Thursday 11 March 2010

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


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"


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