Scotland fights political interests for wider access, choice of legal services over protectionism of lawyers monopoly

09 Dec

Some readers were concerned enough over my last article on Bill Aitken’s comments in the legal services debate, to raise the issues with Annabel Goldie and the Presiding Officer of the Scottish Parliament. I will report here any developments I learn on such representations.

You can read that previous article here :

Conflict of Interest : Replacement called for Holyrood Justice Convener Aitken, too close to legal business interests for public good

Some readers also asked me if there were other conflicts of interest which may be affecting Mr Aitken in his policy of supporting the lawyers long held monopoly on legal services.

Well, I can tell you that Bill Aitken used to work for Eagle Star Insurance, who were the first insurers to the Master Policy Insurance of the Law Society of Scotland, and as you will probably gather, Mr Aitken’s previous work may well be powering ahead his current love & praise of the Law Society and its officials, who wish to retain the lawyers monopoly on access to justice.

Mr Aitken’s profile :

Bill Aitken was born on the 15 th April 1947 and educated at Allan Glen’s School in Glasgow. From 1965 until 1999 he worked in the Insurance Industry as an insurance undewriter and sales developerfor Eagle Star and AGF Insurance. He was also a District Court Judge from 1985 until 2000. In 1993 he was appointed Deputy Lord Lieutenant of the City of Glasgow. He is single.

Coming from a long background in the insurance industry, Mr Aitken willl know full well & understand, the insurance industry are one of the principle financial beneficiaries of maintaining the Law Society of Scotland’s monopoly on legal services in Scotland as anyone who works in legal services must pay into the Master Insurance Policy of the Law Society of Scotland – otherwise they don’t work.

Indeed, one of the restrictions placed on applications under the recently implemented Sections 25-29 of the Law Reform Act 1990 into the legal services market, is that applicants have indemnity insurance, which in practice must pay into the Master Insurance Policy of the Law Society of Scotland, now operated by Marsh UK.

A cosy arrangement, considering such applications must be passed by both the Lord President, and the Justice Secretary, who have in their careers, also paid into the Master Insurance Policy of the Law Society of Scotland and benefited financially from the closed shop of legal services maintained by the Law Society and the insurance industry …

It might have been better if Mr Aitken had declared such an interest along those lines, before making as much parliamentary praise as he gave for Law Society officials who last year threatened legal action against the Parliament over the passage of the LPLA Bill, or making such public protests at the possibility that Scots may be able to choose who they want to represent their legal affairs, not who the legal profession order them to choose.

Anyway, I await a reply from Annabel Goldie as to whether she will see fit to apply the same high standards impartiality she respectfully applied to herself last year when she resigned from the Justice 2 Committee so that J2 could be seen to have a more impartial Convener for the debate on the LPLA Bill. I will cover any reply in a further article.

Scotland differs from England & Wales when it comes to access to justice, because for now at least, the Scottish National Party do not support the full implementation of choice and free competition in the legal services market.

For now anyone who needs to get to court, or use critical legal services, must go through a member of the Law Society of Scotland. You simply have no other choice. There is no one currently allowed other than solicitors or advocates to perform such courtroom representation for you. Similarly, many everyday legal services which you may require at some point in your life also require the use of a solicitor. You simply cannot get away from it … currently to use legal services in Scotland, the ones you need – you must use a solicitor.

All political parties are aware of this. Indeed all the major political parties in Scotland, have lawyers or ex-lawyers in prominent positions within their parties, many of whom benefited financially from the decades old monopoly on legal services their profession holds over the public’s use of law in Scotland.

Kenny MacAskill MSP for instance, now an ‘ex-lawyer’, only came into politics in 1999, worked as a solicitor and senior partner in an Edinburgh law firm from 1984 until 2000.

Mr MacAskill, as a solicitor for some sixteen years, therefore knows full well the Law Society of Scotland’s monopoly on access to legal services which dictates who can & cannot obtain legal representation, and who is allowed, or is denied, access to justice.

