By Michael Sheridan
Last week, the CMA launched an astonishing attack upon the solicitors profession in Scotland (Competition and Markets Authority report on Scottish legal services, published on Tuesday, 24 March 2020). According to reports, I and my colleague solicitors may not be delivering good outcomes, need to do a better job, do not provide high quality, good value legal services, short-change clients, do not make price information available in an accessible manner and provide information which exacerbates the complexity of legal services. What a bunch.
These groundless allegations were published two weeks into the coronavirus emergency while most solicitors affected by these allegations were struggling to close down their offices while continuing to provide emergency services from home to the public and to meet the stringent requirements of professional practice including safeguarding clients’ funds, papers and information without the benefit of the staff, superior internet efficiency and office equipment normally available.
Moreover, the CMA is fully funded by taxpayers in publishing these allegations, while solicitors in Scotland have to rely upon private resources to examine and respond to these allegations at a time when the income from their practices is all but drying up. Is it possible these factors were not taken into account by the CMA when choosing the time to launch their broadside?
It is clear the CMA seeks to recast the Scottish legal system in the mould of the system in England and Wales without insight or regard to the different tradition, size and nature of the Scottish jurisdiction and, incidentally, without regard to the Treaty of Union of 1707 in which articles XVIII and XIX guarantee in all time coming the separate entity of the Scottish legal jurisdiction.
That Treaty may be very old but has been regularly visited and, for the most part, faithfully applied throughout the three centuries since its creation. The CMA seeks to replace the Law Society of Scotland with a new statutory regulator along the lines of the Solicitors Regulation Authority in England and Wales and to make the ownership of solicitors’ practices available to non-solicitors including commercial entities subject to shareholder ownership.
Perhaps the most extreme contravention of the Treaty of Union is the proposed replacement of Scotland’s most senior law officer, the Lord President of the Court of Session, with Parliament as the head of the regulation of the solicitors’ profession.
This last proposal contravenes also the doctrine of the separation of powers in arguably the most savage attack by the legislature upon the judiciary since the removal of the head of the judiciary (Charles I) by the (English) Parliament in 1649. Hence the need for the CMA to find fault with the current system in Scotland and, in particular, with the solicitors’ profession in Scotland.
These allegations are clearly subject to the motivation referred to above and are without foundation in themselves. Certainly, the legal process often fails to produce good outcomes, as might be claimed by certain of the witnesses in recent proceedings at the High Court in Edinburgh but at least one person is likely to have concluded the outcome was indeed a good one. Such cases, and many others, inevitably result in winners and losers and the latter are equally inevitably unlikely to be satisfied with the outcome. Certainly, again, we could all do a better job but to say solicitors need to do a better job is a clear implication of professional shortcoming.
Perhaps most unwelcome to Scottish solicitors is the fact that, while the Law Society of Scotland has responded to the iterations of CMA, it is reported to have offered no challenge to the inaccurate, damaging and, at places, irrational assertions made by the CMA against Scottish solicitors.
As these solicitors struggle and strive to keep going under the pressure of the coronavirus emergency, they might ask why they do not have any institutional means of standing up to assaults such as this by the CMA. I ask the same question and invite responses.
As published in the Scotstman on 6th April 2020