The Scottish Law Agents Society, established in 1884, is a voluntary association of Scottish Solicitors from all branches of the profession and from all parts of Scotland. We also have members practising abroad. The Society does not have any responsibility for regulation, but its objects including the promotion of legal services in Scotland. SLAS is active in scrutinising those organisations, including the Law Society of Scotland, which do exercise regulatory powers and makes representations to them when it is felt that the interest of the Solicitor branch of the legal profession are not being provided for properly. SLAS also response to consultative documents issued by the Scottish Government and the Scottish Law Commission and generally interests itself in the good government of Scotland. The Society has a number of specialist committees including a Court and Legal Aid Committee with a remit which includes all matters related to Criminal Law.

The Council of the Scottish Law Agents Society (“Council”) is grateful to the Council of the Law Society of Scotland (CLSS) for the opportunity to respond to a consultation regarding a proposed new constitution and standing orders and wishes to offer the following response. Council is grateful to CLSS also for the opportunity of an informal and constructive meeting on the topic which took place in a spirit of collegiate co-operation and the following observations, notwithstanding that they may differ from the conclusions proposed in the consultation papers, are offered in that same spirit. This response is set out in a form which corresponds, as much as possible, to the format of the consultation papers.

As a preliminary, general observation, Council is bound to state that the documents as currently drafted, while proposing alterations which may assist CLSS to discharge its regulatory function more efficiently and while creating a management board which seems appropriate, are, nevertheless, subject to error and inconsistency within themselves, confuse the respective functions of the Constitution and the Standing Orders and seek to remove power from the members of the Law Society and to increase the power of CLSS to the extent that the Society itself would be prevented from carrying out its fundamental statutory function. More particularly, these proposals seem to Council to be premature because they reflect the requirements of legislation which has not yet been passed, which may not eventually be passed or which may come to be passed in terms yet unknown and therefore the whole task may require to be repeated when the terms of that legislation come to be known.

BACKGROUND INFORMATION

Council appreciates the acknowledgement by CLSS that the proposal for 20% non-solicitor members on CLSS emanated from CLSS itself because it had been widely understood around the SLAS membership that this proposal had emanated from the Scottish government. With regard to the specific questions raised in the background information, we would offer the following responses.

1. The maximum number of members of CLSS should be enshrined in the constitution.

2. There should be no limit upon the number of terms of office that an elected Council member may serve but there should be a constitutional limit upon the period which a non elected member may serve on CLSS.

3. The figure of 100 is not reasonable. While we have been informed that the increase of this figure from the previous figure of 20 is required in order to reflect both the increased size of the profession and also considerations of practicability and convenience, we note that the new figure reflects only the former consideration and has been increased more or less in line with the increase of the size of the profession but takes no account of practicability or convenience and the figure should be moderated accordingly. In addition, the process of meetings, communications and travel which would be involved in assembling an agreement signed by 100 members would involve significant expense to those members while, at the same time, those members have already contributed their subscriptions towards the regulation and representation of the profession and, for that reason, the figure should be reduced to a more manageable size and the considered Council view is that an appropriate figure would be 42.

As the nature and demands of the business of general meetings cannot be foreseen in the constitution, the constitution should not impose a time limit upon that business but should rely upon the chairman and upon the established law and practice which regulates meetings.

4. The answer is no because the constitution and the standing orders are separate and distinct documents with separate and distinct purposes and it would be completely inappropriate and potentially challengeable, for example, to purport to change the meaning of the constitution by making an alteration to standing orders and not through the procedure required to alter the constitution itself.

STANDING ORDERS

1. No explanation is provided as to why these issues should be removed from the constitution and, in the absence of any substantial reason for that change, the view of Council is that these matters should remain enshrined in the constitution. Similarly, no reasons are advanced for requiring substantive motions to be signed by 20 members or for the number required to requisition a referendum to be increased from 50 to 100. For the reasons stated above in relation to the calling of general meetings, this figure should remain at 50 and should be enshrined in the constitution. However, Council would be very willing to re-consider this issue if substantive reasons were provided.

DRAFT CONSTITUTION

The following comments are offered in relation to the draft constitution, following the annotation contained in the draft.

2 (a)(ii) and (d). The number of appointed, non-elected members at CLSS, for the purposes of democratic accountability, should be kept to a practicable minimum and there appears to be no reason why the additional 12 members of the Society who reflect specific sectors of the profession should not be elected, rather than appointed.

12(c )(ii). As suggested above, the figure of 100 is excessive and should be changed to 42.

12(d). Discretionary powers are inherently undesirable and, in the absence of any reasons for the creation of this discretion, it should not be included.

13(a). Council has had some difficulty in understanding the references to Chief Executive and Secretary but this subsection appears to create the office of Chief Executive who already exists by virtue of being the Secretary of LSS and it may be sufficient simply to define the Secretary as being also the Chief Executive.

