Our Law Society is in serious need of a more efficient and effective constitution. We all agree on that, but as to the content of our new governance structure, sadly, there is little or no consensus. In part, I think this could have been avoided if we had embraced a more formative style of consultation.

Don’t get me wrong, I’m not suggesting the Law Society of Scotland isn’t consulting. I’ve been involved in cases where public bodies have ‘carried out’ statutory ‘consultation’ by telephoning folk, to tell them 'the news'. We’ll have a proper debate with all solicitors genuinely included, but when you’ve already produced a new constitution and standing orders, you are consulting from a formulated position.

When I was asked to draft a new constitution for the students representative council of a university, we had preliminary meetings to ascertain what the stakeholders wanted their constitution to deliver. It was inclusive and created a lot of good will. From that we drilled down and established the core principles and operational parameters that everyone was happy with; and only then did we work on the detail.

Our problem is that we haven’t agreed the fundamentals. To take two examples. First, the ability of ordinary members to influence Council policy. The new constitution would make this more difficult. Over on the Journal Online, Peter Nicholson has said "I suggested before that a balance should be struck between encouraging the democratic process and not burdening the Society (and the members who pay for it) with the whims of a few, and I stand by that principle".

When have the ‘whims of a few’ ever burdened us? The only ‘whims’ – or as I like to say, the democractic engagement of members in their own organisation - we’ve had in recent years, are the Scottish Law Agents Society’s SGM motion on ABS, and the second referendum on the ‘dual functions’. I’ll declare an interest as I’ve engaged in both of these events, however, I’m very proud of colleagues for raising these issues, because they are of fundamental importance to the independence of our profession.

If anything, what I’ve learned this year is that we need to strengthen our constitution so that ordinary members can have more control as a matter of good governance and democratic accountability.

Can you imagine if a trade union was told it had to reserve 20% of places on its governing body to non-members? Or for that matter, why shouldn’t all political parties and the Scottish Parliament’s corporate body have non-members on their boards? Our Law Society already has 50% non-solicitor membership on all of its regulatory committees. But the Law Society is also our trade union, and when it represents us as solicitors, it is entitled to insist that this representative function must be done by its members.

This is a matter of fundamental principle. For those such as the OFT and Consumer Focus Scotland who demand that 50% of Council should be non-solicitors, I say this. Why not ring-fence full power to the regulatory committees (which already have 50% lay membership) for all regulatory legal service issues in Scotland? That would statisfy the public and consumer interests. But what you must not do – as a matter of freedom of association in terms of Article 11 of the ECHR - is force members to be represented by non-members.

Mike