Scots face wait on access to justice as lawyers, politicians go slow on legal market reforms

25 May

The campaign to open the Scots legal services market scored another victory last Thursday at the Law Society of Scotland’s Annual General Meeting, where in a shock vote against the policies of Law Society Chief Executive Douglas Mill , around 853 solicitors voted in favour of opening up the legal services market which should ultimately ensure wide access to justice and free choice of legal representatives for all Scots, similar to the Clementi reforms implemented in England & Wales.

I very much support the opening of Scotland’s legal services market, in order to widen public choice in legal representation, and have reported on the campaign to open up the legal services market in previous articles, which can be viewed here : Opening the Scots legal services market

There are of course, still a great many obstacles to overcome in implementing what will be a historic change in the Scots legal services market, which for now, still forces anyone who wants access to the courts to go through a solicitor or advocate, who are members of the Law Society of Scotland.

Some of those obstacles include resistance from elements of the Law Society itself, who favour retaining control of their hugely profitable monopoly on access to justice, and also resistance from political allies, who themselves, are formerly practicing lawyers with a calling to protect their colleagues profitability.

While the Law Society will no doubt be eyeing ways to delay the implementation of legislation which will allow the public wider choice of legal representatives, the Scottish Government’s own shifting policy on “Tesco Law” has seen some curious shifts over the past year or so, with the current Justice Secretary Kenny MacAskill expressing resistance himself to giving the public a much wider, and more dependable choice of legal representatives.

A previous article I note from Scottish Law Reporter, covering the SNP’s wavering policy on “Tesco Law” can be viewed here : Leaked letter from MacAskill to Swinney on legal services ‘misleads’ Cabinet Secretary Swinney & Parliament on legal services admissions

I think Mr MacAskill’s view of things, at least those expressed in Ian Fraser’s article in the Herald Scots Government has ‘no appetite’ for legal change do give cause for concern that some in the Government, at least those who are lawyers themselves, don’t want to give the public the reforms which the rest of the UK will enjoy in terms of being able to have wider choice of legal services & access to justice

The wholly unnecessary feet dragging by both the SNP Scottish Government and the Law Society are simply aimed at prolonging the public misery of lack of access to justice & legal services until the legal profession feels it can ween itself away from charging clients what they like for poor quality & unsafe legal services with no accountability when things go wrong.

We are over a year on from when the issue was first raised by the early 2007 Which? campaign group as a “supercomplaint” to the Office of Fair Trading, which culminated in the OFT making recommendations to open the legal services market in July 2007

Now, at the end of May 2008, there is still little obvious movement on the part of the Scottish Government to implement public freedom of choice for legal representation .. and many in the Law Society still see many months ahead, even years, before the Scots public can choose their own legal representatives without having to be forced into using a solicitor who is a member of the Law Society of Scotland.

Perhaps I wonder, if Mr MacAskill and the Law Society wish to take a leaf out of the seventeen year wait to implement Sections 25-29 of the Law Reform (Miscellaneous Provisions) Act 1990 Law, which sought to do much the same as the recommendations from the OFT to allow professionals other than solicitors & advocates the rights of audience & representation in Scotland’s courts.

However, Sections 25-29 were only brought into law in March 2007 after an intense campaign to expose the Law Society of Scotland’s part in holding back that particular legislation, which even though now implemented, has still to see anyone other than a Law Society member allowed into court, all because Mr MacAskill and the Lord President don’t seem to want it …

Why should we be waiting ? Scots need access to justice now, not have their access to justice controlled by the legal profession itself …

The Herald reports :

Legal firms vote to back historic ‘Tesco law’ partnership

LUCY ADAMS, Chief Reporter

Supermakets and banks could run or work in partnership with Scottish legal firms in future, following a “historic” vote taken by more than 1000 lawyers last night.

Some 853 solicitors voted in favour of opening up the legal services market yesterday following consultation on what has been dubbed “Tesco Law”.

Most of the votes were cast by proxy, but only 152 voted against the move at the Law Society of Scotland’s annual meeting.

The decision, which could lead to external ownership of law firms, partnerships between solicitors and non-solicitors, and organisations such as banks and supermarkets providing legal services including conveyancing and will-writing, will require further consultation before being put forward for legislation.

The move follows the lodging of a “super complaint” with the Office of Fair Trading (OFT) 12 months ago by Which?, the consumer watchdog, which said the current regulation of Scottish legal firms was hindering competition in the market, restricting choice and pushing up prices.

Kenny MacAskill was obliged to act after the OFT upheld the calls for a reform of Scotland’s legal services market.

Following the Clementi Review in England and Wales, legislation was introduced to open up legal services there. This will be enacted in 2010 and both the AA and the Co-op have already moved to establish legal services companies.

Richard Henderson, president of the Law Society of Scotland, said: “This is a historic decision. The profession has been asked by the Scottish Government to decide on its future direction and I think that we have risen to that challenge today by voting in favour of change.

“There has been a great deal of thought and discussion surrounding alternative business structures. The society’s council consulted the profession and it was apparent from the responses that there was an appetite for change within the legal profession.”

He added: “This is only the first step in what will be a lengthy journey. The society will continue to work closely with its members from across all sectors of the profession, the government and other stakeholders to ensure that any future reforms will benefit those who require legal services and that access to justice remains central. A crucial part of developing successful and workable new policies will be to ensure that those providing legal services are properly regulated and work to the professional standards expected of them.”

The debate around so-called “alternative business structures” has proven deeply divisive among lawyers. There are fears that many small Scots firms could be wiped out by a competitive free-for-all and that permitting external ownership could compromise professional integrity.

The OFT believes a “fit-to-own” test would safeguard the integrity of legal services delivery and claims many small firms and sole practitioners will actually benefit from outside investment.

Mr MacAskill said: “I am pleased that Law Society members have accepted the proposals presented to the AGM and I look forward to working with the profession in the coming months to implement these proposals.

“This is an exciting time and there will be great benefits for those who take advantage of the opportunities these proposals provide.”


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