Holyrood’s Justice Committee will consider MacAskill’s Legal Services bill as arguments grow over who will regulate legal sector. Scottish consumers will be given a wider choice of who will represent their legal interests with the introduction of the Legal Services Bill, which seeks to promote alternative business structures within Scotland’s legal services sector. However, a gigantic flaw in the Scottish Government’s proposals reveals confusion and poorly thought out plans to appoint ‘a regulator of its choice’ to regulate an expanded legal services market, leading to expectations the Law Society of Scotland will end up engineering its own appointment to regulate and manage anyone who seeks to enter Scotland’s legal services sector, irrespective of their professional background.
Regulation nightmare for consumers predicted as Scottish Government ‘to choose’ a regulator with the help of the Lord President, the OFT and others. A Consumer affairs insider while welcoming the improvement in choice of legal representatives, condemned the proposals over regulation, calling them “half baked” and claiming there will be little change in the usual closed shop complaints system run by the Law Society of Scotland and the Scottish Legal Complaints Commission. She said : “The Scottish Government’s proposals over appointing a regulator to oversee the expanded legal services market after the bill becomes law are a bit of a joke, given it is widely expected the Law Society of Scotland will end up as the sole regulator of the entire industry yet again. I doubt consumers would benefit from any such arrangement when it is clearly evident consumers have never benefited from the Law Society’s regulation in the past.”
She continued : “There are some competent proposals to widen public choice in the legal services market, however, the Legal Services Bill as it currently stands is a long way off from the expectations of consumer organisations and doubtless the many law reformers who are calling for the full opening up of Scotland’s monopolistic legal services market.”
The Scottish Government’s Press Release described the main points of the Legal Services Bill as being to allow solicitors to secure external investment and business expertise and to combine with other professionals to offer legal services to the public in new ways, to allow the removal of restrictions on solicitors entering into business relationships with non-solicitors, to make it easier for Scotland’s leading commercial law firms to compete effectively with other UK firms and internationally, while also allegedly (and laughably) creating a robust regulatory framework in which the Scottish Government will appoint approved regulators who will regulate the new business structures
Justice Secretary Kenny MacAskill has chosen to concentrate on beefing up the legal profession’s profits, sidelining the long standing problems of poor regulation. Justice Secretary Kenny MacAskill said: “A strong and independent legal profession is part of the institutional framework of a modern democracy. The legal profession also contributes to the Scottish economy with an estimated turnover of over one billion pounds per annum. This new legislation will help Scotland’s legal profession to grow and compete both in the UK and internationally.In developing these proposals, we have worked closely with the profession to ensure that we protect the profession’s core values,at the same time as freeing solicitors to offer new services in new ways. Our proportionate and flexible approach will allow the profession to move quickly to respond to changes in the market by removing outdated restrictions on business models.”
Scotland’s Justice Secretary Kenny MacAskill again puts lawyers £billions before consumer protection & independent regulation.
The Government’s proposals for regulation laughably state : “There are six such principles to which persons providing legal services should adhere. These principles do not differ substantially from the professional principles by which solicitors and other legal professionals act, and are intended to ensure that the current standard of quality in the delivery of legal services is safeguarded. Licensed providers would be expected to “act in the best interests of their clients” meaning that they should, for example, observe the duty of confidentiality, avoid conflicts of interest and safeguard a client’s money and property. Licensed providers would be expected to maintain good standards of work, meaning that they should act competently, communicate effectively, be diligent and show respect and courtesy.” Surely these claims must relate to another country, because they certainly do not describe the Scottish legal services market !
A representative of legal services users today branded the Legal Services Bill ‘little more than window dressing for the legal profession which contains nothing for consumers’. He said : “This is all about bringing new money into law firms and giving regulatory control back to the Law Society of Scotland. I don’t see anything beneficial or productive for consumers in these legislative proposals.”
SLCC’s Chair Jane Irvine offered no view on the new proposals. The Scottish Legal Complaints Commission’s Chair, Jane Irvine was asked for comment, and replied : “I have not studied this yet.” However, an SLCC insider said : “The Government’s proposals over regulation of abs are messy and will cause more confusion for clients over who to make a complaint over problems with their legal representatives. The SLCC was given the role as single gateway for all complaints regarding legal services and funding that role comes from levying all entrants to the legal services market. It now looks as if the Government are now trying to undo the Commission’s remit and hand regulatory power back to the profession which will be a bad thing as far as consumers are concerned.”
A client with a complaint currently being investigated by both the Law Society of Scotland and the Scottish Legal Complaints Commission rounded on both organisations, branding them “useless, prejudiced, anti-client, against the public, and part of the problem of crooked lawyers, rather than a solution to cleaning up the profession.”
