Thursday 18 March 2010

Go, and go quickly

Call for the President of the Law Society of Scotland to resign, from GLC's Principal Solicitor.

Referenda are a powerful means to provide certainty on important issues. But the democratic authority of any vote depends upon whether it has been conducted fairly and transparently.

The UK Parliament recognised this in enacting the Political Parties, Elections and Referendums Act 2000. Part VII of that Act ensures that any UK referendum is conducted fairly, with both sides of an issue having equivalent financial resources, and equal routes of access to influence the plebiscite with their literature or voting message.

The current Scottish debate on Alternative Business Structures or ‘Tesco Law’ is subject to two forthcoming votes: a Special General Meeting on 25 March, and a referendum thereafter. The body responsible for conducting these votes is the Law Society of Scotland.

The Law Society of Scotland is the Returning Officer, charged with operating and conducting the ballot of its members, and counting the votes cast at the SGM and referendum on Tesco Law. The electorate are 10,500 Scottish solicitors, who are members of the Law Society of Scotland.

Yet, have you ever heard of a Returning Officer deploying all of their financial resources and staff to influence a vote? Actually, not just influencing a vote, but aggressively and overtly campaigning for a particular outcome in that vote?

No? Well, incredibly this is what the Law Society of Scotland is doing. It even has a Scottish Government Minister speaking on its platform today to tell us why we must support the Law Society’s and the Scottish Government’s desire to allow external ownership of Scots legal firms by financial institutions and other non-solicitor bodies.

Now, I have no problem with Ian Smart travelling around Scotland to preach the false virtues of Tesco Law to Scottish solicitors. That’s his personal right as a solicitor, but not as President of the body which is conducting the poll of its members on this issue. On his own time and expense only.

Likewise, why is Lorna Jack, the chief executive of our Society, travelling around Scotland to encourage solicitors to vote for Tesco Law? Ms Jack is a paid official, she is not a Scottish solicitor. She has no vote. Why should she use her official position to influence the outcome of a democratic vote?

The Law Society’s view on Tesco Law is what its members tell it; not what the President, Council, or the chief executive think. Otherwise, what’s the point of holding of a democratic plebiscite?

Likewise, I have no problem with Janet Hood promulgating the benefits of Tesco Law to in-house solicitors. But not as Chairman of the Law Society of Scotland’s In-House Lawyers Group, using the Law Society’s resources and confidential membership data to influence the vote of members. Data which is not available to those solicitors who disagree with Tesco Law.

The Law Society of Scotland is presiding over a polling exercise whereby it is also the chief campaigner and PR agent for ‘Tesco Law’. It’s the judge, jury and executioner of the independence of our profession.

Our Office Bearers and officials should be neutral in this debate: they should permit their members to advocate for, or against, Tesco Law. They have failed to do so. Worst still, they have taken it upon themselves to dictate to members how they should vote. This democratic deficit can only be described as Mugabesque. It’s thoroughly unfair and brings our profession into serious disrepute here at home, and internationally.

When I was on a recent Human Rights mission in West Central Africa, the British High Commissioner explained to me how certain vested interests paid for votes by slapping a 5000 CFA note on a voter’s forehead. Such undemocratic practices were utterly deplorable and repugnant, but how different are they to some people who should be impartial using their positions as Office Bearers and officers to sway the vote on the future of Scotland’s legal profession?

Scotland’s solicitors have been placed in a deplorable position. Cometh the hour, cometh the man or woman. Leadership is vital in critical moments. I sincerely believe that our President has sold the purse; he has failed to provide leadership; he has failed to promote and safeguard the interests of our profession. He has been responsible for an undemocratic and unfair voting process. I believe that our President, Ian Smart should go, and go quickly.


  1. this is nonsense. i don't agree with your analysis. the policy of the Society was fixed ages ago at a General Meeting to which all solicitors were invited and eligible to attend, and voted on, so it would be perverse for the Society leadership now to say ok, as some groups of solicitors now have woken up to the issue ( an issue not ... See Moreinvented by the Society but thrust on it by a hell-bent government) and have actually started reading bits of the acres of info given out by the Society and assumed a moral high ground of their own making, we'll change the whole policy and go back to square one. blame Kenny Macaskill and David Clementi where it's due. Ian Smart got the hospital pass
    the big firms have jumped on a bandwagon - which i would do, perfectly honourably, if it were me. what the baying consumer lobby, and now the governments, ( but not the public who were reasonably happy) want is competition in the vague and vain hope it will give the public a better deal like with the buses or car manufacturers. the fundamental flaw... See More is that you would not want someone from tesco sawing your leg off or giving you an enema. likewise you don;t want a jiner making your will. the fix is that anyone providing legal services will have to be a solicitor or managed by a solicitor within a larger organisation - but that is a model already well recognised - Aberdeen Council, Lloyds Bank, The Fiscal service to name 3 of many. so for us high street guys it means putting the business hat on first to out-think the likely local competition - some of us have been doing that for a while - and doing show and tell with the public like we've never done before. and to be cynical, some of our colleagues are not up to it. I sit on client relations committees as does Derek, and we are not all shining beacons of efficiency and recitude now.

  2. Well you know he's going and that's why you're saying it - fact is, the President is only elected for one year and the current President hands over to the new President in a couple of months!

    You have forgotten to mention the Law Society's statutory duty with a dual role to not only promote solicitors interests but also those of the public in relation to those interests! You also forgot to mention that regardless of how the Law Society are dealing with this issue - it has been, continues to be, and will always be led by the consumer lobby backed by the Which Super Complaint and the Office of Fair Trading. Fight those if you want on your own!

  3. Austin: this is about the conduct of democratic polls, whereby the body holding those polls, counting the votes, is using everything in its power to secure one particular outcome. That's not a fair and transparent poll.

    Anonymous: we are well aware that Mr Smart is scheduled to retire his Office in May of this year. His lack of leadership, and lack of impartiality in the Office of President in conducting a democratic ballot is deeply regrettable, and it would be in the interest of the profession, and the Scottish public, if he was to stand down early.

  4. in the 3 examples austin gives none of these bodies given independent advice to the public -which is surely the concern of external ownership of public services?

  5. Austin, you are simply repeating the disingenuous line pedalled by Ian Smart. Solicitors employed by Aberdeen Council and the Fiscal service are in public service but do not offer legal services for gain or reward direct to the public. If they did they would be committing a criminal offence. I suppose solicitors working for LLoyds are only 43% public servants but again do not offer legal direct to the public.

    The questions of indemnity insurance, fidelity insurance, conflicts of interest and confidentiality remain unanswered.