Saturday, January 10, 2009

Scottish Government Legal Profession Bill consultation seeks to delay reforms demanded by consumers

Kenny MacAskill’s recently announced consultation into legal services & regulation in Scotland, has been condemned by campaigners and consumers as little more than a delaying tactic to stall much needed reforms.

Remember .. the deadline for the consultation is 3 April 2009.

Peter Cherbi’s “A Diary of Injustice in Scotland” reports :

Lawyers monopoly on legal services set to last until 2011 as MacAskill's 'dithering consultation' delays wider access to justice for Scots

Kenny MacAskillScottish Justice Secretary Kenny MacAskill today announced the long awaited 'consultation paper' on the Legal Profession Bill, which the Scottish Government claims will open up the Scottish legal services market to competition, a position which came about only after the Office of Fair Trading in 2007 ordered the current lawyer controlled monopoly on legal services to be ended.

The year long wait by Kenny MacAskill to do anything other than announce a rather long winded consultation document, which has been authored mostly by a consultation group comprising members of the Law Society of Scotland (who wish to retain market monopoly on legal services) questions any sentiments the move on the Scottish Government's part to widen access to justice is a genuine one.

Mr MacAskill it seems, prefers instead to stumble along at the slowest pace possible, at the behest of the likes of the Law Society of Scotland & Faculty of Advocates, to maintain the closed shop of legal services for as long as possible, where even after today’s consultation will end in April of 2009, it will take until at least mid 2010 to get the legislation into Parliament, in turn probably seeing no implementation until 2011 !

You can read my report relating to the OFT's 2007 announcement here : OFT recommends lifting of lawyers monopoly on access to justice & legal services in Scotland with Kenny MacAskill's fairly weak response here : MacAskill seeks 'Scottish Solution' amid Law Society arm twisting on legal reforms

The Law Society's pitiful proposals on opening the legal services market, with the proviso they are solely allowed to regulate it, can be read here : Law Society's proposals on legal services market overhaul spin wide of the mark on public interest with a further report here : MacAskill struggles to hold back 'Tesco Law' as Law Society dithers on access to justice reforms

Staggeringly, while Mr MacAskill was making the grandiose announcement today on his legal services consultation, there were revelations the Justice Secretary had made earlier attempts last week at the Scottish Parliament to kill off Petition 1197, brought about by Bill Alexander, the Chairman of the Association of Commercial Attorneys, who via his petition, is seeking to open the legal services market up, and allow Parliament a much speedier look this year at the advantages of an open legal services market model (where a host of qualified professionals could offer cheaper, more competitive and speedier legal services), as opposed to the Law Society of Scotland's preferred 'closed shop monopoly' model, where simply you have to use a Law Society controlled solicitor if you want access to justice, and of course be at the mercy of the Law Society's infamous lack of standards, regulation and control over its widely poor quality solicitor membership.

In stark ccontrast to today’s consultation announcement, Kenny Macaskill commented to the Scottish Parliament last week :

'”The Scottish Government believes that this legislation [the existing Sections 25-29 of the Law Reform (Misc Provisions) (Scotland) Act 1990 ]is appropriate to Scotland. It allows members of bodies who are not solicitors to apply for extensive rights to conduct litigation and of audience. It ensures that appropriate standards of conduct and practice are maintained in the Scottish courts.

It also safeguards the consumer in that the Lord President, in consultation with Scottish Ministers, will decide what in courts and in what cases it is appropriate for members of the applicant body to exercise those rights. In so doing, the Lord President and Scottish Ministers are mindful of the training and experience required of its members by the applicant body. Consequently, there are no plans at present to amend the system of authorisation for rights of audience"

However, the Justice Secretary went on to reveal in his comments to the Scottish Parliament that while he believed the law shouldn't change on legal services, the only application granted so far under present legislation was approved with severe restrictions and conditions, making a complete mockery of the concept of an open legal services market :

"The Lord President and Scottish Ministers have approved the scheme submitted by the Association of Commercial Attorneys for rights to conduct litigation and rights of audience subject to conditions. The Association has accepted those conditions."

You can read more about the conditions imposed on the Commercial Attorneys in a previous report on the issue I wrote here : Non-lawyer rights of audience approved ‘with restrictions’ as Scottish Government continues to waver on access to justice reforms

You can read Mr MacAskill's attempt to kill off any Parliamentary consideration of opening Scotland's legal services market this year, here : Kenny MacAskill - compention in legal services is generally not a good idea unless lawyers say so (pdf)

Anything for a little delay then, to protect the Law Society’s control over Scotland’s legal services market and the Scots public’s access to justice for a few years, forcing the public into using Scotland’s notoriously high cost, poor quality, and poorly regulated Law Society solicitor membership, who invariably end up ripping off clients on an unimaginable scale.

