Consultation’s ‘let’s blame the lawyers’ approach is so convenient for politicians

Andrew Stevenson is Secretary of the Scottish Law Agents Society

Members of the Scottish Law Agents’ Society deal with a huge range of what are sometimes described as “consumers”, an impersonal term that fails to differentiate between, for example, a large retail company leasing commercial property and a homeless man charged with shoplifting from one of that company’s stores. Such clients have little or nothing in common. Lumping them all together is unhelpful.

We know from experience why clients can become unhappy; It will tend to be about a small number of general dislikes, about delay, spending money, feelings of powerlessness and unfavourable outcomes.

The easy reaction is, to misquote Shakespeare: “Let’s blame all the lawyers”.

One can see how this can happen. Lawyers are often seen as the accessible face of the law and guilty of its shortcomings by association with it. The landlord who is owed thousands in rent arrears, who finds it impossible to evict an antisocial tenant who then racks up a fortune in debt and carries out a moonlight flit will aim his wrath at his own solicitor across the desk in his office - and not the MSP, insulated miles away, who voted to make the laws that created the mess in which he finds himself.

This consultation has more of a hint of politicians wishing to avert problems of their own making by adopting the Bard’s advice, or at least its spirit. It is convenient to assume that these causes of unhappiness are not being sufficiently addressed by the client’s lawyer, to conclude that lawyers must do more and to compel them to do so by making it easier for the clients to complain about them.

In truth, there is no sound evidence to suggest that the public is being failed by the current regime that regulates lawyers. The Roberton report, which forms the basis of this Consultation and which recommended change is yet another example of the government seeming to equate the words “independent” and “infallible” in the context of reviews and reports.

A more intelligent and imaginative exploration of this area yields other reasons why there might be delay, cost and powerlessness.

Delay is encountered in the court system, in our registration of deeds and in dealings with agencies such as the Office of the Public Guardian or HMRC. This was so even before Covid induced disruption and staff shortages. One way in which this delay could be reduced is by increasing the funding for more staff and resources. That way, clients would not have to wait six months for a proof, seven months to get a power of attorney registered or a year to get a response from Registers of Scotland.

Costs occur in a number of ways. Fees are increasingly imposed on anyone who finds himself in court, or who wants to buy a house or whose relative dies. These are, in effect, taxes, and the Government controls them. It can therefore reduce them, if it wants to. Clearly, it does not; another Consultation concerns a proposal to increase court fees in each of the next three years.

Fees paid to lawyers breed resentment. For those with meagre means this source of unhappiness could be reduced if the Government provided adequate funding for legal aid and for Law Centres and Advice agencies such as CABx. Indeed, by increasing access to justice the feelings of powerlessness would be reduced too.

Empowering people does not mean making it easier to complain about their lawyers. Real empowerment is achieved when citizens have the ability to access good legal advice and, where necessary, to have access to the courts efficiently and at reasonable cost in order to vindicate their rights and achieve remedies. This means spending money where it matters, on legal aid and on the justice system. Regulation of lawyers is a complete distraction.

Andrew Stevenson is Secretary of The Scottish Law Agents’ Society

Consultation’s ‘let’s blame the lawyers’ approach is so convenient for politicians - Andrew Stevenson