There has much talk of the need for the Scottish legal profession to unite and come together following the split over Alternative Business Structures (ABS). Before I deal with that important substantive issue, it may be helpful to address a couple of minor issues. John Scott of Capital Defence Lawyers has asked where were the opponents of ABS in 2007 or 2008?

As it happens, Govan Law Centre has consistently opposed the external ownership of Scottish law firms since the start of this debate, as has many other opponents of ABS. But I would ask John why is the stage at which people engage in any debate relevant? You wouldn’t ignore new evidence exposing a wrongful conviction because it wasn’t produced at trial, so why nit-pick on timing? If concerns are well founded, they should be respected on that basis.

Janet Hood claims that I already work for an ABS ‘in all but name’. That’s a flawed comparison. Law centres are a distinct not for profit, public legal service, expressly recognised by section 65 of the Solicitors (Scotland) Act 1980. There is no external ownership of law centres; no shares to be bought and traded. And the public legal services provided by them are delivered by an independent firm of solicitors.

One of the primary concerns with the Legal Services (Scotland) Bill has been that it would enable almost anyone with enough cash to own shares in a Scottish law firm, and exert influence and control over that firm: that is the area of principled concern, and with respect, the McGrigors’ proposed amendment to the SGM motion does not address or resolve that concern.

We come to the question of unity. I agree in principle that we are stronger as a united profession, and that is the position which we should all strive to achieve.

Falkirk solicitor, Gordon Addison asks why can’t we put our mutual interests aside and “get behind our leadership to fight the big battle?” We could do, but the fact our leadership are holed up behind enemy lines is a bit of a stumbling block. Gordon argues that the ‘Law Society’ are best placed to “organise that which we have left, to mitigate the damage caused, both self inflicted and incurred by the statute which might effectively open up control of the Scottish legal profession to all and sundry”. If only that were true.

Unity requires leadership, and good leadership has been wholly absent from this debate. The reality is that the ‘Law Society’ has been intimately involved in the drafting and support of the ill-conceived and flawed Legal Services (Scotland) Bill from its conception, throughout its gestation, and following its birth.

It cared not that the Scottish Government would hold Scottish solicitors beneath a political Sword of Damocles by way of section 92, and its position on this provision only shifted in response to principled and reasoned objection from well respected practitioners; who our President so ungraciously described as ‘on the wider fringes of the debate’.

One of the things this debate has highlighted is that when we talk of the ‘Law Society’ who are we referring to? Certainly not the membership of 10,500 solicitors as recent events have shown. Essentially, the ‘Law Society’ has all too often meant the President, Vice President, and the non-legally qualified CEO – which I shall refer to as the ‘de facto Law Society’ for want of better name.

The way the de facto Law Society has utilised discretionary power in practice indicates a massive governance problem for our Law Society, and I firmly believe this is the root of many of our current difficulties. For example, when the de facto Law Society appreciated that opinion was divided over ABS it should have acted as a honest broker. It didn’t.

The de facto Law Society has used its discretionary power, and the considerable resources at its disposal, to promote and thrust ABS onto its membership at every twist and turn. Democratic meetings have been adjourned, promises broken, referendum questions rigged, unlawful notices issued, and opponents rubbished. Our Journal has become the official organ for ABS disinformation and propaganda.

Let me be very clear, the de facto Law Society have secured no concessions for the profession in terms of the Bill; rather they are part of the problem, not the solution. In order for the profession to reunite there must be a realisation that a comprise on ABS ‘max’ does not mean ABS ‘lite’. The problem is with external ownership, and not multi-disciplinary business arrangements.

A solution can be found, but it will require mutual respect for views expressed by members and for the ‘Law Society’ to become the honest broker of all of its members. That has not happened so far. And I fear it will only occur if the de facto Law Society and other members of Council are ultimately replaced by those who value and respect the opinions of their colleagues – whether they agree with them or not.

Finally, for those who say the Bill is already a fait accompli it is not. After the Bill’s Stage 1 debate and vote, no outcome can be ruled in, or out, if the political will is there. As a minority administration the Scottish Government does not enjoy the ability to impose its will on Parliament. And as I have argued, when you consider that the de facto Law Society have embraced and promoted this disaster of a Bill, the only way is up.

Mike