Following the reversal of the Council's plans for the Law Society constitution and its announcement that Council is to be shrunk, David Flint asks if the Society's leadership remains democratic and representative of the profession it serves.

A few Scottish Solicitors might have been aware that the Law Society of Scotland was conducting a "Consultation" on a new Constitution. I say "might" because the "Consultation" was not widely publicised unless one had been to the Society's website and searched for it. Despite what they described as a major revamp of the site, unless you know exactly what you are looking for, you're unlikely to find it.

Fortunately, the Firm Magazine, the Royal Faculty of Procurators in Glasgow, the Scottish Law Agents Society and a few solicitors did discover what was going on and comments were submitted. Indeed, the comments which were submitted and made public suggested that the proposed changes were very unwelcome.

According to the Society's website "A working party under the convenership of vice president-elect, Bruce Beveridge, has been working on the new draft over the last couple of months and has considered amendments suggested by members during earlier consultations." Readers will remember that a previous attempt to usurp the rights of members was rightly thrown out at a previous General Meeting. It was therefore to be thought (erroneously as it transpires) that the Council and the Executive might have taken on board the comments made on the previous occasion.

If one reads the detailed response on the Firm Magazine website from RFPG, it would appear that the Council and Executive have learned nothing and one must wonder exactly with whom the "Working Party" have been working. It is not sufficient (despite the clear view of the Council & Executive) only to consult with those who agree with it.

We were told that: -

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.

It would appear that members didn't agree with this.

In a Press Release issued after the Council Meeting on 30th March, Bruce Beveridge, Vice-President elect and convener of the Society's constitution working group, said: "We conducted a thorough consultation which elicited a broad range of views. Responses confirmed a widespread endorsement of proposals for a smaller Council. We recognised though that there remain some reservations about proceeding with a new constitution, which we have decided not to take forward at present."

It is to be hoped that the Society will publish in full ALL of the submissions which have been submitted so that members have a proper opportunity to see all the views which have been submitted, both for and against the proposals. In an ideal world, these submissions would be published in full in the Journal of the Law Society of Scotland as well as clearly on the Society's website (being clearly linked from the homepage). Constitutional change is of utmost importance to all members of the profession and their finding about what is to be done to them or in their name is of such importance that it should no longer be concealed.

If there is no space in the Journal (and views opposing Council & the Executive can't usually be found space in the Journal), or on the Society's website, I am sure that the Firm would be prepared as a service to the profession to publish all the submissions[*]. If they are not ALL to be published in full, I think one is entitled to ask why not?

Despite the fact that "there remain some reservations about proceeding with a new constitution" (perhaps the understatement of the month?), the Council did decide to reduce the size of the Council from the present 62 to "only" 46. This is to be done by reducing the elected solicitor representation by one third from 43 to 30. There will still be 7 solicitors co-opted (undemocratically) by Council and 9 non-solicitor members. What they have succeeded in doing therefore is reducing the democracy present on Council from 69% to 65%. A member might legitimately ask how that attains any of the aims indicated by Bruce Beveridge?

Indeed one might ask why any solicitors should be co-opted to Council. If they cannot find other members of the Society (either in geographic constituencies, or in the artificially created special interest groups) to vote for them, one might legitimately ask if they are truly representative of the profession (or even some part of it)? Of course, that does assume that the Society does want to be a democratic organisation.

The outcome of the "Consultation" is perhaps slightly unexpected – it does appear that the adverse comments which were made were partially taken into account. (which makes a cynic such as myself suspicious that there were no or at least few outside the Council (and the Scottish government) in favour of the changes). However, those commenting didn’t realise that the new Constitution was other than a package – had they known that a change in Council size was all that was contemplated, more attention could have been focused on that aspect of the proposals.

Council is still far to large; it is still too undemocratic and the Executive are still not properly under control. The Society – and perhaps particularly the Executive – needs to understand that the Law Society of Scotland is a members organisation and that its sole functions are those set out in the statute. The members have not requested that it become a regulator of ABS entities – and all the reasons set out so cogently by Walter Semple here make it clear why that should not be so. What most members are seeking is a Law Society Light with the Society ceasing to interfere in every aspect of its members businesses.

What is now clear beyond doubt, with the failure to impose a new Constitution is that there is no basis whatsoever for the "Board", an entity loved by the Executive as removing even more democratic oversight (such as it is) from the activities of the Executive, and the President should make it clear that the "Board" has been disbanded.

Indeed, having twice attempted to impose a new Constitution against what is clearly the wishes of the profession, Council and the Chief Executive should accept that they are wholly out of step with the wishes of the membership and do the honourable thing and resign immediately.

This won't happen of course, but it should. Perhaps members of Council might like to reflect on this rather than trying again to impose an undemocratic, ultra vires and unwanted change on the profession?

Bruce Beveridge states in his Press Release, "We remain committed to working with our members to ensure that the Society's governance structure is modern, effective and transparent." It is clear that the members do not share his optimism or his beliefs. (Of course, he wasn't elected by any members to the post of Vice-President-elect, which might explain it).

Thomas Jefferson famously stated "The price of freedom is eternal vigilance." Council and the Executive need to understand that there are members who will be eternally vigilant for precisely that reason.

David Flint is a Scottish Solicitor. The views expressed are his alone and not necessarily the views of his partners, colleagues or of any other organisation of which he is a member.

[*] Editor's Note: This proposal has been put to the Law Society this morning.

Image Credit: Warner Bros