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19 August 2014
Doing it justice

Doing it justice

“I’ve got a really good year as president,” jokes Alistair Morris. His predecessor, Bruce Beveridge, whom he replaced as president of the Law Society of Scotland in May, had to contend with, among other things, the abolition of the centuries-old requirement for corroboration in criminal trials.

Before him, Austin Lafferty battled with controversial changes to the way legal aid is collected. By contrast, Morris has an independence referendum as well as one of the largest global gatherings of solicitors, the Commonwealth Law Conference, in Glasgow next April. It’s an in-tray that the chief executive of Pagan Osborne, who has more than two decades’ experience as a member of Council, the Law Society’s ruling body, is clearly happy to have.

Between these two bookends of his time in office, though, Morris will not be sitting idly by.

Two separate reviews are being coordinated in the upcoming months in an effort to strengthen the Society’s public protection role. KPMG has been commissioned to conduct a review of the Guarantee Fund – a fund of last resort paid for by firms to protect clients who have suffered theft or fraud – that is to report before the year-end, while Ted Bowen, retired Sheriff Principal of Lothian and Borders as well as Glasgow and Strathkelvin, has been appointed to examine protections for the consumer in conveyancing transactions.

Looking further ahead, the Master Policy, a compulsory insurance scheme extending to all legal firms that covers clients against negligence, is also due to be retendered at the beginning of 2016.

Given the Society’s insurance and Guarantee Fund committees were the two Morris chaired the longest, he is not expecting any earth-shattering changes to emerge.

Still, he insists the process is a pivotal one to ensure existing arrangements are not trailing behind latest developments. “In simple terms, [these reviews will mean that] if the consumer turns to a Scottish solicitor then they’re fully protected against the solicitor making a mistake, against the practice folding, and even in cases where neither of these things have happened and the consumer has still suffered loss, in conveyancing, for example, we are still looking at what could be put in place to prevent this happening to somebody else,” says Morris.

“There are lots of other places where the consumer can get quasi-legal advice that doesn’t come with any of these guarantees or any of these levels of protection. From our point of view, we want there to be a distinct advantage to the consumer in instructing a solicitor because they get all of this for nothing, it’s all funded by the profession. It’s not like you have to pay for your car insurance; the solicitor or the garage owner pays your car insurance for you in this case. From our point of view, we want that to give us commercial advantage in the marketplace and we want that to give Scottish consumers an advantage in their lifestyles.”

Of course, controversies over legislative changes are unlikely to cease during Morris’ premiership. The past 12 months have been marked by an all-encompassing debate around corroboration, one that has been put on hold temporarily to allow the recommendations of Lord Bonomy’s reference group on safeguards to be aired. “If the safeguards had been thought [of] first then there would have been more acceptance of the corroboration rule being looked at for change,” says Morris. “But it was just the change of corroboration itself without any safeguards being put in place at the outset that really caused the problem.

“One of the good things that came out of it was that the Society used its position to try and bring together disparate groups around corroboration, so we had meetings involving people who were against any change and we had roundtable meetings involving people that were pro-change so that we could have an open exchange of views. We actually then used the information that we gathered from hosting these discussions to influence and colour our own submissions to the Government.

“I think that played a big part in persuading Kenny MacAskill to actually change his mind and I think that we helped him see a way through to where he got to with it and with the review because, in effect, the review will come up with the safeguards and hopefully with those safeguards that are acceptable, [that] will allow the whole thing to move forward.”

Morris is unable to say in the interim whether the Society will be inclined to drop their opposition to the requirement for corroboration being scrapped. However, he points to their representation on the Bonomy group and says he has no reason to think that the review will not return with a “rounded, well-considered proposal that would meet the requirements of the Society”.

Before then, another flagship piece of legislation will have to be negotiated. The Courts Reform (Scotland) Bill is preparing to complete its journey through the Scottish Parliament. Most significantly, the Bill will raise the threshold for cases to be heard in the Court of Session from a current figure of £5,000 being sued for. Ministers originally proposed £150,000 only to lower this at Stage 2 to £100,000; still someway short of the £50,000 the Law Society had pushed for.

