Promoting law reform

The Law Society of Scotland does much more than the referendum question posits. As well as regulating the profession and representing the interests of solicitors; it also has a third role, promoting law reform.

The Society’s Law Reform Committee aims to "improve the law of Scotland for the benefit of the public and the profession through lobbying for change and responding effectively to proposals". In 2009 its 20 committees and subcommittees responded to consultations on matters as diverse as the reform of copyright law, proposed changes to the double jeopardy rules, and forced marriages, as well as raising constitutional concerns about hybrid bills and reform of public services in Scotland. This was in addition to its ongoing work in monitoring legal aid and responding to discussions on alternative business structures.

While Law Reform committees are served by paid officials of the Society, they are otherwise comprised of individual solicitors (and others with appropriate expertise) who work on an entirely voluntary basis, concerned to ensure that the Scottish legal system serves not just the legal profession but also the wider public interest.

The Mental Health and Disability Committee is just one of these committees. We took a leading role in campaigning for reform of both incapacity and mental health legislation in Scotland, organising conferences, meeting with officials and being heavily involved in the new legislation as it went through the Scottish Parliament.

Scottish mental health and incapacity law is now internationally regarded as a model of good practice, and members of the committee have provided expert advice and expertise to Council of Europe and World Health Organisations, to the Law Commission of South Africa, across Europe, including eastern Europe, and, closer to home, in all other jurisdictions of the UK.

The focus of our committee has not been to promote ourselves or our own interests, but rather to work to ensure that Scottish law protects those who may be vulnerable and who need the support of a humane and principled legal system.

A glance at the work of some of the other committees shows a similar commitment. Thus the Family Law Committee responded to concerns about children in detention, decriminalisation of children, and children's right to express their views about their education. The Employment Law Committee welcomed proposals to protect workers wishing to be members of trade unions, and the Rural Affairs Committee looked at proposals for crofting reform.

The Society is widely consulted by Government and others and is able to make a valuable contribution to legal reform in Scotland. Many of those who voluntarily offer their services to the law reform committees no doubt see this as part of their professional duty.

Such a duty was for many years recognised by the Law Society’s Code of Conduct (2002). Paragraph 10 of the Code said that: "Solicitors have a duty not only to act as guardians of national liberties, but also to seek improvements in the law and the legal system. It is the striving by solicitors for improvement both in general terms and in relation to the individual needs of a particular client that prevents the law and legal services 'from degenerating into a trade or mere mechanical act'" (Lord Cooper, Selected Papers, Edinburgh, 1957, p. 77).

It is perhaps significant that this duty is not replicated in the more functional Standards of Service (2008) which replace the Code of Conduct, but many solicitors would still regard playing this wider public role as a key part of being a professional. The help of the Society in fulfilling this duty is, demonstrably, of immense value and any proposals which would dilute or remove this emphasis should be strenuously resisted.