It would be true to say, Mr MacAskill, like other currently practicing lawyer or ‘ex-lawyer’ MSPs in the Scottish Parliament, such as Annabel Goldie, David McLetchie, Nicola Sturgeon, and many more, have all benefited financially from the Law Society of Scotland’s closed shop on access to legal services, and the failure of successive Scottish administrations since 1990 to implement the Law Reform (Misc Provisions) Act (Scotland) 1990, specifically Sections 25-29, which were designed to open up legal services in Scotland to wider competition & choice for the consumer.

What did any of those currently practicing lawyers or ex-lawyers who are MSPs say about the failure of successive administrations to implement the 1990 legislation on widening choice of legal services ?

Nothing. Nothing at all. Not a peep from anyone.

It simply was not in Mr MacAskill’s, Ms Goldie’s, Mr McLetchie’s, Ms Sturgeon’s, or any of the other lawyer or ‘ex-lawyer’ politicians financial interests, and more importantly the interests of the Law Society of Scotland & the legal profession for any of them to say anything about it, or do anything about it and that is why it has taken seventeen years to implement Sections 25-29 to allow persons other than those who are members of the Law Society of Scotland to apply for rights of audience.

Of course, we all know now that Sections 25-29 were implemented in March of this year, so naturally, we should be seeing a crop of new entries into the legal services market, able to take up the public’s demand for choice, competitive pricing and well regulated standards of wider legal services but that has not happened, due to the restrictive, protectionist policy which surrounds the current Justice Secretarie’s view of the implementation of the seventeen year old legal market competition legislation.

An excerpt from Kenny MacAskill’s letter to cabinet colleague John Swinney, which was featured in the Herald last week :

Kenny MacAskill to John Swinney 26 July 2007 Sections 25-29 implementationYou [John Swinney] will be interested to know that the commencement of Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 came into effect on 19 March 2007. The Sections provide for rights of audience and rights to conduct litigation in the Supreme Courts to be granted to members of professional or other bodies, subject to approval in each case of a draft scheme embodying certain safeguards such as training programmes and indemnity insurance. The legislation does not provide for applications from individuals. Guidance has been prepared that covers in some detail the provisions to be contained in draft schemes and the consideration of applications. I hope this reassures you that action has now been taken to increase consumer voice in the supply of legal service providers.

So, that sounds straight forward enough. The impression is given it is fairly easy for someone, albeit a member of a professional or “other body subject to approval in each case of a draft scheme embodying certain safeguards such as training programmes and indemnity insurance” can apply under Sections 25-29 to enter the legal services market, and represent the public in court.

Well, this is not the case at all, and all applications which have been made under Sections 25-29, have so far failed, because, the Law Society of Scotland wants to retain its control and monopoly on the legal services market, who is allowed to enter it, and who is allowed to offer wider choice and competition for the public in their choice of legal representative.

It’s natural. The Law Society don’t want anyone else to be allowed to enter the legal services market, because if there is wider choice, the Law Society’s own member solicitors will lose out.

Wider choice of legal services means not having to pay the likes of £150+VAT for 3 lines of text on an A4 ‘lawyers letter’ or £60+VAT for a single email reply from your lawyer … because of course, wider choice will bring entrants in to the legal services market who wont be charging those kinds of fees.

How about all those expensive wills, conveyancing, poorly performed court work & case preparation, bad financial advice, and many other poor services clients get from lawyers, who have even gotten away with mortgage mis-selling because the Law Society of Scotland let them off the hook ?

Well, all that would be a thing of the past if the legal services market were opened up properly, to the standard of the recent OFT recommendations for wider access to legal services. Increased competition, the entry to the legal services market of firms willing to offer expert legal services at competitive prices, and crucially, a fully independent legal services regulator (not the Law Society of Scotland) with strong powers to ensure the highest standards of practice in the opened legal services market, would give the Scottish public the rights of access to justice, access to legal services, and unrestricted choice, which we deserve in Scotland.

