Ed Reyes's news blogs

On 18 September 2014 two sets of nationalists – Scots and UK respectively – will be hoping their supporters vote in large numbers.

Personally I think they’ll both struggle with turnout – given what’s at stake, these campaigns are oddly technocratic. The ‘yes’ campaign, perhaps intending not to scare off undecided voters by playing a fervent nationalist stereotype, stresses how little would change in an independent Scotland.

The ‘no’ campaign, seemingly wary that in a straight fight it might struggle to match the misty eyed-or-mountain romantic appeal of the ‘to be a nation again’ vibe, isn’t really invoking the idea of a country either. Instead, the campaign prefers to rely on negative scare stories – focusing in particular on ‘national security’-type issues.

As nation-based bust-ups go, this is hardly 1776.

Both sides might get closer to a campaign to be proud of with a focus on legal issues.

Thinking back, devolution was still pretty young at the time of the Lockerbie trial – at the time the legal community in Scotland successfully projected their huge pride that the trial had been held abroad under Scottish law and had stood up well to the international scrutiny that entailed.

The ability to project national prestige is surely a defining feature of a nation.

And I notice first minister Alex Salmond spent some time last year promoting Scotland as an arbitration and dispute resolution centre, though it doesn’t seem to feature in his yes campaign. That’s a shame – Scottish banking has a mixed rep now, but not so its advocates and courts.

For either campaign, surely this far into devolution, the huge body of Scotland-only laws to have come out of Holyrood should be some kind of battle ground?

These laws have affected people’s lives in palpable ways – they are real in a way that ethereal fears around the future of Nato membership are not. So has separate law-making been just great, or a chance for second-rate law makers to ‘go rogue’?

At a formal lawyers’ dinner I attended in Edinburgh a few years back, the after-dinner speaker was not the customary comedian/raconteur, but one of the sheriffs, who launched into a 30-minute tirade against the Scottish executive for passing bad laws.

Why be dull, frankly?

The audience, I sense, would have preferred more jokes – but even less electrifying would have been a speech from the average ‘no’ campaign luminary.

My point is, pick up any newspaper north or south of the border, and it’s clear that the law arouses strong passions in among the media and the general population – in a way that Nato membership, say, no longer does.

So why not focus on it?

The answer that both the ‘yes’ and the ‘no’ campaigns fail to provide, is how they can respectively hope to build or maintain a nation based on the low-risk technocratic glue, and fear-stoking that the campaigns currently rely on.

As it appears at the moment, whether the result is ‘yes’ or ‘no’, it doesn’t feel as if there will be any winners.

Eduardo Reyes is Gazette features editor

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Children’s heart surgery is something I have a close interest in as a parent – till she had an operation at the hands of a world-leading surgeon, my daughter had a rather large hole where four distinct chambers should be. And I’ve known more than my fair share of children with congenital heart problems who didn’t make it.

To put it mildly, anyone touched by child cardiology comes out the other side of the experience rather suddenly more grown up.

But my interest in the temporary cessation of children’s heart surgery at Leeds General Infirmary is piqued more by the fairly shrill response to medical director of the NHS Bruce Keogh’s intervention, notably from the local Liberal Democrat MP Greg Mulholland.

Mulholland’s reaction highlights all the problems that bodies – public and private – have in trying to ingrain a healthy culture in organisations in ways that lower their risks, whether it is in banking or the NHS, and might also lower our own risks.

Put simply, in-house counsel and compliance officers, charged with managing risks in organisations should despair about the way this has played out.

There were two ‘whistleblower’-style reports here, and a set of data that at the time looked like cause for concern.

We surely aren’t so far from events in Mid Staffs, or even Bristol Royal Infirmary (where things really were amiss with children’s heart surgery), that we think Keogh shouldn’t have taken a precautionary approach here.

To act on concerns (a temporary measure), surely sends the right message about openness and reporting to anyone in an organisation who has worries. Because as it stands, whistleblowers in cases where such worries were proved justified tend to have paid a high price – just look at the careers of those who spoke out in Bristol.

In our banks, many people troubled by malpractice were made to feel they would endanger the institution and its profits unnecessarily if they rocked the boat.

Similarly, Mulholland has conflated the issue of the temporary closure quite wrongly with fears of cuts to the NHS, and accused Keogh of threatening jobs. As well as calling for his resignation.

If you’re wondering how all this fits with the culture of openness that the Liberal Democrats promoted in proposals such as a duty of medical candour (look at the legal case for it), the answer is that it doesn’t.

It is the sort of reaction that in another field emasculates the Sarbanes-Oxley Act’s power to reassure through a working structure of ‘whistleblowing’ opportunities.

To be fair to the MP, I don’t think he and others lining up to give Keogh a good kicking have thought this through. But until they do, our children, our banks, our businesses and our workplaces are less safe for it.

Eduardo Reyes is Gazette features editor

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Banks and the health service were both in the news this morning – a £400m fine for state-owned RBS for Libor-fixing; and a damning report on failings at Mid Staffordshire NHS Trust where, in addition to multiple failings, patient deaths were hundreds above what one would expect for the hospital’s profile.

In both cases, questions on who did what are being asked, along the lines of ‘where were the regulators?’ and ‘what should senior management have done?’.

But I have another question that’s being asked by fewer people – where do professional ethics sit in all this?

In Mid Staffs there were a host of professionals involved, including doctors, nurses and lawyers. Each profession is supposedly defined not by technical skill alone, but also by codes of ethical behaviour – some moral, some regulatory – which are supposed be part of each professional’s DNA.

The pressures of financial and other targets are real and present. The pressure that a lone voice can feel for speaking out when others would rather they keep quiet is equally real.

