The outcome of the special general meeting vote on separate representation, in which the motion to agree the draft practice rule and put it to the Society’s Regulatory Committee was lost, will have come as a surprise to many solicitors. I hear of some in recent months who have regarded the passing of the rule as already a “done deal”; I hope they took the trouble to ensure their vote was counted on this occasion.
Indeed I had expected myself that the Scottish Law Agents Society’s ability to energise its members into supporting it through proxy votes would have carried the day. However, as the SGM debate itself revealed, solicitors from similar walks of life can have directly opposing views on the issue, and the arguments concerning the possible cost to the public, and more particularly the risk of disruption to transactions, even as they are due to settle, are not to be lightly discounted.
There is however a more general view, repeated in recent contributions to the debate from both sides, that “the system is broken” in relation to house transactions, and moving forward there now has to be a collective focus on where it is breaking down and what needs to be done to fix it. The Society has already set up a working party with this remit, and we can expect to hear much more of its work in the coming months. It remains an opportunity to begin pulling together once again for the benefit of the public, and (it ought to follow) solicitors’ livelihoods.
Something else to watch closely will be the willingness of the Council of Mortgage Lenders to demonstrate its good faith over its offer, repeated at yesterday’s meeting, to enter into constructive discussions over those parts of its handbook that cause most anxiety to solicitors over conflict of interest between lender and borrower. Many believe that it is only the prospect of separate representation that has produced this offer, and any stalling by the CML could mean that the issue comes back on the agenda sooner than it expects.
And what of the proposed alternatives, the standards-based approach promoted by McVey & Murricane along with their so-called “mild accreditation”? I have some difficulty with the latter concept; I would have thought that to carry credibility, any accreditation system would need to be fairly rigorous in its approach – though I grant that in the world of legal aid, a peer review system now operates that meets the requirements of the Scottish Legal Aid Board while setting the bar at a level that most firms seem able to clear fairly comfortably. Something on these lines should now come onto the agenda for scrutiny by the working party, and others attempting to take matters forward.
At all events the profession must continue to be seen to be taking the initiative in pushing for change. Much is waiting in the wings, with the new digital possibilities under the 2012 Land Registration Act, and we have a real opportunity to build an efficient system round these possibilities, rather than attempting to adopt them as an adjunct to a traditional system.
The battle for change has not been lost, but it is time to refocus.