Sunday 30 May 2010

GLC supports Scottish pre-action legal requirement in eviction cases

GLC supports the Scottish Governent's proposal of a pre-action requirement (PAR) for eviction cases in the social rented sector; although the elephant in the room is why not extend this approach to private sector evictions too?

We believe this approach could significantly reduce the number of tenants evicted due to rent arrears in the social rented sector. A PAR has been suggested in a recent Scottish Government consulation paper. Such an approach would require all social landlords to deal with the problem of arrears effectively at an earlier stage. It would also help ensure that court action was only raised as a last resort.

GLC believes the Housing (Scotland) Act 2001 could be amended to ensure that compliance with a PAR prior to raising an eviction action was necessary in order to ensure that proceedings were competent in the same way that service of a valid notice of proceedings is required at present. Failure on a social landlord’s part to comply with the PAR would therefore be a defence to the action on competency grounds.

GLC believes it is important, from a public policy point of view that social tenants are afforded the same protection as homeowners. The introduction or a PAR would bring the protection of social rented tenants in line with the protection being introduced for homeowners in the Home Owner and Debtor Protection (Scotland) Act 2010.

However, GLC is concerned that the Scottish Government's approach could give rise to unintended consequences, unless appropriate safeguards were put in place.  For example, we are concerned that the PAR could be seen as evidence that it is reasonable to evict in terms of section 16 of the Housing (Scotland) Act 2001. GLC is concerned that social landlords could argue that as they have complied with the PAR, and that as their tenants still had arrears, it would be 'reasonable' to evict. We believe that it is important that full consideration is still given to the requirements of section 16.

Although we hope the introduction of a pre-action requirement will reduce the number of cases raised in court we think care must be taken to ensure that the result is not an automatic assumption that all the cases that end up in court must be ones where nothing can be done to assist the tenant and that eviction will be reasonable in these cases.

We also think it is important that landlords continue to work with the tenant to solve the problem of the arrears, even after court action is raised. Our experience is that once the case has been raised in court some landlords become focused on obtaining a decree and are not as willing to negotiate repayment arrangements with tenants. We are concerned that the pre-action requirement may be seen as landlords as all they are required to do to assist a tenant. Instead we believe it should be seen as a minimum level of assistance that must be given before an action can competently be raised. Landlords should still be encourage to engage with tenants and work towards preventing eviction even after court action has been raised.

GLC's full response, led by Lindsay Paterson, Solicitor, to the Scottish Government's consultation is available online here.

Scottish solicitors reject Government's '100% Tesco Law' model

Scottish solicitors have backed a compromise motion on Alternative Business Structures (ABS) by 1,550 to 1404 votes at their Annual General Meeting; with the compromise motion securing the highest number of votes in support of any ABS motion at the Law Society of Scotland's AGM on Thursday 27 May 2010.  The compromise motion would permit ownership of law firms by non-legal professionals to a maximum of 25% of the business.

The motion was proposed by GLC's Mike Dailly, seconded by Govanhill Law Centre's Lorraine Barrie, and backed by the Scottish Law Agents Society among others. ABS has been dubbed 'Tesco Law' because it would enable supermarkets, banks, corporate investors, fund managers - and potentially even organised criminals - to own and control 100% of a law firm as an 'external investor': the Scottish Government's Legal Services (Scotland) Bill, as introduced, makes provision for a 100% external ownership model of ABS. 

The Council of the Law Society of Scotland's motion called for a reduced version of the Scottish Government's own ABS model, with no more than 49% of a firm being owned by external investors. The Council's motion was narrowly passed by 21 votes: 1486 to 1465.  At the meeting of Council following the AGM, GLC's Mike Dailly argued that the Society's policy on ABS now had no moral mandate standing the AGM, and that the will of the legal profession was clearly divided, and incapable of being said to be in favour of 49% external ownership.  Council accepted that there was now no clear consensus on ABS.   The Society's official AGM report is here (opens as PDF).

Mike's main speech proposing the compromise motion is here; for arguments explaining why 100% external ownership of Scottish law firms could result in significant consumer detriment and be contrary to the public interest in Scotland see here (2010) and also see here (2008).

