Scottish Legal Services Market

Speech delivered on Thu 15th Nov 2007

Mike Pringle (Edinburgh South) (LD): That is probably a first

Although this subject is important, the English 2007 act that covers these issues does not become effective until 2011, so we are discussing a long-term process. Earlier, Mr MacAskill mentioned the budget. The time set aside for this debate-important though the subject is-should have been used to debate the budget and the time that we had for yesterday's budget debate should have been used for this one.

This is the second debate in only three weeks on an issue that, for practical reasons, I will sum up-using the Government's own words-as "access to justice". Although a short phrase, it holds more meaning than one might discern at first glance. Justice has historically been and must remain a core principle on which society is constructed and by which it is governed. The previous debate was on alternative dispute resolution, which is essentially a commonsense approach to reducing pressures on our legal system. The mechanism is simple for the consumer and requires little regulation; it represents a win-win situation for Scotland's citizens and legal services.

Former Associate Justice of the United States Supreme Court, William O. Douglas, once said that "Common sense makes good law". That is not always true. Would that common sense always prevailed-indeed, would that it were always capable of prevailing-but, as we all know from experience, that is simply not the case. Instead, we have a highly specialised and developed legal services industry to deal with disputes. It is necessarily heavily regulated, although we cannot hide from the information that the Which? super-complaint has uncovered. Indeed, it is unquestionable that, as far as accessibility is concerned, Scotland's legal system is failing consumers. However, we must not allow the pressing need for accessibility and the almost inarguable need for reform to taint the integrity or dilute the quality of the legal profession.

There are three questions at the crux of this complex issue. First, how can we provide a widely accessible legal service to the people of Scotland? Secondly, how can we ensure that the standard of the service remains consistent and well regulated? Thirdly, what structure is best suited to fulfilling those conditions? My question to the Parliament is whether we have three answers to those questions and, indeed, whether we can we move forward without them. Because those questions remain unanswered, I welcome today's debate.

As the three questions are intrinsically linked, I will look at the first: how we can provide a widely accessible legal service to the people of Scotland. Initially, the answer might appear to lie in the opening up of legal services, as advocated by Which?, to pave the way for a multitude of alternative business structures such as legal disciplinary partnerships, as favoured in Sir David Clementi's report on the regulatory framework for legal services in England and Wales; multidisciplinary partnerships, which would allow a wider range of services; a shareholder option; or the complete opening-up of our legal services to the private sector in what has notionally been termed Tesco law.

All those proposals come with advantages and pitfalls. Of course, any structure that is open to competition raises several pertinent questions about consumer protection. For example, what would become of the guarantee fund that at the moment not only finances part of the legal system's stringent internal regulation programme but protects consumers against legal fraud? All lawyers pay into the fund; indeed, my family lawyer told me that each of the partners in his legal firm pay £600 per annum to cover the very rigorous inspections that the Law Society of Scotland carries out on every legal firm every two years.

Lawyers also face the costs of any claim on top of that payment. I believe that there is a small fund for such eventualities, but it will not cover claims made against a particular lawyer. What would happen to the insurance that is currently provided by the master policy, which is the compulsory professional indemnity insurance arrangement that covers all Scottish solicitors working in private practice? The Law Society arranges the master policy for professional indemnity insurance; claims are handled by the master policy insurers; and the insurance itself provides cover of up to £1.5 million for any one claim.

How would an MDP be regulated? Under a deregulated system that included MDPs, what would happen to the guarantee fund that at the moment helps clients who claim against solicitors? Would the fund still exist? Would non-solicitors be forced to pay into it? Can several different professionals be regulated by their individual bodies and would they be subservient to the legal regulations that govern the principal function of the practice?

As for Tesco law, in Wednesday's Scotsman Mr MacAskill said that alcohol should not be available for purchase in shops like a "pint of milk or packet of tattie scones".

Setting aside the rights and wrongs of alcohol licensing, I wonder whether we want our legal services to be sold in the same way. I suppose that the answer, to a certain extent, is yes; the Liberal Democrats are committed to and will continue to work towards a freely accessible legal structure. However, I question whether any regulatory structure exists at the moment to

ensure that anything provided under Tesco law can maintain the high standards that are currently enforced by the legal services' internal practices. The idea of a super-regulatory commission might appear sensible but it is untested and has not been thoroughly examined.

This remains very much a question of consumer rights; we must seek to provide not just access to the legal system, but access to justice. To continue the supermarket analogy, we must avoid having a watered-down legal system-or what might be described as a "Sainsbury's basics" legal structure-that is torn between the citizen who pays for it and the shareholders who seek to make a profit from it.

At the Law Society conference, Kenny MacAskill gave an assurance that the SNP would not preside over a diminution in the quality and integrity of the legal profession. I am sure that he will hold to that promise. However, I was more worried by his comment that, if we could complete our reforms by 2011, we would beat England to it. I know that we all enjoy a victory over England-I will for the moment put to one side the upcoming match with Italy-but I do not believe that this matter can or should be rushed.

Kenny MacAskill also said at the Law Society conference that if the legal profession came up with the right solution the Government would back it. I say to him that if the Government comes up with the correct bill to deal with this issue, my party will back it. However, in order to provide access to justice, any such legislation must carefully examine all the options and maintain the Scottish legal system's integrity and high standards.

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