Dear Jamie

Call for open and democratic governance

An independent and open legal profession is, I am sure you will agree, an essential element in a strong democracy where Government and public bodies need to be held to account and the rights of citizens upheld. A legal profession that seeks to gag its members, and place total power in the hands of persons unelected by its members – as you and the board have sought to do – is neither open, independent, nor democratic and thus fails in this most basic of functions. 

Such a unhealthy governance structure is one step away from transforming the Law Society of Scotland into a quango of the state, subverting its statutory duty independently to promote the interests of the Scottish public, and the solicitors who represent and speak up for them. In a jurisdiction where Acts of Parliament can be passed in an afternoon, we, as a profession, cannot afford to be governed (or give the impression that we are governed) by a small elite under the thumb (or at least the influence) of third-party vested interests. 

As you will recall, the whole question of legal profession independence was discussed actively in the context of the Legal Services (Scotland) Bill and as a result of active lobbying by members of the Society the Scottish Government abandoned its plans to control the Law Society.

Your proposed media protocol would mean that there existed the risk, or the perception, that no member of Council, committee convener, or committee member could ever speak publicly without staff, acting under the direction of you or the CEO, approving or amending what they wanted to say. Such a protocol is a disease to good governance and would act like a cancer to openness and transparency. It also fails to recognise and respect the fact the Law Society is a membership based organisation which elects solicitors to speak on their behalf, not your or unelected appointees' behalf. 

I would urge you to withdraw your proposed media protocol and enter into a constructive dialogue to develop a genuine open and democratic system of governance for our professional body. It may be that some media protocol is appropriate but, with the experience of the last couple of years, any perception that something is being done by stealth must inevitably give rise to suspicion and misunderstanding which is in nobody’s interest.

If you are unwilling to do so, we should have a proper debate with reference to the recent example where it has been suggested that you and Oliver Adair tried to silence a committee of the Law Society from opening a public debate about an Executive Non-Departmental Public Body, which subject was within the remit of that committee. 

For the avoidance of doubt, it is clear that it is for Council to decide whether a policy document is confidential or not. The Society's constitution and standing orders are silent on this issue, but I would refer you to the relevant minute of Council in 2006 which agreed that: 

"All minutes, matters and papers will be deemed to be non-confidential unless there is a statement to the contrary, or the matter, minutes or papers deal with an individual case where a solicitor, his firm or a member of the public is named in which case the matter will be deemed to be confidential unless the contrary is stated." 

It is clear from this minute that the purpose of confidentiality is to protect the legitimate interests of members, member firms and the public; it was not intended to be used to stifle open and public dialogue and was certainly not intended to provide the Executive with the ability to prevent members of Council from discussing matters which the Society was to consider with their constituents.

Accordingly, perhaps you would consider apologising for your intemperate statement, issued on behalf of the Society, on the release of your proposed media protocol, as Council has never agreed to your document being confidential?

Yours sincerely

Mike Dailly
Member of Council for Glasgow & Strathkelvin