SIR DAVID CLEMENTI’S review of legal services are already being felt in England and Wales. But in Scotland, similar reforms are 15 years behind — paving the way for conflicting regulatory frameworks on either side of the border and a huge disparity in consumer choice.

The Scots have had their own Court and Legal Services Act 1990 with its shake-up of lawyers’ restrictive practices in the Law Reform (Miscellaneous Provisions) (Scotland) 1990. That Act has been entirely implemented, save for sections 25 to 29, which enable various bodies to apply for the right to conduct litigation and for rights of audience in particular courts.

A commencement date was set for June 1996 but was then abandoned. Lord Forsyth of Drumlean, the former Secretary of State for Scotland, has expressed surprise at this because he had agreed a timescale with Lord Hope of Craighead, then Lord President and now a law lord. He intends to raise the matter when Parliament returns.

This, though, is not an isolated omission. The history of legal services reform in Scotland is one of inaction. New Labour indicated in 1997 that the matter was under consideration, but no date was set. Then came devolution and a constitutional development whereby the Scotland Act has purported to exclude the duty on the Scottish Executive to comply with an Act of the Westminster Parliament, or European Directive, when it comes to regulating competition in the legal professions.

If correct, competition matters remain with the Scottish Executive. But I believe that view is open to challenge and that competition matters are reserved to Westminster, including legal services. It is a theory the Department for Trade and Industry seems to share; but the Office of Fair Trading appears undecided.

In essence, the view of the Executive since 2002 — if not before — is that to implement reforms on rights of audience would burden the courts. But on what evidence? The courts down south seemed to cope well enough with opening up advocacy rights.

When in 2001 the OFT produced its report that eventually triggered Clementi, it said that Scotland should be excluded. The OFT claims that this was to comply with the requirements of timescale. But with 700 staff in England and none in Scotland, were there sufficient resources or interest to maintain a level market in the UK? The OFT said that it had drawn its report to the attention of the Scottish Executive Justice Department in 2002. So far there has been no evidence of this.

In February 2003 I raised a petition at the Scottish Parliament, backed by the Public Petitions Committee, asking for commencement of sections 25 to 29. At the end of 2003, after considerable prompting, the Scottish Executive set up a working group to consider my petition and a small matter called Clementi (although the working group has now decided that it was not considering Clementi in any detail).

That group included civil servants, four academic researchers, including two solicitors, the Legal Aid Board, the Scottish Consumer Council, the OFT and representation from the Law Society and Faculty of Advocates. No one with a legal background who was not a solicitor or an advocate was represented; not even the Patent Agents, who were granted rights of audience in England under the Courts and Legal Services Act 1990. The group was to have reported by May; that slipped to June and then August. At present no publication date has been set and realistically none is likely until next year — so 15 years of delay is about to become 16 years.

Even if, therefore, the Executive has a complete change of policy, it is impossible for the legal services market in Scotland to catch up with England and Wales. And what of Scottish MPs at Westminster? With one exception, the Liberal Democrat MP Jo Swinson, no one seems interested. Scottish MPs therefore will be voting on the Lord Chancellor’s measures while the Scots are denied similar advantages.

The Government in London seeks to encourage consumer choice, while the Scottish Executive appears determined to restrict it. Meanwhile, the European Commission has called for the legal services markets to be liberalised. In June I raised a petition at Westminster calling for the commencement of sections 25 to 29. It will be interesting to see if anyone there, including Scottish MPs, actually cares enough to see it happen.

The author is a consultant

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