The Editor of the Journal of the Law Society of Scotland, Peter Nicholson, responds to criticisms of the Journal's stance in the ABS debate made by Mike Dailly. Nicholson adds that the views expressed are personal and not those of the Society, and that the Journal has editorial independence from the Society.

“The reports of my death are greatly exaggerated”, the novelist Mark Twain said after a newspaper published his obituary prematurely. Something reminded me of that quote on reading Mike Dailly’s blog last week on the supposed consequences of the Legal Services (Scotland) Bill.

"I have the greatest respect for Mike’s work for the underprivileged in Govan (and much further afield). But I do believe that in speaking of “the death warrant for the independence of our profession”, or of “control” by the Scottish Government “lock, stock and barrel”, he is scaremongering. Let me try and explain why.

"I take Mike’s principal target to be professional regulation. The “Tesco law” aspect that he also touches on, raises separate issues which will be extensively discussed in the run up to this month’s special general meeting, and now also the referendum. The points Mike raises essentially concern the independent governance of the profession.

"The “control, lock stock and barrel” description is directed at section 92 of the bill. The purpose of this provision is to achieve a stronger non-solicitor voice on the Law Society of Scotland’s Council. (The reasons are not strictly relevant for present purposes, but let’s take it that promoting the interests of the public is regarded these days, across different professions, as giving the public the right to some sort of say. And it would be wrong to think that solicitors have a monopoly of wisdom in furthering the Society’s purposes.)

"Section 92 does not say what the non-solicitor proportion is to be. The Society proposes 20% and the Scottish Government appears comfortable with that. The consumer bodies want 50%+, but the Society has admitted that with that sort of figure, it could not function as proposed: some other body would have to represent the profession. And I feel sure the members would demand that anyway. So the profession would still have an independent voice, but we would be moving closer to the new English model.

"In reality, then, for section 92 to work as proposed, Council will have a lay voice of the order of 20%. The other 80% will be solicitors, elected or co-opted as at present. In number terms, it could mean a Council of 60, with 48 solicitors and 12 lay people, compared with the present 53 solicitors and four lay observers. The Scottish Government will have no role in filling any of the solicitor positions.

"How are the 20% to be appointed? By the Council. The bill says so: Council is to set out how they will be appointed. It also says they must appear to the Council to be suitably qualified to represent the interests of the public in relation to the provision of legal services, and to be otherwise suitable having regard to the Society’s objectives.

"So where does the Government come in? Only that if the Society does not bring in this 20% rule (if it is to be 20%), they can make it happen by regulation. And they can say that the people the Society chooses (as suitably qualified etc), or some of them, should be people who have x and y additional qualifications.

"Nothing in section 92 gives the Scottish Government the power to appoint a single member to Council. So to say “It would entitle Scottish Ministers to appoint as many non-lawyers to the Council of the Law Society of Scotland as they saw fit”, as Mike does, is, I fear, a plain misrepresentation. It does not help the cause of open debate on the bill.

"Some may object to ministers having even the degree of influence I have set out. That is a debate that can be had. But it does not equate to “control, lock stock and barrel”, or anything remotely like it.

"Section 93 has also set some alarm bells ringing. This will require Council’s regulatory functions to be exercised on its behalf by a regulatory committee, comprising at least 50% lay members, one of whom shall be convener.

"At first sight this may look surprising. However the first thing the section says about the committee is that its purpose is to ensure that Council’s regulatory functions “are exercised independently of any other person or interest”. Council will decide how its members are chosen. And, so far as I can see, practice rules will still have to be put before the members in general meeting before being made, and to be approved by the Lord President before coming into effect, as they are now.

"Probably the alternative going forward would have been an external rule-making body, again on the English model. Again that is a debate that can be had, but it is not one to conduct in terms of Government control.

"It seems to me that fears over independence often derive from a very narrow focus on individual provisions of the bill. The bill at the outset (section 2) reaffirms the profession’s core values, among them “independence and integrity”, and section 86 states expressly that all regulatory duties must be exercised with a view to meeting those objectives.

"Whether the overall scheme of the bill contains sufficient safeguards for professional independence and the other core values can only be judged by looking at the whole scheme and deciding how well it holds together. The Society, I understand, is doing that ahead of stage 2, in working to identify any weak points regarding professional independence and submitting suitable amendments.

"In fact section 2 and section 86 together ought to give the profession a trump card. Would they not provide the platform for a challenge by judicial review of any Government or regulator actions (and that would include those of the Society) that would put professional independence at risk?

"One thing at least that the present debate demonstrates is that the independence of Scottish solicitors is not in doubt. With people like Mike around, a challenge of that sort would not be slow in coming. And if such action were ever necessary, he would certainly have my support. "

Peter Nicholson is editor of the Journal of the Law Society of Scotland.