Can the Law Society of Scotland continue to perform its traditional combined role of regulation and representation under the regime promised by the Legal Services (Scotland) Bill? The question has arisen, sharply and perhaps unexpectedly, in submissions to the Scottish Parliament on the bill.
There has always been an uneasy co-existence between the twin statutory functions imposed on the Society at the beginning of the Solicitors (Scotland) Act, to promote the interests of the solicitors profession in Scotland and the interests of the public in relation to that profession. The redefining of the regulatory landscape under the bill, and the possibility of non-lawyers coming under its regulatory remit, have led some to renew the argument that the Society should divide itself in line with these different objectives.
Nor is it just the consumer lobbyists who favour a split. The WS Society in its written evidence argues that it would be untenable, on grounds of professional independence, for the same body to be representative and regulatory of solicitors under the bill as currently drafted. And the new President of the Glasgow Bar Association has called for a referendum of solicitors on a similar question of representation.
It is a simple idea, but how would it work in practice? Can a clear line be drawn as respects, say, education and training functions, or indeed professional practice with its valued advice service? Or would we risk creating extra bureaucracy just so that the two separate bodies can liaise over who does what?
There does seem to be a sort of "best of both worlds" attitude among those within the profession who argue for a split. In other words, we can have a more campaigning Law Society (or equivalent), along with a regulator that we know and, if not love, at least live with in the same way we do at present.
I doubt it's quite as simple as that. The splitting of the Law Society in England & Wales is cited in support, but recent coverage in English journals suggests that the SRA (now the regulator) is not exactly making itself popular among the profession in its efforts to fulfil its mandate. And solicitors there now pay twice as much in annual fees as they do here.
Independence remains vital to the profession, and the Scottish Government should be bending over backwards to ensure that the bill is drafted so as to avoid any appearance of improper influence being brought to bear. The Society has identified weaknesses in this respect and these should be addressed in the parliamentary process.
There is also another aspect: the composition of the Society's Council. The consumer bodies are arguing for 50% non-solicitor, plus a non-solicitor chair. I fail to see how the profession could be said to be independent if effectively ruled from outside in this way, but the point does not seem to have been addressed in their submissions to the Parliament.
The present set-up (assuming the reforms the Society has in hand) is not the only possible one, but there needs to be much clearer thinking about what any alternatives would involve before we go down any of those routes.