As part of the ongoing debate, and in the interests of clarity, David Flint, partner at MacRoberts, an instrumental voice in the representation/regulation debate and critic of Law Society policy on reform, has provided the following column in relation to section 92.

Within the debate presently raging over ABS, and over the role of the Law Society, much has been said about section 92. The President, the Chief Executive and the Editor of the Journal have all told us that we should not get too excited about this issue; after all it is only 20% of the Council and that is OK. Further, the power to direct the appointment of lay members to Council could only be made after consultation with the Society and with the Lord President.

Those within the profession who have the audacity to challenge this wisdom are accused of scaremongering and of misreading the legislation. With respect, it is not the opponents who are misreading the legislation so much as the supporters who are reading the legislation in a manner which supports the wording which they would like us to believe was in the Bill or which they wish they had supported.

In its evidence to the Justice Committee the Law Society stated: -

"The Society believes that the governance changes in relation to the regulatory committee, and the provision of a statutory foundation in terms of section 92 reinforce the practical distinction of functions and enable the Society to comply with section 20(2)(b).

"In relation to section 20(2)(c), the section should provide that any governing council of an approved regulator should have an appropriate proportion of members who are not members of the professional or other body which is the approved regulator and that any regulatory committee is composed of at least 50% of non-members of the professional or other body."

Section 92 empowers the Council to appoint non-solicitors to the Council. Scottish Ministers reserve the power to make regulations regarding criteria for members, subject to consultation. In new section 3A(3)(b) of the 1980 Act, inserted by section 92(2)(c), are the Society’s ‘objectives’ the same as the objects of the Society under section 1 of the 1980 Act?

These are the only points in the written submission in which the Society considered it necessary to refer to Section 92. Clearly it wasn’t an issue that the Society thought worthy of comment.

In its oral evidence, the Society stated that it saw the need for the Lord President’s role to be one of approval rather than consultation but that apart, the issues raised by section 92 do not appear to have merited attention.

It was only when members spotted what was being done that the Society started backtracking furiously …… but by then it was too late.

The issue of the regulatory committees is covered in section 93 and is a separate matter on which lay involvement has been accepted as a public interest issue; the section 92 issue is all about representation.

As was pointed out before the Justice Committee, only 92 responses had been received by the Society to its consultation; members believed that the Society would be looking after their interests apparently.

But that is just the area in which the Society has failed its members.

How does government see the position?

One of my colleagues and I met the minister in early February as our concerns as to the direction of reform grew. Following that meeting the Bill Team Leader on behalf of the Minister responded to me by letter on 24 February. I will not paraphrase his response on this issue but include it in full lest I be accused of selective reproduction;

“Section 92 of the Bill amends section 3 of, and schedule 1 to, the Solicitors (Scotland) Act 1980 ("the 1980 Act") in order to allow the appointment of non-solicitor members to the Council. The amendment includes a provision (new paragraph 3A(4) of Schedule 1 to the 1980 Act) giving the Scottish Ministers a power to specify, by regulations, additional criteria which must be met by non-solicitors (or a proportion of them) in order to be eligible for appointment to the Council.

The Scottish Ministers are also given a power to prescribe, by regulations, a minimum number or proportion of non-solicitor members on the Council. The Society considers that there should be lay members on the Council, but argues that the composition of the Council cannot be changed immediately. As a consequence, no proportion is specified on the face of the Bill, although a figure of 20% has been informally agreed. This power allows the Scottish Ministers to ensure that the required changes are made, and to resolve any disagreements regarding the proportion of lay members.”

The Bill Team Leader then referred to the obligation to consult, to affirmative resolution by the Parliament and to the fact that the individuals appointed would be chosen by the Society.

It is clear however that the 20% figure appears to be one whose existence is based not on statute but on some informal agreement which does not have the force of law; it is made clear that it is the Ministers who will be able “to ensure that the required changes are made, and to resolve any disagreements regarding the proportion of lay members”.

Ministers will have the final say, not the profession.

There is nothing in section 92 that refers to 20% as a number; indeed no percentage cap is mentioned. One could envisage a position in which the Scottish Ministers in the future (for whatever reason) might determine that the appropriate percentage was 70% or 90% or 100%. Once enabling legislation exists, it would be foolhardy to assume that at some time someone would not use it.

As solicitors could we honestly advise our clients on the basis of an informal (and hence non binding) agreement of 20%, where the statute said no limit? At best, the “agreement” would only be binding (if at all) on the present government, not on any future government.

I derive little comfort from the fact that an affirmative motion is required in Parliament as such matters can be orchestrated for political purposes. Indeed, I would not expect that the power of Ministers is one which is likely to be exercised; after all it doesn’t need to be. With the power in place, the Ministers should be able to ensure that the threat of its application will be sufficient to ensure that the Society is compliant with the political will or else …….. It need not be spoken.

In the March 2010 Journal, Ian Smart comments, rightly, that no change is not an option – nor should it be so in a profession which has always embraced change. Solicitors confront change on a daily basis. However, if no change is not an option for the profession, why should the position of the Law Society be immune from the very change that so many of the members wish to occur? The regulatory and representational roles need not be combined; the fact that they have to date does not mean that it will be so forever.

No one is suggesting that the Society cannot continue as a representative of those who wish to be represented by it; all that is being suggested is that the role of the Society as the representative is no longer tenable in the 21st Century. It is trite to suggest given recent debate, but there are a significant number of the profession, perhaps a majority?, who believe that the Society has not been doing a good job of representation.

The profession is entitled to expect a representative who will fight their corner; lose sometimes; but fight none the less for the interests of the profession, for independence and for the public interest. That is all that is being sought. Why is it so difficult for the Society to accept that it should be seeking to provide such a service to its members that we will choose it as our representative? The fact that it believes that its role should be enshrined in statute suggests that it believes otherwise.