David Mamet, the American playwright observes that “People may not say what they mean, but they always say something designed to get what they want’. Let’s hold that thought for a moment while we consider the future of Scotland’s legal profession.

In a statement to The Firm magazine, Law Society President, Ian Smart states it is ‘regrettable that it has taken until this stage for some of our members to engage in this debate’. Yet in the same breath he espouses the success of the Law Society’s forthcoming ‘sell-out’ road shows to engage members in that same debate.

You can’t have it both ways, unless, to paraphrase Orwell, it’s a case of ‘Law Society good’, ‘Critics bad’. So let’s be clear, the Society is not engaged in an open debate on this issue. It is mounting a rearguard PR exercise to defend it’s failure to do its job in representing the interests of all Scottish solicitors, and safeguarding the independence of our profession.

Ian Smart denies that there is any threat to the independence of solicitors in Scotland because the Scottish Government favours a Council comprising of 20% lay members. But that is not what section 92 of the Legal Services (Scotland) Bill makes provision for. It gives the Scottish Government an open ended power to prescribe whatever number of non-solicitor members it sees fit to require, and to introduce such criteria as to appointments as it may determine.

Over on the Society’s Journal Online, the Editor dismisses concerns by insisting that: “to suggest that the Society has abandoned the principle of independence, or is about to fall under Government control because of section 92, is completely over the top and an argument that would surely be laughed out of court if it were ever presented”.

The naivety of this position is breathtaking. Firstly, as a matter of pure logic and principle non-solicitors cannot ‘represent’ solicitors. Ian Smart makes reference to a number of professional bodies that have lay membership such as the General Medical Council and the General Dentists ' Council, but these bodies are statutory regulators. No-one has ever disputed the need to have independent lay members on a regulatory body.

Secondly, while the Law Society might be content with 20% lay membership, what is to stop this proportion being increased? And this is where Ian Smart, and the Journal, miss the fundamental point of how Government power operates in practice. Most of the time power is wielded behind closed doors and it is the threat of its use which can impose undue influence. And it can be subtle; it can be by stealth. For example, a civil servant meets with Law Society officials and says ‘The Cabinet Secretary is a little worried about your position on our proposal for X or Y. Oh, and I thought I should tell you we are looking to review the proportion of lay members on your Council’.

Now, before Ian Smart asserts this is ‘an antagonistic stance’, or Peter Nicholson blogs ‘we need to keep our feet on the ground, and not be over the top’ have a look at today’s newspapers. The Scotsman reports: “The SNP has become the latest party to question the role of the BBC and its continued position as the national state broadcaster as part of the fallout over the exclusion of Nationalists in the general election leaders' debates. Along with Plaid Cymru in Wales, the party has announced that it is to review its entire broadcasting policy, including whether Welsh and Scots should have to pay the licence fee”.

People say things designed to get what they want. But I like to say what I mean. In the case of the Legal Services (Scotland) Bill, my feet are firmly on the ground, and I feel no antagonism. Rather, I believe that the Law Society of Scotland has failed to negotiate anything in the Legal Services (Scotland) Bill which improves access to justice in Scotland, or provides any long term benefits for the profession. They have embraced this Bill like a drowning sailor might sezie a rope, without appreciating there’s an anchor attached to it.

Mike