This has been some week for the solicitors’ profession in Scotland. This time last week attention was focused on the special general meeting; now we are facing not one but two referenda. And the public must think we are close to civil war.
However the independence issue, which has taken up much discussion especially in relation to section 92 of the Legal Services Bill, is fundamental, and I hold to my position that the arguments are not all one way. Mike Dailly, with whom I have engaged in exchanges, says you can’t be 99% independent. I wonder in turn what constitutes the 100%. Perhaps looking at various permutations in stages will illustrate the point. (There may be others; if anyone has suggestions as a way of moving forward, that can only help the debate.)
Does it weaken professional independence, for example, that the Society is required both to promote the interests of the solicitors’ profession and the interests of the public in relation to the profession? (The dual role has been contentious for a long time, but the argument has focused on perceived conflict of interest and the current debate is obviously taking place on the assumption that professional independence is at present intact. So I assume the answer is no.)
If not, would it weaken professional independence for the Society to appoint on its own initiative a minority of lay members to Council, if it had the power? (It has not to date had the power, though it has appointed four non-voting observers from outside the profession.) I suggest not.
But if yes, has the Society already weakened professional independence by appointing non-solicitors to its regulatory committees (now 50% representation, it is said)? And if so, what should be done about it?
If not, would it weaken professional independence for the Society to come under a statutory duty to appoint a minority of lay members to Council, chosen by the Society, to represent the public interest to which the Society is to have regard? (I suspect there are those who would argue yes, but it is not self evident that it would.)
If not, does it make a difference if the Government is entitled to prescribe that all or some of these Society appointees meet certain additional criteria? (Without more, I would say yes, at that point there is an encroachment. Even if it is a minority, and even if there is a duty to consult all those with a proper interest.)
But if yes to the last question, does it restore the position if, in the same legislation as confers the power to prescribe, the Government itself is taken bound to respect the principle of professional independence, and to seek parliamentary approval, within a legal framework which permits judicial challenge to ultra vires acts? (That, I suggest, is the real question we have to address in relation to section 92.)
And what if, instead of a minority, the Society became obliged to appoint a majority of non-solicitors to Council? Yes, that is possible as section 92 stands. But the Society itself recognises that it could not continue in its present form if that were to come about, nor, I am sure, would the members allow it to do so. So the probable split of representation and regulation in that event has also to be factored in when taking a view on how we go forward.
It is all very well to argue that independence has to be all or nothing. But the profession has to exist in a political, social and economic context. Did it lose its independence when it was obliged to allow advertising, or abandon the table of fees, or hand over service complaints to the Scottish Legal Complaints Commission? If not, solicitors have to ask themselves whether the core values of the profession as they know it will still be recognisable after the Legal Services Bill. And that includes looking at the legal framework under the bill in its entirety, and asking in what way will they be less independent than they are now.