link to the Royal Faculty of Procurators in Glasgow


The Royal Faculty of Procurators in Glasgow

Future of the legal profession and access to justice in Scotland

21 January 2008, Glasgow

















We live in an age of false prophets.  Prophets which go by the name of "consumerism".   

Consumerism preaches equality of choice and opportunity but never delivers the goods.   

What consumer choice do you have when you live on £59 weekly income support?  Likewise, what choice does a person up to their ears in serious debt have when they're being taken to court by umpteen creditors?

The consumer lobby tells us there can be no good, high quality service without unfettered choice. 

With that in mind the so called consumer champion Which? lodged its "super complaint" in May last year alleging that "legal restrictions" in Scotland "work against consumers as they prevent lawyers from innovating to meet the needs of their customers".  The OFT agreed.

But let's break that allegation down.

First, "legal restrictions" - what does that mean?  Primarily, I suppose it means the rules which prevent non-lawyers owning solicitors' firms and the practice of advocates.  

The OFT response to the super complaint made the following assertion:

"Lifting the restrictions on outside ownership could also mean that law firms would become more responsive to clients and that the quality of legal services would improve".  (para 5.8)

The operative words here are "could also" - that really does sum up the entire super complaint: maybe, could, perhaps etc., 

There's been no real empirical evidence provided to support allegations of a lack of competition or a lack of consumer choice - in reality it's sheer guestimate.   

So hundreds of years of an independent Scottish legal profession with a world class reputation could effectively be placed on a roulette wheel?   With the OFT and Which? asking Cabinet Secretary MacAskill to spin that wheel and see what could happen. 

But we already know what will happen by looking at the overwhelming evidence.

We're told that ABS (alternative business structures) will allow big companies - such as banks and supermarkets - to deliver innovative legal services.   I pause to observe this is being suggested at a time where the UK taxpayer has bailed out Northern Rock plc to the tune of £25 billion pounds.  

Can you imagine if all that stood between you and mortgage repossession, bankruptcy, the jail or never having contact with your kids again was some bloke from the Northern Rock?

Yet correspondents in newspapers have been excited with the prospect of Halifax Legal Solutions delivering 'discounted conveyancing', will preparation and a fee-charging website where you can prepare tenancy agreements and letters about faulty goods.

The fact that non-solicitors have been able to do conveyancing for years is neither here nor there.  

Or I suppose that non-lawyers already help landlords prepare tenancy agreements.  Services such as 'Lawpack' (for use in England and Scotland) have a residential lettings kit for £14.99 - which is a lot cheaper than Halifax Legal Solutions.

As for letters for faulty goods why should you pay anything when you can go into your local CAB or trading standards department and get help for free?

Regrettably, these facts do not prevent Which? or the OFT from riding roughshod over Scotland's legal profession.  So-called legal restrictions are in fact the jewel in our profession's crown.

In reality the ABS agenda has been driven on two fronts:  

(Firstly) by a handful of people in very large Scottish firms that want to be able to sell shares in their companies to a much wider market and retire as multi-millionaires.

(Secondly) by a misguided so called 'consumer lobby' which in reality does not represent that many people at all, and would rather entrust legal services to the UK's banks and supermarkets.

And this at a time where banks may face a £1bn bill to compensate customers scammed by mortgage exit fees; a time where banks have been fined millions of pounds for mis-selling Payment Protection Insurance (PPI), and where the Financial Services Authority has slammed banks for subjecting customers to lies, scams and threats when they have sought a refund of bank charges.

My concern is how will allowing a few big Scottish firms to be bought up by Burger King help the ordinary citizen looking to access civil justice?

In the last few weeks access to civil justice has been reduced - if you live in a damp house with disrepair you can no longer get legal aid unless your case is worth over £3,000; and as BBC Reporting Scotland highlights tonight civil legal has become meaningless for those facing mortgage repossession.   That is because the Legal Aid Board will expect you to pay your own legal fees and outlays - even if all you have is £59 income per week, because the Board say your house has grown in value!  

ABS will do nothing to help the most needy in our society; all it promises to do is undermine the robustness of an independent legal profession and enable multinational companies to control access to justice - in the same way they control the price of bank charges, the price farmers get for produce sold in supermarkets and so on and so forth.

Mike Dailly
Principal Solicitor
Govan Law Centre