Wednesday 26 May 2010

GLC moves to Orkney Street Enterprise Centre

After over a decade on Burleigh Street, Govan Law Centre has relocated two of its offices to Govan's new Orkney Street Enterprise Centre (OSEC), 18-20 Orkney Street, Glasgow, G51 2BZ (view a location map here). All of our telephone, fax and minicom numbers remain unchanged, and any mail sent to our Burleigh Street address will be automatically re-directed.

Orkney Street was orginally Govan's Burgh Chambers in 1867, before serving as the local police and fire station, then as Govan's burgh court, jail with 36 cells and headquarters of Strathclyde Police 'G' Division.  The iconic listed building was redeveloped with a £3.5m budget, led by the Glasgow South West Regeneration Agency, and formally opened by Sir Alex Ferguson in February this year.
OSEC has full conference, business support facilities, and disability access. GLC can be found in Unit 4 and 6.  Unit 4 is a ultra modern open plan office on two levels, with unit 6 hosting our national Education Law Unit, and providing board room/meeting room facilities.  

Tommy McMahon, Chairman of GLC's Board of Trustees said:
"We're delighted with the law centre's relocation to Govan's Orkney Street Enterprise Centre. This development represents a major investment in our service and will enable us to deliver a more streamlined and effective service to our community and clients. Our larger premises also give us the capacity to develop a number of exciting new projects".

GLC 's Principal Solicitor, Mike Dailly said:
"Our new offices present fantastic opportunities to develop all of our services.  Because our partner agencies, including Money Matters Advice Centre are located in OSEC, the residents of Glasgow South West now have one of the best 'one-stop' shops in Scotland. A single visit to OSEC can provide citizens with free legal advice and representation, prevention of homelessness services, money and financial inclusion advice, help and support to get back to work or into further education, and access to social work services.  We aim to co-ordinate all of these services, so citizens in Glasgow South West will only need to make one appointment to receive a holistic, high quality service".


Friday 14 May 2010

Call for Scottish register to create an inclusive and accessible pool of pro bono legal talent

Pro bono work offers a "huge width of potential" to help those excluded from legal services, the Lord Advocate said today. Elish Angiolini QC gave the keynote address at a conference hosted by her in the Scottish Government offices, entitled "For the Public Good: The Future of Pro Bono Legal Services in Scotland". 

The Lord Advocate told the conference that Scottish lawyers "have a long tradition of working to ensure that people are treated fairly and have their rights respected. The unfortunate reality, however, is that there are many people who cannot afford legal advice when they need it".

Speaking at the conference, Govan Law Centre's Principal Solicitor, Mike Dailly, made a call for a national, free, online pro bono Scottish ''register' to collate who was free to volunteer, the skills set they had, and which organisations had vacancies, and what skills they were looking for.  GLC believes that no one body should have a monopoly on co-ordinating or delivering pro bono work. Scotland needs an inclusive system whereby any advice agency, firm or local charity could tap into a pool of legal talent (which should include retired lawyers, practitioners and law students). GLC believes the Law Society of Scotland is best placed to provide this online, free, co-ordinating service in the public interest.

GLC also renewed our call for a proper Scottish public legal education strategy to empower citizens with self-help remedies; and tackle scam artists, which include all too many claims management companies (currently wholly unregulated in Scotland).  A key priority for GLC was the need to focus on public interest casework in Scotland: to undertake legal work and research that could change the legal landscape, and improve the lives of the Scottish public, particulary those on low and modest incomes and those subject to discrimination.

GLC congratulated the Lord Advocate for taking the lead in Scotland on the development on pro bono legal services.  The contribution from GLC's Mike Dailly is available online here.


Thursday 13 May 2010

Justice for Scotland candidates elected; please grant a proxy vote in favour of SLAS

John McGovern, solicitor-advocate and President of the GBA, Walter Semple, solicitor and GLC's Principal Solcitor, Mike Dailly have all been elected to the Council of the Law Society of Scotland in the Sheriff Court District of Glasgow and Strathkelvin.  Together with past GBA President, David O'Hagan, solicitor, they represent a strong contigent against the external ownership and control of law firms in Scotland, and the need for progressive Law Society reform.  The full results are available here.

