1. The Council of the Royal Faculty of Procurators in Glasgow (“the Faculty”) wishes to express significant concerns regarding the proposed changes to the Constitution and Standing Orders of the Law Society of Scotland. It is noted that the view of the Law Society of Scotland is that they “need to take account of changes to governance practices especially over the last ten years. We also want a constitution that is more flexible and can adapt to new technologies and developments within the profession”. On the face of it this seems uncontroversial. However, when properly looked at, the proposed changes have little or nothing to do with flexibility or new technologies and instead constitute an attempt to concentrate further power in the Council of the Law Society at the expense of the members. The Faculty is unaware of any changes to governance practices that would support a move towards a situation that is fundamentally undemocratic and would suggest that the stated reasons for the proposed changes are disingenuous.

2. While a detailed response is set out below, the Faculty would submit that, rather than ensuring that the Law Society is “fit for purpose”, the proposed changes would mean that the democratic wishes of members can be ignored by the Council and that it will be increasingly difficult for the genuinely held concerns of members to be aired and acted upon. It is also concerning that a document that has been prepared by the Law Society contains both a number of errors in drafting and a number of proposals that are ultra vires and hence not competent. The extent of the errors should act as a warning as to the dangers of increasing the powers of the Council of the Law Society. In all of the circumstances it cannot be said that in proposing the changes to the constitution and standing orders the Law Society is meeting its statutory duty to promote either the interests of the solicitors’ profession in Scotland or the interests of the public in relation to that profession.

II. PROPOSED CHANGES WHICH ARE ULTRA VIRES

3. Where the draft Constitution seeks to deal with changes in the Legal Services Bill (“LSB”) it is premature to put a Constitution to the members for approval before LSB has become law. Otherwise the changes may be inappropriate and require revision in a short time.

4. Reference is made to the Annexation dealing with “Changing the basis of the Incorporation and Constitution of the Law Society of Scotland (“LSS”)”. The Solicitors (Scotland) Act 1980 as amended (“The Act”) does not provide a statutory basis for LSS to act as regulator for LLSPs. Section 91 of the Legal Services Bill seeks to do so. However this attempt to do this sets up fundamental and irreconcilable conflicts of interest for LSS which the draft Constitution fails to and cannot deal with.

5. Constitution Clause 14. Under section 3(2) of the 1980 Act the functions of the Council are limited to those conferred by this Act and sections 16 and 23 of the 1980 Act. Membership is governed by section 2 and Schedule 1.3. Under section 2 or Schedule 1 of the 1980 Act the Council has no power to make provision for any other different classes of membership.

6. Constitution Clause 14 (v) refers to statutory regulatory functions which the Council does not have and may have in future. The Clause is premature. It is ultra vires. This provision should await a change in legislation.

7. Constitution Clause 14 (v): A power to regulate persons or bodies which are not members of the Society should not be in Standing Orders where they can be changed by Council without reference to the members. That power can only be given by a new statute.

8. Constitution Clause 15. The Law Society is a body incorporated by Statute. As such it must operate within the powers conferred on it by Statute. Section 1 of the 1980 Act sets out the functions and powers of the Society. Clause 15 seeks to confer on the Society the power to make rules in addition. This rule apparently seeks to give power to the Society to act ultra vires which it cannot do. Clause 15 is inept.

III. PROPOSED CHANGES WHICH WOULD CHANGE THE RELATIONSHIP BETWEEN THE COUNCIL AND THE MEMBERSHIP OF THE SOCIETY

9. Standing Orders (“SO”) at 1. The Rules for elections to Council should be in the Constitution not in the SO. This is important because SO can be changed by Council. (Present Constitution at Clause 25). The Constitution can only be changed by a two thirds majority of members (Solicitors (Scotland) Act 1980 Schedule 1.5.). The same objection applies to all those provisions which have been moved from the Constitution to the SO.

10. SO 3 (a): Substantive Motions to General Meetings: This is covered at present in 2 ways. Firstly in the Constitution at 13(3) 10 members may sign a requisition following which the Council must include the motion in the Notice of the General Meeting. 42 days notice of the requisition is required. This arrangement is in common use. Secondly the present Standing Orders at 3(a) deal with motions relating to business specified in the Notice calling the meeting. The draft Constitution is silent on the matter. The draft Standing Orders at 3(a) seems to exclude the possibility of a requisition. 3 (b) sees to refer to a requisition but does not say so. The drafting is utterly unclear and confused. There is no good reason to change the status quo.

11. SO 3 (f): This means that the Council is free to ignore the wishes of the members. It is a fundamental change from the present Constitution at 13(6). It removes power from the members in a way for which there is no basis in Part I or Schedule 1 of the 1980 Act. It is fundamentally undemocratic and unacceptable. Refer to the Annexation.

12. A provision of the kind in SO 3 (f) should not be in Standing Orders. It should be in the Constitution as at present.

13. The present Constitution allows the Council to make Standing Orders with regard to the conduct of the business at meetings of the Society or the Council or any committee or subcommittee of the Council (Clauses 13.5 and 25.). The range of matters to be included in Standing Orders at Clause 14 of the draft Constitution is of an entirely different character. They include the democratic rights of the members in relation to elections to Council, the calling of meetings of the Society, and “any other matter which it thinks would facilitate the conduct of the business of the Society”. This is a significant change of power and responsibility. The need for this change has not been explained. It includes matters which are not for the Standing Orders.

14. Neither the Constitution nor the SO include any requirement for notice of a General Meeting. This is fully covered in the present Constitution at 12.4. It is a matter for the Constitution. This omission could severely prejudice the members in the exercise of their rights. It is fundamentally undemocratic and unacceptable.

