We are grateful to the Law Society Council for the comments which they have posted on their website in response to the SLAS reservations regarding the draft constitution.
1. "Disenfranchisement of members"
(The use of qualified majority voting at general meetings)
There appears to be complete agreement that this is a matter for the members and there can therefore be no objection on this being put to the AGM as an issue for decision. There is agreement also that the qualified majority voting is appropriate in a regulatory body. There appears also, at least on the record, to be no disagreement that it is inappropriate that the managers of a representative body should have the authority to overrule the wishes of a substantial majority of that body although that would be the effect of the presently proposed constitution.
2. Standing orders - giving powers to Council
Whereas the Society states that the new constitution uses the same terminology as section 25 of the current constitution, nevertheless section 25 provides quite properly that standing orders shall govern the keeping of minutes and the conduct of meetings whereas the new section 16 provides for the standing orders to set out a complete regulatory system which is, in the opinion of some members at least, an complete misunderstanding and misuse of standing orders.
3. "Regulatory error"
It is common ground that Council seeks to regulate the new licensed legal service providers without further reference to the members of the Society. However, it is our understanding that the Legal Services Act authorises that membership, in its character as the Law Society of Scotland, and not Council, to be the regulator of the new providers. More importantly, however, the membership itself has to have the final say, at least as far as the profession is concerned, as to the terms on which the profession will agree to (a) the terms on which the new providers will be entitled to join the profession in the provision of legal service to the public; and (b) will share the facilities of the Guarantee Fund and the Master Policy, both of which contain funds generated by the profession. This is because it is the profession who will take on the risk of the new providers in sharing the Guarantee Fund and Master Policy.
4. Guarantee Fund and Master Policy
It is common ground that the draft constitution does not mention the Guarantee Fund or Master Policy, which exposes the possibility that the regulation of the new providers in relation to the Guarantee Fund and Master Policy shall be dealt with in standing orders, which would be entirely inappropriate. Parliament may have compelled the profession to share the Guarantee Fund with the new providers but the owners of that fund are entitled to have a say as to the terms on which that sharing will take place. At present, for example, the membership oversees the accounts rules which control the conduct of all participants in the fund. Under the new constitution, the membership will no longer have oversight of the rules which govern the new members of the fund.
SLAS has indeed complained about the drafting of the constitution and has identified a number of particular issues on the front page of their website by virtue of having adopted the commentary made by the Royal Faculty of Procurators at Glasgow. For one of many examples, we quote the proposed article 12.10.2 which refers to “two thirds of those present and entitled to vote including valid proxies” and we suggest that this is ambiguous. For a full statement visit the SLAS website at
and, on the front page, click on Commentary by Royal Faculty of Procurators at Glasgow.