GLC's Mike Dailly said: "I would like to thank all of the Glasgow solicitors who voted for me.  I will work with my colleagues to deliver progressive reform in the interest of the Scottish public and their independent solicitors and law firms. If any Glasgow solicitor wishes to raise any law society or justice related issue with me you can e-mail me on councilmrd @ (with 'council' in the subject line) and I will do my best to try and help".

"Together we have already changed the Law Society's policy on 100% external ownership.  Together we can go further. There is a growing consensus for a compromise position of capping non-solicitor ownership at 25%, but requiring those non-solicitor professionals to be working within the firm, and providing a service incidental to the work of the firm.  This would mean Scottish law firms remained independent, Scottish, law firms. If you want to support this reasonable compromise position please grant a proxy in favour of the Scottish Law Agents Society.  A proxy form can be downloaded here (opens as PDF)".

The papers for the forthcoming AGM of the Law Society of Scotland are available online here.

Sunday 9 May 2010

GLC to move compromise ABS motion at Law Society AGM

There has been great division within Scotland's legal profession over Alternative Business Structures (ABS). For example, a large majority of solicitors at the most recent SGM voted against the principle of external, capital, ownership of law firms – while there is no denying there remains support for this form of ABS within the legal profession. Accordingly, Govan Law Centre's motion is an attempt to square the circle, heal divisions, and unite Scotland’s legal profession around an effective and reasonable compromise.

A primary policy aim of the Legal Services (Scotland) Bill (‘the Bill’) is to enable greater legal services competition, innovation and growth in Scotland. We all support those principles, notwithstanding the Justice Committee has pointed out that no evidence has been presented to show our current system is deficient.

The strength of the Scottish legal system is that legal services are provided by independent firms of solicitors within a robust and invasive regulatory regime. A system where practitioners are more than sum of their business parts; operating as members of a common profession with an ethical framework instilled as undergraduate, postgraduate, trainee solicitor; enforced through peer pressure and our Law Society. A system where practitioners provide a quasi-public service and owe their first duty to the court.

The proposed motion would safeguard those core values, while facilitating innovation, growth and greater competition. Innovative ABS arrangements and partnerships could be entered into with non-solicitors. However, the motion would help ensure that any ABS remained a Scottish law firm by capping non-solicitor ownership or control at 25%. Clients of such an ABS would continue to enjoy legal professional privilege.

From a regulatory perspective, all of the concerns associated with the ability of corporate external investors and shareholders to own and exercise control, or influence, over an ABS would be resolved by requiring non-solicitors to be natural persons providing services as part of the business: for example, as surveyors, architects, IT experts, estate agents, accountants, or other professionals.

The arguments for, and against, external capital ownership have been well discussed and there is no need to repeat them here. As presently drafted, the Bill would create a liberalised ‘light touch’ regulatory system for Scottish legal services, relying upon a weak risk management system.

This form of ABS was conceived in the era before the UK financial services meltdown. For example, while the UK Parliament was enacting the English Legal Services Act in 2007, the consequences of a liberalised financial services market were only beginning to show, with a run on Northern Rock in September of that same year. It is highly doubtful that the UK Parliament would have embraced the current English form of ABS if they had known what we know now.

Certainly, financial services regulation in the UK has since moved towards an invasive, deep search, system. The economist John Maynard Keynes famously said: ‘When the facts change, I change my mind. What do you do, sir?’ The facts on ABS have changed.

Motion proposed by Mike Dailly, Govan Law Centre and seconded by Lorraine Barrie, Govanhill Law Centre.

"The members of the Law Society of Scotland in general meeting call upon the Scottish Parliament to amend the terms of the Legal Services (Scotland) Bill, presently before parliament, to the effect that at least 75% ownership and control of any entity authorised to carry out work which is reserved to persons qualified to practice as solicitors in terms of the Solicitors (Scotland) Act 1980 should (except in relation to any entity not vested in persons so qualified but which provides legal services as authorised by current law) be vested in solicitors who hold valid practising certificates free of conditions (as construed by reference to section 15(1) of the 1980 Act); and that no more than 25% of said entity should be owned or controlled by natural persons not being solicitors with a valid practising certificate, each of whom provides services which are in support of, incidental to, or complementary to the provision of legal services by the entity".