15. SO 3 (c): The requirement for approval by a two thirds majority of the meeting is not appropriate. It should be a simple majority. If this is available the Chairman should have no veto and his consent should not be needed.

16. SO 4 (a): There is no good reason to change the rule that amendments to motions do not need notice. Although it is desirable that such notice should be given in appropriate circumstances, a rule of this kind restricts the freedom of the members in general meeting in a way which is not necessary or appropriate.

17. SO 4 (i): Voting for motions for suspension of SO should not exclude proxy votes. Proxy votes should be taken into account in a decision which might be of great importance. That is the present position. It should not be changed.

18. Constitution at 12 (c) requires the Chief Executive to convene an SGM on receipt of a requisition by at least 100 members. The present Rule in the Constitution at 12. (3) requires the signature of 20 members. There is no good reason for this change. It appears to be directed solely at reducing the rights of members. It should not be made.

19. SO at 16(b): The number of members required to request a referendum would be increased from 50 to 100. There is no good reason for this change. It appears to be directed solely at reducing the rights of members. It should not be made.

20. The Council of the Society: The following matters in the present Constitution do not appear in either the draft Constitution or SO. These matters all affect the rights of members. They should be retained in the Constitution and not delegated to others.

? Voting by members who have no place of business in Scotland
? Election of Council members by Rotation.
? Co-option of Council Members by Council
? Rules for conduct of elections.
? Casual vacancies in Council

IV. OTHER COMMENTS ON THE DRAFT CONSTITUTION

21. The rule in 2(f) of the draft SO regarding what happens if a quorum is not present at a General Meeting is not an adequate substitute for the Rule 13.4. of the present Constitution.

22. Contrary to Clause 13(b) the Act does not define the functions of the Secretary.

23. The proposal is that the Nominations committee which is appointed by Council will have the right and obligation to appoint 24 out of 60 members of Council or forty percent of the Council. In appointing members of the Society as members of Council, the Nominations Committee “must have regard to the representation of specific sectors of the solicitors' profession on the Council”. This is inappropriate if democratic principles are to be respected. If there are specific sectors of the solicitors' profession, it should be possible to make arrangements for them to be represented by democratic election.

24. Clause 4 - Committees of Council. There is no indication of any part of the committee structure which has responsibility for the promotion of the interest of the solicitors’ profession in Scotland as set out in the 1980 Act at section 1. This should be formally recognised.

25. Clause 5 (c) – The Board. It is not clear whether the Council is bound to follow the recommendation of the Nominations Committee. This is ambiguous and should be clear.

26. There are no special provisions for the election of President and Vice President as set out in Clause 15 of the present Constitution. No reason has been given for the change. These matters are of concern to the members of the Society and not only to Council members. The provision in 1(b) of the SO is not adequate.

27. Clause 16 of the draft Constitution imposes obligations on the auditors who are third parties to the document. A constitution cannot bind third parties. It is for the Council to arrange the audit. The requirements of 21.2 of the present Constitution have been omitted. They should not have been.

28. Clause 16 (e). Delete the words “or an abstract of”. Members are entitled to see the full Accounts in advance of the General Meeting. The Law Society is a body corporate incorporated under the Solicitors (Scotland) Act 1980 as amended. It is not incorporated under the Companies Act and its accounts do not appear on the Companies Register, nor are they otherwise published. In the interests of proper accounting to its members and of transparency the full accounts must be available. In so far as the Law Society acts as regulator in the public interest this is essential.

29. Clause 19: Definition of place of business: It is not clear whether the place of business of an employed solicitor is the place of employment or the residence of the solicitor.

30. Clause 4. Reference is made to the “Chairman” in contract to previous references to the “Chair”.

V. OTHER COMMENTS ON THE DRAFT STANDING ORDERS

31. The meaning and purpose of 1 (p) is unclear.

32. Clause 2(a) and Clause 7(b): The phrase “in proceedings presided over by the Chief Executive of the Society” is meaningless in the absence of any provision allowing the appointment of the Chief Executive to preside over a general meeting. It should be omitted.

33. Clause 4(a). The words “Subject to order 4 (c)” are meaningless.

34. The returning officer in 5(d) is quite different from the returning officer in Clause 1 and SO Clause 18 (b) which purports to apply to all elections. This ambiguous drafting. The Chair of a meeting cannot appoint a returning officer to carry out task before the meeting takes place as this sub clause provides. If there is concern about the form of the instrument, its terms should be specified in an annexation. Otherwise it either is or is not a valid legal document.

35. Clause 5 (e): The words “or adjourned meeting” should be deleted, otherwise fresh proxies would be required for an adjourned meeting. This matter has caused difficulty in the recent past. It should be made clear what is intended. It is suggested that no new proxies should be admitted to an adjourned meeting.

36. Clause 5 (e): the meaning of “person named in the instrument” is not clear. There will be at least two.

37. Clause 5 (i) would remove members’ legal rights and is not appropriate.

38. Clause 15 (a): This conflicts directly with Clause 13 (d) of the draft Constitution.

39. Clause 15 (b): This should be included in the description of the functions of the Chief Executive set out in 13. of the draft Constitution.

40. Clause 20 (a): The reference to Solicitors (Scotland) Act 1980 should include the amendments to that Act.

41. Clause 20 (b): the word “regulations” should be “Standing Orders”.

42. The provisions in 4(b) of the present Standing Orders have been omitted and should be included.

43. The provisions in 6(2) and 6(3) and 6(4) and 7 and 8 and 9 and 10 of the present Standing Orders have been omitted and should be included.

44. There is unnecessary inconsistency and confusion as regards how documents are to be presented to the Law Society. For example the SO includes the following: The President: - 3(b), 4(a), The Secretary: 5(e): The Council: 16 (b).