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Holyrood’s Justice Committee offers ‘cautious support’ for Legal Services Bill reforms, as lawyers fight to hold back Scots wider access to justice

12 Mar

Debating chamberScottish Parliament supports legal services reforms. WIDER PUBLIC ACCESS TO JUSTICE in Scotland received a significant boost today as the Scottish Parliament’s Justice Committee gave their ‘cautious support’ to the Scottish Government’s Legal Services (Scotland) Bill proposals of opening up Scotland’s closed-shop monopolistic legal services market where for decades, consumers access to legal services & the courts has effectively been controlled by lawyers, advocates & the profession’s governing & self regulatory bodies such as the powerful Law Society of Scotland.

In a report published today, the Justice Committee agrees to the general principles of the Bill, which aims to widen public access to justice in Scotland and allow new entrants into the lucrative legal services market such as banks, supermarkets & others who may well provide legal services to the public at a much reduced cost than currently offered by law firms & solicitors represented & regulated by the Law Society of Scotland.

Which logoWhich? campaign led to access to justice reforms now before Holyrood. Speaking this afternoon, Julia Clarke, for the consumer organisation Which?, who started the process which has led to the proposals contained in the Legal Services Bill said : ‘Which? has always said we would prefer to see an independent regulator, which would have answered the concerns being expressed by the Committee. However we do believe that the Legal Services Bill will bring benefits for the public using legal services, bringing with it more competition, more choice and better value.”

bill aitkenJustice Committee Convener Bill Aitken MSP. Holyrood’s Justice Committee Convener Bill Aitken MSP, speaking on the Committee’s report out today said: “This Bill will enable, but not oblige, the Scottish legal profession to enter into new forms of business that could create more competition and potentially offer consumers more choice in legal services. The committee’s evidence from the consumer lobby was in the main supportive of this Bill. The evidence from the profession itself was less supportive and in some cases fundamentally opposed to the Bill’s direction of travel.

Mr Aitken continued : “The committee understands the principles behind the consumer lobby’s arguments but received little in the way of hard evidence. Without this hard evidence, it could be argued that increased competition could result in detriment to the consumer as a consequence of the loss of local and high street legal firms if banks or supermarkets enter the legal services market.”

Little in the way of hard evidence …. someone obviously hasn’t been paying attention to how the legal profession has been ruining clients and restricting Scots choice of legal representatives or access to justice for decades … which has already resulted in attempts through legislation such as the Legal Profession & Legal Aid (Scotland) Act 2007 to deal with some of that hard evidence some are now intent on ignoring.

Today’s committee report also highlights concerns about:

  • The extent of powers given to Scottish Ministers as a consequence of not establishing a new regulatory body similar to the Legal Services Board for England and Wales.
  • The potential lack of independence for Scotland’s legal profession when it is regulated by Scottish Ministers. The committee recommends giving the Lord President a greater role in the approval of regulators in order to address this concern.

Reservations were also expressed by the Justice Committee on whether the “fitness for involvement” test contained in Section 49 of the Legal Services Bill is robust enough to regulate any outside investors, such as banks or supermarkets, as desirable institutions (or individuals) having financial stakes in law firms & legal services providers.

Factors for determining the ‘fitness for involvement’ include the investor’s financial position and business record, probity and character (including any associations) – factors which, if enforced today over many law firms I have reported on in terms of client complaints & poor service, would probably closed own several of Scotland’s ‘leading law firms’, if the true characters of some of these ‘leading lights of the legal profession’ ever became public.

On the question of opening up access to advocates, the Committee agreed with the Scottish Government that “in a jurisdiction the size of Scotland and given the relatively small number of advocates, there is no need to impose alternative business structures on the Faculty of Advocates current business model .. an issue at odds with the OFT’s findings and consumer experiences.

The Committee also said “it is not aware of there being any significant degree of dissatisfaction with how the regulatory arrangements for advocates presently operate but nevertheless would invite the Faculty to consider what steps it might take to modernise its regulatory regime” – complaints against advocates, who would contemplate such a thing !

