house lawyers providing a specialist service to one client only, the entity that employs them, and therefore, this defence misses the point. The concern is that if the Bill is passed vested corporate interests would be able to provide solicitor services direcly to the public, and those services would not be independent. You cannot have 99% independence, and allowing businesses with track records in unethical and immoral practices to control access to justice is a receipe for moral hazard and disaster.

The debate on the BBC Politics Show can be watched here (105 mins in)

Today's The Scotsman article on this issue is available online here.

Unlawful tenancy premiums: a tenant's perspective

Here, GLC publishes a client's experience, in his own words, of being required to pay 'service charges' when he let a flat in Glasgow, and how he was able to obtain a full refund.

"When I moved to Glasgow 2 years ago I needed somewhere to stay. Having found a flat in the city through an agent, when I went to sign for it there were the usual rent in advance and deposits to pay but the agent also added £235 for a “service charge”. When I challenged this I was told it was to cover “preparation of the lease, credit checks, preparation of the furniture inventory” and other items they could not remember. It was also made clear that if I did not pay it then they would not sign me up for the tenancy and the whole search process would start again".

"I signed up and paid the £235 but decided to check on its legitimacy while I was a tenant. The charge is clearly a premium which is an unlawful charge in Scottish law. Not only that, but charges to the tenant for preparation of the lease are explicitly prohibited in Scottish law. At the end of the tenancy I again challenged the service charge and requested its return. The manager of the agency advised me that they were free to charge what they liked and it was a legitimate charge. He is wrong on both counts".

"Govan Law Centre clarified the legal position and agreed to contact the agent for me. At this point the agent offered to return £120. This was returned to them requesting a return of the full amount. They later offered £120 again which was again returned and an action for payment was raised at the Sheriff Court under the small claims system".

"The immediate response was for the agent to refund the charge in full and the costs of lodging the claim with the court. However they still maintain this is a good will gesture and they are entitled to charge premiums in this way. Interestingly the letter says “any prospective tenant has a choice whether they wish to take up the services we offer” so clearly they still intend to refuse tenancies unless this premium is paid".

"The message from this claim is that agents and landlords will probably hold out to the bitter end but if challenged through court, will refund your money."