The Glasgow Bar Association was formed in 1959. The objects of the Association, as contained in its constitution, include the promotion of access to legal services and to justice and to consider and, if necessary, formulate proposals and initiate action for law reform and to consider and monitor proposals made by other bodies for law reform. The GBA also offers legal education programmes and sponsors and supports legal education and debate at Scotland's Universities. We are an independent representative body although by statute compelled as individuals to be members of the Law Society of Scotland.

Today the GBA remains a strong, independent body. Earlier this year, it amended its constitution to allow Corporate Membership and current member levels sit at around three hundred, by far the biggest Bar Association in the country. The contents of this submission are based on detailed information and experience which has been obtained by GBA members.

Comments and Response
We refer to the materials posted on the Society’s website soliciting comments on a proposed new Constitution and Standing Orders for the Society. We have had the experience of dealing with many of the Society’s constitutional and procedural activities over the last year, and are very conscious of the issues being raised. We have had the benefit of reading the learned submissions by such august bodies as the Royal Faculty of Procurators in Glasgow and the Scottish Law Agents Society and are aware of proposed submissions from others. We do not propose to repeat the detailed clause by clause analysis and critique of the proposals, but will rest on some general comments and a response to the five questions which the Council thought to ask the membership.

General
We presume that the drafts on the Law Society website are intended to be some sort of joke. Effectively, they provide that under no circumstances will the membership ever have any say in what Council does or in the running of the Society.

Clearly the attempt at democracy this year has so rattled the Executive that the membership require to be disenfranchised. Had these provisions been in place, none of the successes of the last year would have been possible.

For example, even if a resolution were passed at a meeting with a 99% majority, the 60 (too many) members of Council can ignore it and the members have no redress. We are well aware of the procedural devices and machinations of Council and certain of its supporters in endeavouring to defeat motions advanced by such “extremists” or those “on the fringes” (being anyone who disagreed with Council/Law Society establishment) in the profession, such as the Scottish Law Agents Society. Indeed, the concern by the Society to prevent the membership from expressing its views on the SLAS motion, and its persistent adverse commentaries on the GBA in the last two years, following upon the SGM in August 2008 when the then Vice President stated openly that he had considered “rigging the vote” against the GBA, evinced behaviour which would not have been seen as out of place in a totalitarian regime.

The Law Society of Scotland is a members’ organisation; its functions are set out clearly in the Solicitors (Scotland) Act 1980 which, in due course, may be amended by the present Legal Services (Scotland) Bill. To rush this consultation before the terms of the new Act have been settled is not only premature, it is insulting to the profession.

The Consultation commenced in mid June 2010; responses are due by 23 July 2010 and we are told that the drafts will be settled by Council at its meeting on 6 August 2010 – some 2 weeks later. Assuming, not unreasonably, that the papers will require to be circulated to Council members before the meeting on the 6th, this suggests that all the responses will be collated, considered and changes made to the published drafts in a period of little more than one week. This in a period in which many of the profession will be on holiday and in a timescale which hardly allows other organisations to obtain the views of its membership to the proposed changes.

Putting it simply, the consultation is a charade and it is clear that the Council (or perhaps more precisely, the Executive) have no interest whatsoever in any views which might conflict with the wholly inappropriate power grab provided for in the drafts.

Turning then to the specific areas which have been raised in the Background Note: -

Council
The paper states “It is fundamental to role (sic) of the Council of the Society that it is able to represent the interests of the solicitor profession.” The drafts seems to take no account of the Second Stage reading of the Legal Services Bill, as it still suggests imposition of 20% of lay members on Council. It is clear from the Bill debates that there is no legislative requirement for any specific percentage of Council to be non-solicitor. Indeed, with the separation of the regulation committees which require to have a 50/50 solicitor/non-solicitor composition, there is no reason whatsoever for non-solicitors to have an automatic representation on Council, given that the principal function of Council is to represent the interests of its members, all of whom are solicitors. If there is a particular person whose expertise can be seen to be valuable to Council, that person may be invited to attend for that purpose, but there is no reason why this requires to be a fixed percentage.