“We have to be grateful and appreciative of any concession that we get and a concession from £150,000 to £100,000 is a major concession so I wouldn’t want to seem ungrateful about that; we willingly accept that,” says Morris. “But the original premise, the reason why we suggested £50,000 was the right figure, wasn’t just ‘let’s go for a figure that is a third of £150,000’. There was logic and reason behind that and that logic and reason continues, in our view.”

The Society will work with whatever parliament decides, says Morris, with the change – whichever level is settled on – likely to see an increase in workload for the solicitor branch of the legal profession. Of deeper concern, though, is the increase in workload facing a depleted number of sheriff courts after a programme of closures.

“Clearly, the sheriff court system will get more cases referred to it,” he adds. “Time will tell whether the resources that are available to the Scottish Court Service and the courts themselves can cope with that. But from our members’ point of view, we’ll get on with it, deal with it and do the best that we can to work with the system.”

It is a sentiment that is equally applicable as the conversation turns to the imminent independence referendum. The professional body for solicitors, which is to maintain a firmly non-partisan role, produced a second paper on the poll last month calling on both sides of the campaign to provide answers on a range of matters. “There is a duty on all of them to give those answers because this must be the biggest vote that any Scottish person can make in their life, no matter how old they are,” says Morris.

“Surely it is not asking too much for them to have as much and all of the facts that they need to make a reasoned, sensible decision. The political parties have got a month-and-a-half to do it in. With will and effort, then I think that they could answer many of these questions.

“From the Yes side of things, we are only suggesting [that they] give us some alternatives for the imponderables like the pound and euro membership; how will it work, what will it look like. For the Better Together campaign, if there was a willingness, then locking a few heads together in the same room for a couple of days would maybe get some more consensual policies, which would help. There is no reason why they couldn’t do these things if there was a will to actually make it happen.”

The decision, he says, is about more than just politics. Yet the debate has been riddled with a confusion that is not serving his members well. “The common theme, whether it is to do with a referendum, election, or whether it is to do with interest rates or anything else, if there is uncertainty in the marketplace, our clients react to that with caution,” explains Morris. “Inevitably, people are not making decisions when there is that level of uncertainty and the closer we get to the 18th of September, the higher the uncertainty levels rise.

“So people are saying, ‘why should I make the decision now, it is only two months away, I’ll wait and see what happens’ and then see whether that brings a different complexity to what they want to do, whether it’s buying a house, investing in a company or starting a new idea. At this stage, people are being influenced by the uncertainty, not by the outcome.”

Irrespective of the outcome on 18 September, solicitors from across the world will still arrive in Glasgow next April for the 19th Commonwealth Law Conference. It is a chance, says Morris, to “put a bit of feel-good factor back into the profession”. How, though, do relations fare between the Society and its members at present? “I think we have got as strong a relationship now with the members on the whole as I can remember in my 21 years on Council,” he says.

“My predecessor presidents and the Society have worked really hard at building that. There are still many, many members who tell me that we don’t lobby hard enough in parliament and that we give in too easily at parliament on court reform, court closures, and other things. I actually think that by and large, we get the balance right.

“We need to be able to influence, we need to be able to influence constructively, and that means being honest in our interpretation of things. And if it means saying to the membership, ‘no, we agree with this change, we need to do that’, or similarly if it means going to legislators and saying, ‘no, we don’t agree with that’ – court reform and the court limits are an example of that and corroboration too – then we need to go and make our case as to why we don’t agree with the proposals.

“That is always going to be a balancing act because even the worst proposals, they are not all black, there is always something that is white in them and we need to work with the good as well as the bad in that sense. I do think, though, that the majority of the profession understands the position that the Council is in and the Society is in and are appreciative of the more balanced view that we take.”

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