The profession in Scotland cannot afford to stand still in the face of regulatory change south of the border, as cross-border practice increases

After drawing breath in January, Society business quickly gathered pace last month. Among my own diary engagements, the annual conference of European law society and bar association presidents provided an excellent opportunity to consider current threats to justice across the continent. The impact of the economic climate on business activity has been well rehearsed, but the conference focused specifically on the risks associated with government seizing control of the judiciary by withholding and mismanaging funds for court services. The American Bar Association President, Bill Robinson, also told the conference that the theme of his term of office would be the fight against chronic underfunding of courts in the USA. Although there were no direct parallels with Scotland and the UK, the event sounded a clear warning against complacency.

Keeping up in regulation

Also last month, the Solicitors Regulation Authority held an event to celebrate its arrival as a licensing authority for alternative business structures in England & Wales. The SRA is already experiencing considerable interest in potential new business models. The issue of cross-border mergers has also attracted significant interest in recent weeks. Taking these together, it is apparent that large commercial firms are increasingly likely to have an international outlook rather than ally themselves to any one jurisdiction.

It is a useful reminder that we must not allow ourselves to fall behind – so proud of our separate jurisdiction, legal system and laws that we lose the ability to export our excellent jurisprudence to the rest of the world. We must continue to train young lawyers in a way that results in excellent legal thinking, high standards, integrity and trust. Equally, we must not then lose them to the Scottish profession because they have ambitions to practise beyond our boundaries.

At a practical level, it is imperative that solicitors, together with government, move into the new era of ABS quickly and confidently. In a radical change, the SRA now regulates firms as entities and solicitors as individuals. Firms are charged an entity fee based on turnover, and solicitors pay an individual fee, which amounts to around 40% of the cost of practising.

Although we cannot currently charge differential or entity fees, I am convinced that is the best way to allow the Scottish profession to flourish. It is vital that Scottish solicitors remain members of the Society wherever they work and whatever they do, particularly when cross-border mergers are likely to become more commonplace. In contributing their unique perspective, Scottish lawyers should be proud of their background and training.

Causes for concern

Beyond the shifting regulatory landscape, the Society continues to play a prominent part in a number of other ongoing discussions. The new HSBC mortgage system remains a cause of real concern. The latest version of documentation issued to solicitors acting for purchasers still contains a number of unacceptable requirements, while also using English conveyancing terminology. It is extremely disappointing that a resolution has yet to be found even though the Society raised the issue last month, after the new procedure was introduced without prior consultation. The system has been creating real difficulties for buyers, sellers and their agents. We want to work with HSBC on finding an acceptable way forward that helps resolve these issues.

The Society has also pressed the Scottish Court Service for full consultation on potential court closures, which was the subject of a Holyrood debate at the end of the month. As the problems with HSBC have demonstrated, proper consultation is essential before any significant change is introduced. Everyone involved in the justice system must be able to contribute to the debate and we have contacted our members in those areas likely to be affected for their views. It is vital that access to justice is safeguarded in communities across Scotland and any programme of closures is not viewed simply as cost-cutting. All options must be explored.

Constitution call

Following considerable work by our vice president-elect, Bruce Beveridge, and a team of solicitor and lay Council members, a draft constitution has been put to the membership for consultation. The many views and ideas expressed in recent months have been taken into account, hopefully satisfying earlier concerns. The result is an excellent scheme that can take us forward.

Change can be challenging but I feel strongly that these proposals will allow greater membership participation and better access to general meetings, while creating a more streamlined, efficient and flexible Council to carry out its statutory task of managing the business of the Society. It is time that our members had a constitution that is modern, effective and transparent.

The current draft is effectively an advanced work in progress, but the views of our members are still crucial. We are committed to implementing change only with your strong support.

The Author
Cameron Ritchie is President of the Law Society of Scotland e: cameronritchie@lawscot.org.uk
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