13(d). While it is not impossible to read this as being consistent with section 15(a) of the standing orders, it nevertheless seems that the one provision may have been written in ignorance of the existence of the other.

14(a)(i). The conduct of elections of Council members, board members and office-bearers are matters central to the constitution of the LSS and should be set out in the constitution and not in standing orders.

14(a)(v). LSS does not have regulatory functions in relation to any other persons or bodies and this provision cannot be approved until such a situation has arisen and the terms on which that situation has arisen are known.

16(d). This appears to have been inserted in error because the responsibility for the audit of the annual accounts must remain with CLSS and cannot be delegated to third parties who may, however, be employed by CLSS.

In section 19, the definition of the Chief Executive does not read easily with regulation 5(d) because the Chief Executive appears to have been created as a separate office and, in the definition of “place of business” there appears to be no provision for an employed solicitor unless one considers that an employed solicitor has his place of business at the address of his employer in which case no distinction would be made between the owner of that place of business and a person who was employed to work there.

STANDING ORDERS

1. Subsections (a), (b) and (c) go to the constitution of the Society which can only be changed by the membership and are not properly part of standing orders which can be altered by CLSS.

1(k) This does not read easily with regulations 5(d) and 18(b) as we seem to have several different terms for the same officer.

2. While the term “Chair” is used throughout this paragraph, the term “Chairman” is used elsewhere, see 4(d) and it seems that this should be made consistent.

2(f) This imposes an unnecessary discretion upon the Chair/Chairman and no reason is advanced as to why we should depart from 13.4 of the existing constitution.

3(a) This could only make sense if it applies to special general meetings, rather than general meetings of the Society. Clearly, members cannot be restricted as to the terms of motions made to the annual general meeting.

3(b) The reference to President appears to be in error for a reference to the Returning Officer, Chief Executive or Secretary and the period of 42 days is clearly excessive as it is undesirable to create an unnecessarily long time lapse between the lodging of a motion and its discussion at general meeting and this period should not be greater than 21 days.

3(c) There is no reason and it is contrary to the trend of using electronic means etc to extend the franchise, for the exclusion of proxy votes Also, It is unclear why only non-timeous motions may be subject to amendment proposed without written notice and why this should not apply to all substantive motions. It is unclear what would be the position as far as regards motions arising in the course of debate.

3(f) it is inconsistent with the responsibility of the Law Society set out at section 1 of the 1980 Act that the Society be prevented from binding Council in motions from general meetings. It is the Society and not CLSS which has the responsibility to discharge the requirements of section 1 and the Society cannot possibly be prevented from binding CLSS. Council representatives been told, informally, that this provision may have been inserted in error and we await clarification. It cannot proceed in its present terms.

4(i) It is not clear and contrary to the extension of the franchise that proxies should be excluded from considering the suspension of standing orders.

5(d) This imposes an unnecessary discretion upon the returning officer, particularly because it provides no guidance as to the basis of approval and no difficulties have been identified in connection with the operation of the current practice. The membership is less likely to trust the process where it is not open to review and it would be characteristic of human nature (present officials apart) if the process were to be less carefully maintained when there was no danger of review.

5(e) It must be clarified as to whether a proxy granted at a general meeting will remain valid for subsequent adjournments of that meeting because the current reading implies the opposite which would be unacceptable. Also, there is ambiguity in the reference to the “person named in the instrument” and this would be cured by changing the word “proposes” to “is entitled”.

5(i) It is not clear precisely what is contained within the reference “such matters” and, given that there is to be no appeal, then precision here is essential. In any case, it is contrary to the decision making process that there should be no right of appeal and this provision should be removed.

6. The word “approved” should be “presented for approval”.

7(b) There is confusion here as to who presides over the meeting, the Chief Executive or a Council member. In any case, we would query the competence of the Chief Executive to preside over a Council meeting.

8(c) The phrase “two thirds majority” has no meaning and we suggest that it should be specified as, “of those members voting, including by proxies”.

15(a) This is difficult to read along with the constitution where the Chief Executive already has authority to appoint employees.

15(b) The authority of the Chief Executive to decide terms of employment should be specified in the constitution and should, in any case, be subject to determination by CLSS and, ultimately of the membership which provides the funding for wages and salary.

16(b)The reference to “Council” should perhaps be a reference to the Registrar or Chief Executive unless it is the intention that the document has to be circulated around the whole of Council before the obligation to convene a referendum arises. Also, the number of 100 members is excessive and, as stated above, should be 42.

18(b) Query whether the reference to returning officer is in error for a reference to the Chief Executive.

20(a)(i) The reference to the 1980 Act should be a reference to that Act, as amended.

20(b) The reference to “these regulations” would appear to be in error for a reference to “these orders”.

SUPPLEMENTARY COMMENTS

It is not clear why the provisions of sections 6, 7, 8, 9 and 10 of the existing standing orders have been omitted and it seems that these should be inserted either in their existing terms or as may be amended.

This response is not issued as confidential and may be made available upon request.



Secretary