The Chief Executive of the WS Society Robert Pirrie has proposed that a joint council of Scotland’s independent legal bodies should take over the representational role currently undertaken by the Law Society, arguing that the present arrangement is “fundamentally untenable”.

Pirrie’s, elaborating on his call last week for the representational role of the Law Society to be undertaken by bodies such as the WS Society or local faculties, agrees that the Society should continue to regulate solicitors, but the functions need to be separated out as the Legal Services Bill comes into force.

“I do not think for a moment that the introduction of ABS and more accountable regulation is a problem for solicitors. That is to be welcomed. But there is problem for the Law Society as currently structured,” he says.

“The Bill as it stands will perpetuate the Law Society’s confusion of purpose to the detriment of Scotland’s independent legal profession and the reputation of Scotland’s legal system.

“It is hardly surprising or objectionable in the 21st century that a statutory regulator of legal services will have a close relationship with government, and significant involvement from outside the legal profession. Nobody should be swimming against that particular tide. The problem for the Law Society is that closer government involvement in its regulatory function through powers the Bill would give the Scottish Government in relation to control and operation of the Law Society, tips the balance in the already problematic relationship with its representative function.

“In the aftermath of the Clementi Review in England and Wales, the conventional wisdom was that s.1 of the Solicitors (Scotland) Act 1980 (the Law Society’s poisoned chalice of promoting both the interests of the public and the interests of solicitors) was no longer tenable. Yet, without missing a beat, the Scottish Government has produced a Bill that happily contemplates carrying on as before, despite increasing government powers of intervention in the Law Society.

“A first year law student would easily reach the conclusion that it is fundamentally untenable to have the representative function for solicitors within a body whose Council is controlled by the government and whose responsibility it is to regulate the legal profession through a non-solicitor controlled committee. The legal system and its practitioners must be independent of the state. This is basic, applied constitutional principle.”

Pirrie argues that prior to the creation of the Law Society some 60 years ago, both regulation and representation were carried out by a co-ordinating council of Scotland’s independent legal bodies. He says that a reprise of that model of representation may be a suitable solution.

“Each solicitor and law firm would have the freedom to affiliate to an independent, representative body suitable to their individual business needs, and to participate in a collective representation of their independent profession,” he says.

“We are at an important historical juncture, not just for the Law Society, but for all Scottish solicitors. This is a time to set aside personal and organisational interests and focus on the fundamentals. It is right to have a new regulatory framework for Scottish-based legal services that is fit for the standards of the 21st century. I urge all solicitors to think carefully about how we achieve this in a manner that best suits the needs of solicitors’ businesses and preserves the independence and integrity of our profession.”

Law Society President Ian Smart said it was right for the Society to aim to be the 21st century national professional body for solicitors.

"All professional bodies worthy of that title represent and regulate their members which is why it is the model used by the Institute of Chartered Accountants in Scotland, the Royal Incorporation of Architects in Scotland and the Royal Institute of Chartered Surveyors amongst others in Scotland as well as similar bodies and law societies the world over. It is cost effective, practical, businesslike and leads to a coordinated, professional approach which works in the interests of the public," he said.

"The reason that it has stood the test of time, survived parliamentary, commission, profession and customer scrutiny and remains fit for purpose is because it works. It works for the profession, their businesses and organisations and their clients. A members' body which regulates and represents its members ensures high, practical and ethical standards as well as excellent services and supports its members as a profession.  The 1880 members who responded to the Society's recent survey stated that they are broadly satisfied with the representative and support services the Society provides, would like all current services to continue and would like to have more services introduced and the Society is focusing on meeting those needs.

He added that the Society is changing its structure to ensure that the functions are sufficiently separated to satisfy modern governance requirements.

Pirrie and the Deputy Keeper of the Signet Caroline Docherty are giving evidence to the Justice Committee’s consideration of the Legal Services Bill on 14 December. Pirrie's comments can be read in full in the forthcoming edition of The Firm.