The Law Society is currently undergoing its second attempt to revise its constitution, an exercise that solicitor David Flint, who previously lodged the motion that resulted in the reduction of the annual membership fee, says is loaded from the start.

I had intended to comment line by line, clause by clause, on the changes to the existing Constitution of the Law Society of Scotland, but a number of circumstances have meant that I have decided not to do so,

Firstly, I have had the opportunity to read the very comprehensive and cogently argued response by the Council of the Royal Faculty of Procurators in Glasgow in which they point out the major failings in the latest draft and the places in which it is, at the least, ultra vires the Society; I commend it to you all.

Secondly, the timetable for the Review with comments needed by the 21st in order to be considered, collated, marshalled into groups and incorporated into the draft before the revised draft is finalised by Council at its meeting on 30th March (presumably the papers would need to be sent out in time for Council members to read and consider them before they meet) shows clearly that the “Consultation” is nothing of the sort; it is simply window-dressing of the most blatant and shameful type.

Thirdly, whilst those in the lofty towers of Drumsheugh Gardens may not have noticed, there is a recession out there and solicitors in the real world have livings to earn, clients to support and staff to pay and none of this is made any easier by the pointless interference from those who claim to represent us.

Finally, irrespective of what comments are made, none of it will matter since previous behaviour by Council and the Executive make it clear that the views of the members don’t matter; it is the view of the (heavily unelected) Council and the non-solicitor Executive which will count. Even if the member are impertinent enough to challenge that view, the proponents of opposing views should expect to be driven from Council and face criticism and a barrage of adverse publicity from the organs of the Society, the Journal of the Law Society of Scotland (supposedly the magazine of the profession, but in truth the voice of the Executive and of Council) and a campaign funded by members contributions – despite the obvious fact that the Society is meant to be representative of all the members and not of some faction within the profession.

I have therefore decided to confine myself to a number of general observations; these do relate to the Constitution, present and proposed but I certainly don’t have the time or inclination to slot these into the current draft. Perhaps if I had the resources the Society does, then I could, but I am only able to pay for these once.

 - The Council : The UK manages to be governed by 650 (shortly to be 600) MPs for a population of 63million;

- Scotland has 129 MSPs for a population of 5.2 million [clearly too many MSPs]

- The Law Society of Scotland proposes 47 members on Council for only 10,500 solicitors.

Other than those 47 happy souls, can anyone explain why Scottish solicitors need so many of Council? Perhaps that is why so many “elections” are uncontested. On a UK basis, we would need 243,000 MPs. No wonder the costs of the Society are so high.

If there is to be a Board (and if the Constitution needs changed to allow this) why has the Society had a Board for several years? The Corporate Plan 2011-12 talks about a Board, but if members have not voted to change the Constitution to allow this, is this not somewhat presumptuous?


A Single Profession
Even if one accepts that particular groups of Solicitors (public sector, in-house, outwith Scotland) need special representation, why is this done by co-option rather than by elections in which those groups vote. If they have special representation by right, why do they also get the opportunity to determine who should represent members in private practice? This has meant that in recent years (and perhaps in future) the Office Bearers can and indeed have been persons who have been elected by no-one, having been co-opted to Council and elected by that Council to Office. Is this democratic?

We are told that the “solicitor” brand is important and that all 10,500 members subscribe to that and benefit from it. Why then is it that inhouse lawyers and those in the public sector pay a lower cost for this “brand value” than solicitors in private practice? Do they not benefit equally from the brand?


The Role and Selection of the Office Bearers
The President and Vice President are elected by Council in an election process where transparency to the members (those who, nominally, they are supposed to be representing) is totally lacking. Even if one were to accept that the President / Vice President could only be drawn from that narrow electoral college being Council members, (and I would question whether in a democratic society that is appropriate) there is no reason why those who wish to stand for High Office should not be required to set out their stall to the entire membership and the entire membership select the most suitable candidate from those standing. I accept that from time to time there may be blips in the persons chosen; however, that is true of any democratic system, whether of a Society or of a government. The existing system perpetuates the perception that the Law Society of Scotland is run by a small group for the benefit of a small group. Whether that perception is accurate does not matter; the fact is that that perception exists.

The “Democratic” Process
Democracy within the Society does not exist.

Even if one were to accept that, theoretically at least, each member is entitled to a single vote, the proposed Constitution makes it clear that in this as with so many other proposals in this draft, some members’ votes count more than others.

