Law Society is not above the Law

The Annual General Meeting (AGM) of the Law Society of Scotland (The Society) recently took place in Edinburgh.  

At the AGM, a report was submitted for approval.  The report argued for separate representation of the Borrower and the Lender in a residential conveyancing transaction.  

This would mean that each party would have to have their own Solicitor.  

Currently, one Solicitor can represent both parties.

The Council of Mortgage Lenders (CML) also opposes the move to separate representation.

In my view, not enough consideration had been given to either the Equality or Human Rights implications of such as move.

Previous experience

I had attended the previous AGM, where I spoke from the floor of the importance of fulfilling legal obligations under Equality Law and also Human Rights Law.

I was given an assurance, following the issues raised, that the Society would, in future, publish both Equality and Human Rights impact assessments concerning any proposals being brought forward.

Indeed, earlier in the week, I had discussed this very point with the Society's Director of Representation and Support.

I am disappointed, that to date, the approach taken by the Society has been lacklustre.

I acknowledge that attempts are under way to make improvements, but I would have expected that such an important report, would have mentioned both human rights and equality elements.

Legal obligations

Unlike its counterpart in England and Wales, in Scotland, the Society operates as a Public Authority in terms of the Human Rights Act 1998. The Society is a Public Authority in respect of its regulatory and supervisory function of the Solicitor profession in Scotland.

The Society must have regard to the Convention Rights, namely those set out in the European Convention on Human Rights and Fundamental Freedoms.

By extension, the Law Society is also a Public Authority under the terms of the Equality Act 2010.

A Public Authority here, must have "due regard" to (1) the promotion of equality of opportunity, (2) the elimination of unlawful discrimination and (3) to foster good relations between groups who share protected characteristics (The General Duty).

There are also a series of "specific duties" which give teeth to the General Duty.

The Society acknowledges that it has to comply with the General Duty.

The Society also acknowledges that it has to comply with Convention Rights.

However, at today's AGM, as in the past, no evidence was presented that either obligation had been complied with.

Why are these obligations important?

In the present case, a proposal to approve the report of the working party on separate representation was presented to the meeting for endorsement.

The report, recommended making changes to the Professional Practice Rules to ensure that Solicitor's avoid conflict of interest by not acting for both a mortgage lender and a house purchaser.

It seems obvious, that in order to avoid an apparent conflict of interest, that a Solicitor either represents the borrower of the money - the house purchaser - or the lender of that money.

The Solicitor should not do both.

However, the case is actually more complex that the simple aim of avoiding a potential conflict of interest.

Human rights element: proportionality

As a Regulator, acting in the public interest, the Society needs to adopt a proportionate response to achieving a legitimate public policy aim.

It is not enough to simply say that avoiding a potential conflict of interest is a legitimate aim.

No one would disagree that there have to be rules concerning avoiding conflict of interest; what is important, is the way in which that aim is achieved - the response to achieving the aim must be proportionate.  

This is important, from a hypothetical house purchaser's point of view - keeping costs low and also needing to access a local Solicitor who would be willing to represent them.

It is also important from the point of view of any hypothetical Solicitor, who is potentially already being squeezed financially as a result of the current economic climate and may not be so keen on taking on low value work such as a first time purchase, the purchase of sheltered accommodation or negotiating the sale of a former matrimonial home.

Equalities element: avoiding indirect discrimination

It may be more expensive to buy a house if a client is forced to travel to appoint a Solicitor or if they are forced to pay more than one Solicitor for carrying similar legal work.

Whilst any requirement for separate representation would be applied equally to everyone seeking to buy a house, it could potentially have a disproportionate effect on younger people seeking to enter the housing market, disabled people seeking to buy supported accommodation or people getting separated or divorced.

Rural and high street practice: negative impact on wider legal representation 

Also consider the case of a hypothetical Solicitor engaged in rural or high street practice.

That Solicitor may rely upon the "bread and butter" income from conveyancing. That income too, may also be used, albeit indirectly, to subsidise other areas of practice, such as legal aid work or family law.  It could also mean the difference between keeping an office open in one location or closing down and centralising services elsewhere.

By restricting the type of domestic conveyancing work, the hypothetical Solicitor is now faced with a potential loss of income and has to decide whether or not to remain in practice or to close down the areas of work that were previously indirectly subsidised.

This would present a greater challenge for access to justice.

There is no merit in arguing the pros and cons of separate representation if there will be no one around to provide that representation in the first place.

No mention of human rights or equality


If a proper assessment of either Human Rights or Equality had formed part of the working group's report, it should have been in the report. There was no mention of it.

A proper assessment would have looked at the fine balancing act between being a Regulator and also the responsibilities of the Regulator to both act proportionately and also not to discriminate, albeit indirectly and to promote equality amongst other things.

I have shown the potential for both a human rights and equality impact stemming from the published report.

I was disappointed that I again had to ask why the Society had no considered both important legal obligations.

Future proposals

The Society's working group will now take forward the question of separate representation.

It is likely, whether in the near or distant future, that a concrete proposed rule change will be tabled for approval.

I do not want to have to stand up again, at this time in 2014, and ask where is the relevant human rights or equality impact assessments.

The Law Society is not above the law.

The Society must show evidence to demonstrate that it has had "due regard" to the obligations described above.  The recommended way of doing this is to publish equality and human rights impact assessments.

It is now time to change decades of inherent bad practice in the Society.

If the Society acts in the public interest then the Society must respect both Human Rights and Equality.

Parliament and the public expect this too.