Law Society of ScotlandLaw Society of Scotland wants to be ‘approved regulator’ of legal services despite history of anti-consumer bias. On the thorny question of regulation of an expanded legal services market, where the Law Society of Scotland has already stated it will seek to be the approved regulator to regulate all who provide legal services in Scotland, the Justice Committee’s report said : “Given that Scotland is a small jurisdiction, the Committee is not persuaded that there will be any great benefit in having more than one or two Approved Regulators. The Committee is particularly concerned about the prospect of bodies, external to Scotland, becoming Approved Regulators and seeks assurances from the Scottish Government in this respect.”

The Committee’s report went onto state : “The Committee observes that any body seeking to combine regulation and representation is likely to face some difficulties as a result of the inherent tension between the two roles. The Committee recognises that there are indeed tensions with and conflicting viewpoints about the Law Society’s dual role but is of the view that these are for the Law Society and its members to consider and resolve.” this point has already led to debate & arguments between factions of the legal profession, which I reported earlier in the week, here : Lawyers squabble over control of legal services monopoly & regulation as Scots consumers forced to wait for wider access to justice

On a more hopeful note, the Committee felt that some parts of the Bill, namely Section 36 would unduly restrict the way in which voluntary or not-for-profit organisations can provide legal services. The Committee asked the Scottish Government to consider this point further after concerns were raised on this issue by Citizens Advice Scotland.

Background : The Legal Services Bill has come about in Scotland after the consumer organisation Which? issued a “super complaint” to the Office of Fair Trading under section 11 of the Enterprise Act 2002, stating that the consumer interest was being harmed the restrictions on advocates’ business structures, solicitors and advocates providing services jointly, third party entry into the market, and direct consumer access to advocates.

The OFT’s response to the Which? super complaint can be viewed here : OFT response to super-complaint (pdf) along with their comments from July 2007, stating : “Which? argued that the current restrictions against such practices prevent legal services providers in Scotland from adapting their business to best fit the needs of Scottish consumers. The OFT concluded that the restrictions are unnecessary and believes that there would be benefits to consumers if they were lifted – such as efficiency gains and higher levels of innovation in the provision of legal services.”

The Scottish Consumer Council, now renamed Consumer Focus Scotland, issued its response to the OFT’s consideration of the Which? super complaint, broadly supporting the moves to open up Scotland’s legal services market. The SCC’s reply to the OFT can be viewed HERE (pdf)

MacAskill tight lippedJustice Secretary MacAskill – no friend of independent regulation argument, It should be noted England & Wales already have the Legal Services Act 2007 in place, leaving Scotland trailing behind once again, simply because the legal profession north of the border has far too much influence over the pace of access to justice reforms. Missing from Scotland’s version is of course, the issue of independent regulation, where the current Justice Secretary Kenny MacAskill, seems to believe lawyers can still be trusted to regulate themselves – an obvious mistake, as lawyers have never been trustworthy when it comes to investigating complaints against their colleagues.

Over the years, many previous Scottish administrations including the present Scottish Government have dithered & delayed on giving Scots wider access to justice, while the legal profession put the brake on calls for reforms, even preventing enacted legislation from coming into effect, such as in the case of Sections 25-29 of the Law Reform (Misc Provisions) (Scotland) Act 1990, which allowed wider rights of audience in Scotland’s courts, but was held back by the legal profession’s seventeen year campaign to keep ‘outsiders’ out of courtrooms, while solicitors raked in exorbitant profits from clients who had no alternatives to turn to for legal representation.

The Legal Services (Scotland) Bill was introduced in the Scottish Parliament on 30 September 2009 and referred to the Justice Committee, who received written and oral evidence from a range of sources all of which can be found on the Justice Committee web page.

You can read my own coverage of the Legal Services Bill here : Legal Services Bill for Scotland – The story so far

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