To be fair, Kenny MacAskill wants to open up the legal services market in Scotland, but he doesn’t want to open it up very much, and it is difficult to ascertain Mr MacAskill’s current view on wider choice of legal services, because he changes his view so much, from press reports on a ‘Scottish solution’, to parliamentary debates, to misleading letters to cabinet colleagues

The SNP did not implement Sections 25-29. The previous Scottish Executive did that, albeit a bit too late in the day after some eight years of rule.

If anyone asked me now whether I think the SNP would have implemented Sections 25-29 if they had not been implemented by the previous administration, I would say – No, the SNP would not have implemented Sections 25-29 of the Law Reform (Misc Provisions) (Scotland) Act 1990.

If anyone asked me now whether I think the SNP would have passed the Legal Profession & Legal Aid (Scotland) Act 2007, I would say – No. On the basis of the available evidence and conduct of the SNP in the legal services debate, an SNP administration would not have passed the Legal Profession & Legal Aid (Scotland) Act 2007.

Some members of the Scottish National Party appear not to want the Scottish public to have free choice of quality & well regulated legal services, and those elements of the SNP who do not want to give full choice to the Scottish public, have supporters in their cause – the Scottish Conservatives.

The Scottish Conservatives do not want to break the Law Society of Scotland’s monopoly on access to justice. Members of the Scottish Conservative party have openly protested in the media against breaking the lawyers control over legal services, and have made the same protectionist statements in the Scottish Parliament.

Strange, the Conservatives would wish to maintain a business monopoly, when successive Conservative Westminster administrations have broken up long established monopolies & sold them off to the public, promoting wider competition and public choice in those business sectors.

The legal services sector however, is a different matter, and the Conservatives wish to protect the legal profession’s monopoly on access to justice, principally, because of the financial and political influence the legal profession hold in public life today.

For an industry such as the legal profession to be allowed to order you, the public, to take what you are offered as a legal representative, and be forced to pay the prices the legal profession itself dictates to you, is anti competitive, monopolistic, and dishonest.

For an industry such as the legal profession, to be allowed to regulate itself, ensuring that there is no proper investigation of complaints, no transparency or independent regulation, no accountability, no compensation, no chance of recovery, no chance of making a claim, no chance of outside help, when you receive substandard legal services, or incur huge financial losses through the negligence of one of its members, that is an industry ‘unfit for purpose’, regulated by itself in the common practice of utmost prejudice against the public.

Kenny MacAskill and Bill Aitken’s support of such a monopoly is not good for Scotland, and not good for the public’s right to choice in access to legal services & justice.

Kenny MacAskill once said in the Scotsman in February 2006 : “There are good reasons for having a monopoly-regulated profession; otherwise, how do you regulate those not part of the organisation?”

The Law Society of Scotland, and it’s self regulation of solicitors, is no model for regulation, or a nation to follow with any degree of confidence …

The Law Society of Scotland has done a good job of ensuring that clients receive no proper regulation when making a complaint or a claim for damaging losses at the hands of negligent, crooked or incompetent solicitors.

That is no good excuse or reason to maintain such a monopoly, based upon such a poor regulatory model, Mr MacAskill, and is surely not a safe basis for the position of Justice Secretary to support maintaining such a monopoly …

Wider choice of legal services means a break from the past, a break from high fees for poor legal services, a chance for better, independent regulation, a chance to break political influence in politics which has purposely delayed public interest legislation for decades, a chance of transparency, a chance of honesty & accountability, a chance of better standards, and a chance for anyone to obtain access to justice and legal services outwith the dictates of the legal profession itself.

Give Scotland its right – Give Scotland wider choice, better independent regulation and higher standards of legal services the public can trust, use, and rely upon.

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Posted by on December 9, 2007 in Politics, Scots Law, Scottish Law


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