Ken Swinton

Solicitors are subject to the inherent supervisory jurisdiction of the courts. That is an important aspect of the rule of law and can be seen in operation with the Lord President’s approval being required to rule changes made by the Law Society of Scotland.

Also, an entrant to the solicitor profession must petition the Court of Session for admission. This is no mere formality – it subjects the successful petitioner to that jurisdiction. We consider that the role of the Lord President under the present system is crucial and any steps proposed which weaken the role of the Lord President undermine the rule of law.  This supervisory jurisdiction allows the courts to enforce undertakings given by solicitors in the course of litigation or chamber work such as conveyancing.

That applies to solicitors and firms of solicitors comprised solely of solicitors and their employee solicitors acting within the usual scope of their authority. In relation to alternative business structures where there are non-solicitor controllers and shareholders matters break down. The inherent supervisory jurisdiction of the courts flows from the right of a solicitor to practice before the courts. ABSs by their nature cannot practice before the courts.

In the run up to the Act in 2010, the Scottish government made great play of “Scottish solutions to Scottish problems”. So regulatory model option 2 in the consultation paper, which mirrors the current English model, should not be adopted here. Nothing fundamental has changed.  Moreover, a large section of the generally larger legal firms is now owned and controlled outwith Scotland with other firms having ceased to operate on insolvency. These firms predominantly represent commercial entities and in response to client demands regularly employ English law/UK law in their dealings.

High street practitioners on the other hand mainly represent consumers and small to medium enterprises where Scots law/UK law is generally applicable. The number of lawyers working in-house has significantly increased over the period. The ‘Scottish solutions’ approach requires particular consideration of high street practitioners who are the frontline providers of consumer legal services if access to justice is really an important issue and in the application of Scots law. It is now much clearer than the demand for change was driven by the need to execute exit strategies for the proprietors of those larger firms rather than offering new or cheaper services to consumer clients.