Should the Law Society of Scotland as statutory regulator continue to be responsible for promotion of the interests of, and the representation of, solicitors in Scotland?

The following statement will be sent out by the Electoral Reform Society with the ballot.

On behalf of your Council, I ask you to vote YES.

At the heart of this issue is the question of what it is to be a profession. For all of our members, being a solicitor means much more than a simple description of how we make a living. There is a common commitment to the rule of law; to the importance of personal integrity; to the realisation that professional privilege brings with it an equal obligation to work for the public good; to the integrity of the badge.
It was that which led, long prior to the statutory creation of the Law Society of Scotland in 1949, to the realisation that the obligations of a professional body would be wider than throwing rogues out of the profession or forbidding potential rogues entry to it.

The legal profession in Scotland is a diverse group. I have been President of the Society at a particularly difficult time for the High Street solicitor, my own practice included. I already knew, and understood, the issues there. But I have also engaged with the partners in our largest commercial firms; with in-house lawyers in the public and private sectors; with lawyers of differing ages and personal backgrounds who provide legal advice to those of limited means for limited financial reward. I respect them all, not because our economic interests always coincide, but because they each, in their separate ways, still believe they belong to one profession – not as a result of being equally answerable to the Scottish Solicitors’ Discipline Tribunal or the Scottish Legal Complaints Commission but because they are solicitors, a title being best and most instantly defined as being a member of the Law Society of Scotland.

So, let’s look at the alternatives. There patently will require to be a continued regulatory body if the Society is broken up: even the requisitioners of the referendum concede that. But why should the profession continue to control that body if otherwise we are motivated only by our own self-interest? No realistic case could be made for that outcome.

We would be left then with a regulator independent of the profession itself. But what else would remain? Some, at least, of the requisitioners anticipate that we would abandon a single representative body. If, however, “each section” of the profession went its own way, where would this end? With separate representative bodies for big firms and small firms? For commercial firms operating as ABS and those in traditional structures? For civil legal aid lawyers and criminal legal aid lawyers? Indeed, for criminal legal aid lawyers in Glasgow and those in the rest of the country?

Where there is no obligation to belong to a single body, would these issues be solved by splintering each time a disagreement took place?

Is the eventual consequence of this not to hand the functions and services which are at the heart of our profession, such as education and training, the setting of standards, even practice rules, to the regulator – a body separated from the profession? And does it not open up the opportunity for Government, SLAB, the CML, the OFT or whoever, to choose the "voice of the profession" most amenable to them, or to decide that with such diverse voices, they had no alternative but to proceed as they saw fit?

Finally, there is the issue of cost. Our experience of financing of the limited role of the SLCC is only one example. There is also the current experience in England & Wales where, following the Government-imposed split between the (representative) Law Society and the (regulatory) Solicitors Regulatory Authority, costs of practice have soared. Does any of this fill you with confidence for the brave new world to be hurried in by a NO vote?

The number of question marks above simply highlights the questions which those who have called this referendum have not answered.

The Society’s Council, committees and staff work tremendously hard for the profession. Having regulation, support and representation under one roof enhances our ability to promote the interests of our members and ensures our voice is heard in Scotland and beyond. From time to time some members might disagree with some of Council’s policies, priorities and decisions. The way to change that is by engaging with your membership organisation, standing for election to Council, joining a committee and giving us your views. I end with a quote from Winston Churchill: "Democracy is the worst form of government, except all the other forms that have been tried from time to time". I urge you to vote yes.

Ian Smart, President, the Law Society of Scotland

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