The conduct of General Meetings is, in terms of the Standing Orders, under the control of the Chairman of the meeting; the Chairman has to be a Member of Council. This means, as was seen in relation to the ABS meetings, that when it became apparent that the opponents of the Council position were likely to succeed in a motion, the Chairman used a procedural device (only those present could vote on a procedural motion to adjourn and for the business reasons indicated at the start of these observations, those attending tend to include Council members as a Council meeting is fixed for immediately thereafter, so ensuring their attendance) to adjourn the meeting until such time as additional proxies could be rounded up.

Members are to be restricted under article 15 in proposing matters for debate to matters either relating to the business in the notice (set by Council) or received before the date the meeting notice is issued (a date determined by Council.

Motions which are not proposed or accepted by Council need to be passed by a 60% majority to be binding, If only 59.9% vote in favour, it only becomes binding if Council approve it at their next meeting (which has never happened) or it is approved at the next General Meeting. Needless to say, Council motions only need a simple majority. In short, the views of 47 are to prevail over the votes of 60% of the profession voting. It is also up to the Council to determine whether the motion which has, inexplicably, passed this 60% threshold is capable of implementation. No reasonability requirement and members don’t need to be told until the next General Meeting (likely to be at least 4 and possibly 9 months away.


The Use of Standing Orders
As others have pointed out, the Standing Orders are fixed in secret and determined by Council with no democratic oversight. They can and have been used to stifle debate and prevent opposition to Council. Standing Orders should be confined to matters of routine procedure and should enjoy a thorough and public debate before implementation.


Referendum
As someone who was the signatory for the previous referendum request, I accept that the existing process is flawed. The existing process allows Council to subvert the request by holding its own similar referendum at about the same time; allows it to determine when and how the referendum is to be conducted and use Society resources to support one side. In any event the result of a referendum is expressly stated to be non-binding.

The Democratic Process
General Meetings and Referenda are not democratic or fair in the way that bodies such as the Electoral Society would consider an election to be “fair”.

- Only the Society Executive has access to the database of members’ names and addresses; those who would wish to canvass for a non-Council position require to produce somehow their own list. This is a very expensive and necessarily inaccurate process as public information is less likely to be up to date

- Those opposing a Council position have no simple means of funding the cost of disseminating material to 10,500 members; Council on the other hand are able to do this via E-mail and DX.

- Those opposing Council require a special majority to be successful at General meetings, and even then the motion can be brought back at a Special General Meeting convened for that purpose very shortly thereafter.

- Irrespective of the outcome of a referendum, the 47 members of Council need take no heed of it.

Conclusions
Of course, little of this would matter if solicitors had a choice; but we don’t (at least not yet).

We all need (and I use that word advisedly rather than choose) to be members of the Law Society of Scotland; were we able to choose whether we wished to be represented by the Law Society of Scotland as our representative body, perhaps none of this would matter as we could choose to be members of the Law Society of Scotland or of a democratic organisation instead.

In both its Corporate Plan 2011-12 and its Strategy “Towards 2020”, (documents the existence of which appear to have had little publicity other than to those to trawl through the Society’s website trying to find information) it is stated (page 6 of the Corporate Plan and one of the Five principal objectives on the first page of the Strategy) that the objective is that “The Society is the professional body and regulator of choice”.

Of course at the present time, solicitors don’t have a choice, and Law Society policy is that they do not get one. However, these documents are in the public arena so perhaps the Society is waking up to the fact that it cannot be all things to all men and that even for it, it is a conflict too far to represent all strands of the profession, the public interest (however that is drawn under the Act) as well as being a regulator of Alternative Business Structures, the very existence of which may undermine the interests of both the profession and, arguably, the public interest.

Maybe the Society should come clean about its intentions and whether it will support legislation to remove the compulsory representation obligation. Or perhaps we should all find someone with whom we can form an ABS and move away. Either way, tinkering at the edges of the problem by an attempted power grab through a new constitution addresses none of the issues and serves merely further to alienate a substantial section of the membership.

The “Aims”
On its webpage, the Society states: -

The redrafted constitution aims to:

? strengthen members' rights

? support greater participation of members

? reduce the size of the Council

? increase accountability and transparency

? improve the corporate governance of the Society

If that is truly the aim, it fails on all counts except in a minor and inadequate reduction in the size of Council. The Proposal is not fit for purpose and should be withdrawn.

The author is a Glasgow Solicitor. All views expressed are personal and do not necessarily (and probably don’t) represent the views of any firm or organisation with which he is a member.