My name is John Scott. I am a legal aid practitioner in a firm which handles only criminal cases. I am not a member of the Council of the Law Society. Why, you may wonder, am I writing about ABS?

I first became interested in the ABS debate in 2007 even though, as far as I could see, the changes proposed through ABS would not directly affect me. At Capital Defence Lawyers we have not exactly been beating off potential investors with a big stick. Tesco and other multinationals still seem uninterested in us although we have been getting funny looks from the Scotmid on the other side of Leith Walk.

I am aware, however, of the possible effects on the profession generally and it is in them that we should all take an interest. An indication of that realisation is reflected in the numbers who responded to the recent referendum.

When I realised that this was a major issue concerning the identity of the profession I wanted to inform myself on the arguments. I was able to do that through material in the Journal as well as a consultation paper issued in 2007 by the Society. This was followed by a consultation by the Government in early 2009. Incidentally, I am not patting myself on the back for my insight. My point is rather that this was a debate which was hard to miss.

In addition to all of this the Law Society of Scotland organised a debate on ABS. This was a big event staged at the Mound in Edinburgh on 28th September 2007. The Society arranged speakers and welcomed delegates from various perspectives, including some from England and Europe who expressed serious reservations about the proposed changes, based on their experiences with similar situations.

(This is an interesting contrast with what GBA President John McGovern recently told the Firm –
“the LSS arranged... er... NO open debates anywhere on ABS- just “roadshows” with their own speakers – all ABS supporters”.
There were Glasgow solicitors present at the 2007 debate although I accept that I don’t recall John being there. )

Not everyone is able to attend such debates, especially when they are held in the morning, but the turnout was excellent and the Journal covered it as well. The Cabinet Secretary spoke at the debate and made the Government’s “no change is not an option” position clear.

I had suspected that the event would be swamped with our corporate brethren but the debate was actually taken to the big firms from the outset. Following the formal speakers a sole practitioner from Denny opened the debate by saying that he didn’t mind the big firms “whoring” after money but he did object to them retaining, and sullying, the title of “Scottish solicitor”.

I was heartened by the debate and composed the response of the Edinburgh Bar Association to the Law Society consultation.
At the 2008 AGM those of us in opposition to ABS lost. You might remember that AGM. It was also the one where the Glasgow Bar Association submitted a motion about underfunding in civil legal aid – and then failed to show up to speak to it. This was a pity because some corporate colleagues who had come to see the ABS vote go through were publicly shamed by a Council member into remaining for this debate, having started to head for the door at the conclusion of the ABS vote.

Where does all of that leave us now? It is clear that things have moved on. The Legal Services (Scotland) Bill is fairly well into its passage through Holyrood. Consequently there are issues of credibility for the profession in how we approach any attempt to reopen the debate.

Indeed, for those who have genuine concerns which they have voiced only in the past few months I have a simple question - where were you in 2007? Or 2008? I have heard mention of some colleagues“sleepwalking” through the implications of the issue. To sleepwalk through a whole calendar year may be a misfortune. To sleepwalk through 2 or 3 looks like carelessness. It will not impress those outwith the profession who are also following the Bill’s progress.

I wonder what the debate would have been like if we had seen in 2007 some of the strongly held and eloquently argued views which we have seen in the past few months. I am disappointed that some people seem to have engaged with the debate only when it is almost too late. Perhaps even the Bill itself would have been different if we had all engaged in discussion at the same time. We may never know.

Perhaps the Society could have done more to stimulate debate about ABS but I think that the profession must take some responsibility itself in this matter. No one is going to read your Journal for you. I know we are all busy but, if that were a reasonable excuse, we would never raise our eyes to the horizon. I actually think that the Society did as much as it could reasonably have been expected to do to stimulate debate. I am sure that it has had to reconsider some of its approach in light of recent events but I am concerned that a number of different arguments are being conflated and, once more, the Society is seen as a suitable scapegoat for all ills.

I was opposed to the ABS changes because of my unallayed fears about independence, conflict of interest and commercial pressures. It didn’t help that, at the Mound event, Julia Clark from Which Magazine suggested that these were details which could be worked out in due course. That may be an indication of the difference between the consumer interest and the public interest.
My view remains that, as “the market” has no morals, we need to avoid increasing the risk of pressure to abandon or weaken our core values. It seems that the Legal Services Bill has improved even recently in relation to safeguards to prevent this. I am sure it can be further improved and perhaps the recent dawning of realisation in some parts may assist in that process. I am not convinced, however, that we can tear up the whole Bill and start again.

In the recent debate I regret to say that as well as good-faith disagreement there has been much heated and personalised content to some contributions. I believe, however, that a degree of perspective is necessary. It is becoming harder to see the arguments for the rhetoric. The personalising of the debate assists no one and I would urge colleagues to reflect on their attacks on people who are acting in good faith. By all means let us disagree but let us do so in a reasonable, respectful and honest manner.

John Scott is a solicitor advocate and Past President of the Edinburgh Bar Association