In one incident, sad to say the trust’s lawyer comes out badly – criticised for wanting ‘an adverse report about care leading to a death’ to ‘be suppressed, in part because of a fear of adverse publicity’.

The A&E consultant comes out well, refusing to change his report in the way suggested by the trust’s lawyer. Other doctors and nurses, we now know, fell far short of this consultant’s conduct.

And so to professional ethics in the financial services world. The code here is laid out for professionals in regulatory terms, though not moral ones. And as we saw in Mid Staffs, established professional ethics are no guarantor of ideal conduct.

But it still might have given someone discomforted by their involvement in Libor-rigging a sense-check, a moral benchmark – even a measure of protection – if the frame in which they operated were more than a set of rules.

A striking feature of the, often anonymous, interviews being broadcast this week by people who were discomforted by, variously, conduct at Mid Staffs and at banks involved in Libor-rigging, is that, respectively, few or none, got to the point where their sense of professional ethics made them feel bold enough to either blow the whistle or even just walk out.

It isn’t much talked about, but these are roles in society that are seeking to ‘professionalise’, and a working professional code is at the centre of that.

The British venture capital association’s members sign up to a code. Better established is the code by which members of the Chartered Institute of Insurers commit to conduct themselves.

The Chartered Institute of Managers has a code of practice that stresses, among other things, the need to ‘uphold lawful policies, practices and procedures’. There is some nascent talk of the need for bankers to have their version of doctors’ hippocratic oath. There is a Chartered Banker Institute with a code of conduct – but as well as being the only remaining banking institute in the UK, it is a Scottish body whose voluntary membership leans towards people in senior roles.

I suspect that with some of these professional and quasi-professional codes that the main intention is increase the external respect for members’ ethics and standards.

That may be important.

But external respect for professional standing isn’t the aspect that allegedly absent or dozy regulators can rely on – in the law, banking, management or healthcare. For any professional code to work, it also needs to give the professional concerned self-respect.

That is what too many of the professionals involved in these otherwise very different worlds – healthcare and banking – seemed to lack. At some cost to their peace of mind – happiness even – they stayed in post, unlistened to, and put up with being bullied and disrespected.

Regulators fell short in Mid Staffs, and in any number of financial services scenarios – that is not in doubt, and is being picked over at length in many, many quarters. But surely all of us, regulators included, were entitled to rely to a degree on professional ethics and were let down.

Those professional codes in all fields – old, new and proposed – will need to perform better in the future. And to do that, they need to be as much about imbuing self-respect as they currently are about commanding external professional respect.

Otherwise I fear we’ll be here again – and sooner than you’d think.

Eduardo Reyes is Gazette features editor

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The re-entry of the global accounting firms into the legal sector is one of the more eye-catching predictions in professor Richard Susskind’s latest book, published today, ‘Tomorrow’s Lawyers: an introduction to your future’.

I recall the impact the accountants had the last time they took aim at the legal sector. It was widely assumed that being both bigger than commercial law firms, and closer to the client through ongoing audit and consulting activities, the accountants were a huge threat. The ‘arrival’ of US law firms in London got similar attention – not least because the higher rates they were willing to pay newly qualified lawyers set the market.

Andersen-linked Garretts was the most successful, and some of the lawyers who were at the helm of Garretts are numbered among the lawyers I most respect. The firm had an international proposition which at the time was different – as ex-Garretts Julia Chain reflected in the Gazette last year.

Of course Garretts unraveled for reasons well beyond its lawyers’ control.

But are the accountants about to have another go? Does it matter if they do? (PwC Legal LLP’s 80-plus solicitors will of course be interested to hear they are planning to re-enter the legal sector.)

A lot has changed since the last time the accountants had a go in any significant way. UK law firms who were almost wrong-footed last time, are now among the most successful of the new breed of international law firms. And of course the fallout from Andersen’s collapse has limited what each accountant can do for each client.

Offering ‘legal services’ these days makes most sense in those lines of advice where accountants market what their business clients would term ‘products’ – tax or investment vehicles – and also human resources support and, to a degree, the sort of investigations work that follows charges of bribery and corruption.

I think we will see a bit more of that. PwC Legal’s head of global immigration, lawyer Julia Onslow-Cole, was on Newsnight this week, and I think you’ll see her on it again.

But a few things argue against widespread displacement of existing legal services by the ‘re-entry’ of accountants to the legal market.

First, clients’ purchasing patterns are changing. Within legal services sophisticated corporate clients are on a steady move away from monolithic ‘one-stop shops’. Prompted by a hard economy, they have become much better at ‘unbundling’ their legal advice needs – even using different firms for different parts of transactions in preference to one-stop shops, demanding the firms they instruct become adept at collaborating. For the same reason they are using the bar direct, and looking, off a low starting base, at using legal process outsourcers more.

Secondly, the world of ‘products’ mentioned above is under some pressure. As the UK furor over corporate tax arrangements of household-name companies showed at the end of 2012, the creation of the vehicles that enable tax avoidance are under close political scrutiny.

Anyone professional services firm poised to make a major investment here must be hesitating. Banks are currently facing the expensive and commercially damaging fallout from the potential mis-sale of interest rate swaps products. That rather underlines the message on products.

Thirdly, large legal teams are a huge overhead. Many commercial law firms saw their income fall by a quarter in the aftermath of Lehman’s collapse. I suspect the accountants will ‘do the math’ and work out that the unenviable task of managing the fallout of such fluctuations is a distraction and expense they’d rather be well clear of.

Accountants are also less confident-looking entities than when last they had a go. The dependence on large government consulting contracts looks over-heavy. In the UK, this potentially vulnerable work source masks in some cases a decline in other work.

Are the accountants coming? In some areas, they probably are. But the window they had to revolutionise the legal sector has surely passed.

Eduardo Reyes is Gazette features editor