Public Interest Protection is dealt with by the regulation committees, not by Council. The drafts fail (perhaps deliberately) to recognise this fact.

The Size of Council
Council is already too large and far too expensive. There is no need to increase the size of Council; indeed, there would be a very strong argument for Council to be less than half its present size. The suggested number of 60 is only achieved by creating large numbers of distinct “interest groups”, by giving each its own representation and thereafter extrapolating these numbers so that the balance between private practice / in-house / government remains equal and by assuming the 20% non solicitor composition. Council could usefully be reduced by 2/3rds without any loss of representation. If the new Constitution created a democratic Council, representation of all the different interests would be achieved through member democracy rather than preserved interests. However, the new draft Constitution sets it face against member democracy.

Contrary to what is stated in the final paragraph of this section, the proposals for the Constitution do not “permit the Society to evolve and develop as its members, the profession and civic society that it serves change over the years to come.” Despite the comments from the Chief Executive, “civic society” has no place in the Solicitors (Scotland) Act regime, other in relation to the regulation committees, which have been dealt with separately.

The role of the Board
Most members are at a loss to understand the references here as, from any reading of the present Constitution, there is no basis for delegation of executive power to a Board. From the proposals now being made, it is clear that almost all matters - property, banking and other duties, operational issues – will be handled by the Board. It is therefore unclear what the intended Council of 60 will do, other than entail costs and incur expenses. Council appears to be restricted to an oversight role – of a Corporate Plan and Budget, on which they appear to have little input, their role being to approve these. Indeed the background paper goes further, suggesting that activities will be delegated to the Chief Executive who, regrettably, is not presently a solicitor.

Specific Questions
Constitution
There should be a maximum number of members of Council; that number should, in total, be not greater than 30. The difficulty in finding enough persons to fill spaces on the existing Council (44 + 9 co-opted) emphasises that there is no demand for a larger Council (or indeed one of the present size).

A three year term is appropriate but no member should serve more than 3 terms without there being a break of at least 3 years before the person is eligible for re-election.

The number of 100 to convene a General meeting is too high. The present number (20) has not proved inappropriate and the proposed increase is merely part of an attempt by the Chief Executive, Board and Council to disenfranchise the membership. The power to convene a General Meeting has been used very sparingly in the last 60 years, but remains an important element of the necessary democracy in a members organisation. Clause 12(d) of the draft constitution should refer to the date the requisition is received by the Society, not from the date it is passed to the Chief Executive as that could permit an indefinite delay in convening a requisitioned Special General Meeting by the simple expedient of not passing the requisition to the Chief Executive

Should be in the Constitution as only the Constitution has any (very limited) member input.

Standing Orders

No, the present levels should be retained; the increases are merely a blatant attempt by the Executive to prevent the membership holding it to account. In calculating the quorum for any meeting, members of Council should be excluded.
Overall the Standing Orders represent a massive shift of power from the membership to Council and for that reason, many of the provisions are unacceptable. However, given the clear aim of the drafts in disenfranchising the membership and the fact that the Standing Orders are made by Council, there seems little point at this stage in line by line critique of the proposals.

There are a number of timing inconsistencies where it would appear impossible for the members to raise any matters at meetings given that notice has to be given at a date earlier than one on which the meeting required to be called. Clause 3(f) is a complete affront to the membership as it basically states that the members don’t matter, it is only Council who count. As the membership has seen in the last year, there are few limits to what Council will do to prevent the will of the membership, Clause 3(f) is the last nail in that particular coffin.

Equally, Clauses 4(a) and 4(c) are designed solely to prevent member challenge to the Council.

Clause 4(i) should not exclude Proxy votes.

The Returning Officer should not include the Chief Executive – clause 5(g) / 9(b) as the CE is too closely connected to Council.

Clause 16(b) limit should be set at 20 and clause 16(d) should be deleted as it is again a blatant attempt to disenfranchise the membership.

Clause 16 should make it clear (as should clauses 2-10) that the Society, its staff and its resources may not be used in the support or opposition of any motion, vote or referendum.


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

22nd July 2010