I will write more about Petition 1197 in a later article, but for now, here is Mr MacAskill’s announcement of the legal services consultation, along with details on how to participate, which I hope as many of you who can, will do so !

You can download a copy of the consultation direct, in Adobe Acrobat PDF format here : Wider choice and better protection: A consultation paper on the regulation of legal services in Scotland

Closing date for sending in the completed consultation to the Scottish Government is Friday 3 April 2009.

Please return your completed consultation document online to :

You can also ask for a printed version of the consultation by contacting the Scottish Government direct at :

Legal System Division Constitution, Law and Courts Directorate Scottish Government Area 2W St Andrew's House Regent Road Edinburgh EH1 3DG

Proposals for alternative business structures (ABS) for the legal profession in Scotland

Proposals for alternative business structures (ABS) for the legal profession in Scotland were today published for consultation by Justice Secretary Kenny MacAskill.

Some of the main proposals for inclusion in the forthcoming Legal Profession Bill include:

* Reform of the regulatory framework for legal services, and removal of the restrictions on the types of business models under which a solicitor can offer such services, while allowing the traditional business model to remain an option for those who choose to carry on practising within that structure.

* Regulation of ABS to apply to any other form of business where a legal professional is involved in the provision of legal services to third parties.

* ABS to be regulated by an approved regulator, authorised to regulate that form of business by Scottish Ministers, with the agreement of the Lord President.

* Professionals within that ABS to continue to be regulated by their own professional bodies.

* ABS and professionals working in them to continue to be subject to any subject-specific regulation (such as financial services and immigration advice).

* Outside ownership to be permitted where those holding an interest in a legal practice pass a "fit to own" test and comply with an appropriate code of conduct and

* The Governance of the Law Society to be reviewed and the regulatory arrangements for the Faculty of Advocates to be made clear.

Kenny MacAskill said:

"This is a once-in-a-generation opportunity to create a more flexible and modern regulatory framework for Scotland's legal services. A flourishing legal profession is a crucial part of the supportive environment for our businesses.

"The proposals put forward by the Law Society and Faculty of Advocates earlier this year made clear that the regulatory framework must be proportionate to the size and scope of the legal services market in Scotland. We want to avoid having too many bodies and unnecessary tiers of regulation. Instead we should concentrate on developing a robust system of regulation to protect the profession's core values and enshrine the profession's commitments to service, probity and excellence.

"We also want to avoid any confusion or disadvantage to consumers where there are new structures which may bring together different professions.

"I believe the proposals published today for consultation will help the profession to remain successful and innovative in the face of increased competition and in the difficult economic climate that we are all currently going through.

"I would encourage anyone with an interest in this important issue to have their say on the future of Scotland's legal services."

Which? submitted a super-complaint to the Office of Fair Trading (OFT) asserting that the current regulation of Scottish legal forms restricts choice to consumers and prevents the formation of alternative business structures (ABS). In its response the OFT did not assume that the changes being proposed in England and Wales at that time, and subsequently enshrined in the Legal Services Act 2007, would be automatically suitable for the Scottish market but it recommended that by the end of 2007 the Government should publish a statement detailing its policy views in response.

On November 1, 2007, the Law Society of Scotland published a consultation paper entitled 'The Public Interest: Delivering Scottish Legal Services - A Consultation on Alternative Business Structures".

Later that month Justice Secretary Kenny MacAskill outlined the Government's approach to Parliament which was unanimously endorsed. He asked Scotland's legal profession to meet the challenge of change in the light of a changing marketplace, both nationally and globally, and invited them to come forward with a Scottish solution.

The Scottish Government published its response to the OFT in December 2007 which detailed its policy views on lifting restrictions on ABS, where considered appropriate, for the Scottish legal services market.

The Society published detailed proposals and the Faculty of Advocates published their response in spring 2008. Kenny MacAskill welcomed these responses in Parliament on June 11, 2008.

To help inform the Government's proposals Kenny MacAskill set up a consultative group to explore these issues. Some of the country's leading legal and consumer experts were represented on it.

The Scottish Government today brings forward proposals for the Legal Profession Bill which the First Minister announced as part of the legislative programme on September 3, 2008. The proposals in this paper for a robust regulatory regime will allow alternative business structures to operate in an open, transparent and accessible way in Scotland's legal services market.

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