An answer to the claim that it breaches the Human Rights Convention to require solicitors to belong to a body that represents as well as regulates

In his article “Rights both ways” (Journal, May 2012, 16), John McGovern argues that the fact that Scottish solicitors are required by statute to be members of the Law Society of Scotland is contrary to article 11 of the European Convention on Human Rights, because the Society has both regulatory and representative functions. However, the Convention jurisprudence does not appear to support that argument, or to be as clear cut as John McGovern suggests.

It is the case that compulsory membership of certain associations, such as trade unions under closed shop agreements, may be regarded as incompatible with article 11 (Sorenson and Rasmussen v Denmark [2006] ECtHR 52562/99). In that case, the court held that the requirement, which was permitted under Danish law, for the applicants to join a particular trade union as a condition of being employed, had nothing to do with their ability to perform the specific jobs and struck at the very substance of the freedom of association by article 11. Both applicants objected to the political views of the trade union in question.

However, the court has noted: “that the Convention institutions have consistently held that the regulatory bodies of the liberal professions are not associations within the meaning of article 11 of the Convention... As a rule, the object of these bodies, established by legislation, is to regulate and promote [emphasis added] the professions while exercising important public law functions for the protection of the public. They cannot, therefore, be likened to private law associations or trade unions, but remain integrated within the structures of the state” (National Notary Chamber v Albania (2008) 47 EHRR Part 3 134).

In that case, the court held that the National Notary Chamber was not an association within the meaning of article 11, but “rather a public law institution, compulsory membership of which does not constitute an interference with the applicants’ freedom of association”. It is noticeable that the statutory functions of the National Notary Chamber included a requirement “to represent and defend the interests of district notary chambers before state authorities and other institutions”.

The Law Society of Scotland would appear to be in a similar position because its objects include both the regulation and the promotion of the interests of the solicitor profession in Scotland. Accordingly, contrary to the view of John McGovern, the Convention jurisprudence indicates that the Society would not be regarded as an association and therefore compulsory membership of it would not be regarded as an interference with the freedom of solicitors to form associations.

Iain Jamieson, solicitor


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