President Ian Smart of the Law Society of Scotland is campaigning hard to become the sole regulator of the expanded legal services market, by any means possible. Quick off the hoof, Ian Smart, President of the Law Society of Scotland reacted to the Justice Secretary’s proposals, saying “The Society believes that Scotland’s legal profession should be able to adapt to best meet the needs of modern society and a global economy. Scots lawyers are well respected around the world and we want to ensure that our members have access to the opportunities that ABSs could present to adopt new practices, to deliver the services their clients expect and develop their businesses in Scotland, as well as elsewhere in the UK and overseas.”
“However it will be vitally important that the Bill ensures the independence of the legal profession, promotes access to justice and maintains robust consumer protections and high standards among those delivering legal services. Effective regulation will be key to any plans for change. We look forward to engaging with the Scottish Government, the Parliament and other interested parties in the future development of legal services in Scotland.”
An analysis of Ian Smart’s comments of how the Law Society has handed the debate on alternative business structures indicate his claims are pure fantasy. In reality, the Law Society attempted to vote down the abs proposals, which only passed into the profession’s overall policy after legal firms themselves took the initiative and demanded changes. Where Mr Smart speaks of ‘promoting access to justice and maintaining robust consumer protections and high standards among those delivering legal services’, the simple fact as we all know is these fanciful ‘consumer protections and high standards of service’ have never existed in Scotland’s justice system, nor has unrestricted access to justice, a fact which Lord Gill’s Civil Courts Review more than adequately attests to, alongside the Lord Justice Clerk’s own condemnation of Scotland’s Justice system as being that of a Victorian justice system stuck in the past.
With Ian Smart’s call for ‘effective regulation to be key to any plans for change’, readers can take that to mean the Law Society of Scotland will be cracking the whip over Kenny MacAskill to ensure it is conveniently appointed as regulator of choice, and internal memorandums seen by this reporter do seem to suggest that will be the case, even before the bill has been debated at the Scottish Parliament’s Justice Committee.
Make no mistake, the Law Society of Scotland do not deserve any further regulatory function over the Scottish legal services market. This has been proved time and again over the decades, which have seen average complaints figures of around 5000 individual complaints a year made against less than 10,000 solicitors, leaving a trail of literally thousands of clients who have fell victim to crooked lawyers who mostly remain in practice to this day, through the protection of the Law Society’s considerably corrupt system of self regulation, brutally enforced by its sinister Client Relations office.
Consumer group Which? criticised the Scottish Government for failing to bring in an independent regulator to protect Scots consumers. Which? principal public affairs officer, Julia Clarke, said : “This legislation will improve access to justice for people in Scotland and sweeps away outdated restrictions on how lawyers work.The Bill promises to breathe new choice and competition into legal services, which should lead to economies of scale and costs, and possible one-stop shops offering better service to consumers.”
She continued : “While we would have preferred an independent regulator, we are pleased that the Law Society of Scotland’s regulatory committee will have a lay majority and a lay Chair, introducing a much-needed consumer voice in this sector. It is disappointing that Advocates are not included in the new legislation, as we see no reason for them to be exempted from the opportunity to offer more choice to consumers.”
Consumer Focus Scotland broadly welcomes the Legal Services Bill. Sarah O’Neill, Head of Policy and Solicitor at Consumer Focus Scotland, said : “We have long campaigned for a more open market in legal services in Scotland and the creation of new ways of delivering them. The Legal Services Bill paves the way to open up competition in the market and widen choice for users of legal services.”
Clearly the Legal Services Bill is flawed, in respect of regulation, and the number of alternative choices it offers Scotland’s consumers in terms of who we wish to represent our legal interests. You can read two of my earlier reports on the flaws of the Legal Services Bill, here : Scottish Govt’s Legal Services Bill ‘must do more’ to break Law Society’s grip on legal marketplace & give public wider choice over access to justice and a topical one on the subject of the proposals over regulation, here : Consumers & Govt insiders brand Law Society ‘too crooked’ to regulate ‘Tesco Law’ expansion of legal services in Scotland
You can download the Legal Services Bill from the Scottish Parliament’s website using the following links :
- Bill (as introduced) (469KB pdf posted 01.10.2009)
- Explanatory Notes (269KB pdf posted 01.10.2009)
- Policy Memorandum (219KB pdf posted 01.10.2009)
- Delegated Powers Memorandum (111KB pdf posted 01.10.2009)
The opportunity to debate the Legal Services Bill, make submissions on personal experiences on dealings with the legal profession, and suggest changes & improvements to the Scottish Government’s proposals should not be missed by the public, who can contact the Scottish Parliament’s Justice Committee when bill begins its path through the Parliament.
You can contact the Justice Committee by email on the subject of the Legal Services Bill, offering your thoughts, submissions and suggestions on the Legal Services Bill, here : firstname.lastname@example.org or use their online communication form.