The 10,500-member Law Society of Scotland is to face a vote of confidence on its future as the voice of Scottish solicitors, as grassroots opposition to the introduction of so-called ‘Tesco law’ intensifies. Members disillusioned by the body’s policy of support for external ownership and alternative business structures are behind a new referendum of members which could leave Scottish solicitors free to choose which body to join to represent their interests. The president of the Law Society has warned that the initiative could split the Scottish profession to its lasting detriment.

Some 64 solicitors from firms in Glasgow and Edinburgh yesterday signed a formal 'requisition' which compels the holding of a referendum under the Society’s constitution. Organisations backing the poll include the Glasgow Bar Association, top-10 firm MacRoberts and Govan Law Centre in Glasgow.

They claim the Society cannot continue in its 'dual function' as both regulator and representative of solicitors in light of the Legal Services (Scotland) Bill, which is currently going through the Scottish parliament.

The bill will give the Scottish government power to set the number of non-solicitors on the Law Society's ruling council, as well as setting the criteria for such appointments. Opponents of the bill believe this ‘ends the independence of the Law Society, and requires a split in representative and regulatory functions, as has already taken place in England and Wales’.

The Law Society decided last Friday to hold a separate referendum on the ‘Tesco law’ provisions of the bill, in what was interpreted as a bid to outflank lobby group the Scottish Law Agents Society, which is effectively operating as an alternative ‘voice’ for Scottish solicitors who oppose ABSs.

The major cross-border corporate firms, such as Dundas & Wilson and McGrigors, are firmly in favour of reform as they fear they will suffer in the absence of a ‘level playing field’ with England and Wales. Smaller firms, particularly in remote rural areas, appear much less keen.

John McGovern, president of the Glasgow Bar Association and a solicitor-advocate, said yesterday: ‘Law Society reform is a major feature of the Legal Services Bill. It is vital there is a referendum to allow the profession to decide whether, given the threat to our independence from government that the bill poses, it still thinks the Law Society should continue to represent, as well as regulate the profession.’

David Flint, a partner at MacRoberts, said: ‘We believe that the views of individual solicitors must be ascertained on this critical issue as recent debates and polls suggest that the Law Society council and executive may be out of touch with members. An early referendum will allow members to have their say in a democratic fashion.’

Mike Dailly, principal solicitor at Govan Law Centre, said: ‘The Law Society's role as both regulator and representative of the legal profession is rendered untenable by the Legal Services (Scotland) Bill. Solicitors should be free to choose their own independent body to represent them in the same way that workers are entitled to choose a trade union to promote their interests. A referendum will enable that choice.’

In a statement, the Law Society of Scotland said a referendum on the Society’s dual role will not take place before the planned referendum on ABSs, which was called by the Society last week. This vote will be run independently by the Electoral Reform Service as a secret ballot from the week commencing Monday 22 March.

It added: ‘The Society’s council agreed on Friday 5 March that a referendum on ABSs would provide clarity on the views of the profession and allow the Society to move forwards with a policy determined by the outcome of members’ vote. The result is expected before the stage 1 debate on the Legal Sevices (Scotland) Bill, which is due to take place at the Scottish parliament in mid-April. An SGM requisitioned by the Scottish Law Agent Society will also take place on 25 March to debate ABSs and the bill.’

Ian Smart, president of the Society, said: ‘There are fundamental changes proposed for the legal profession in Scotland in the Legal Services (Scotland) Bill. It’s important that these two distinct issues are debated and addressed separately.

'Prior to any second referendum, we intend to attempt to clarify the term "representation" in the requisition to establish whether it includes the wide-ranging professional support, representation of our members' interests and negotiations that the Society currently carries out on their behalf at all levels of government in Scotland and the UK, overseas, and to other professions and stakeholders.

'The requisition today refers to the loss of independence if section 92 of the Legal Services (Scotland) Bill becomes law. The Society has, throughout the ABS debate, maintained that independence is of fundamental importance and will continue to press for amendments to the bill to ensure it is not compromised.

'Even as currently drafted, ministers will not have "unfettered powers" to set the number or criteria for those on the Society’s council – that will be a matter for the Society's council. As drafted, the government could decide on a proportion and type of appointments but only after consultation with the Society’s council and the lord president.

'The proposed 20% non-solicitor membership on council, which will become part of the Society's obligations, was decided by Society council members and has been agreed as appropriate by ministers. I do not believe that this threatens the independence of the legal profession in any way – in fact I think we stand to gain from the talent, knowledge and experience new lay members would bring, as have other professional bodies, the majority of which have lay members on their governing councils.

'Solicitors will continue to have a significant majority vote on issues affecting them. This is despite continued pressure from the consumer lobby for somewhere between 50% to 75% of lay membership on the Society's council. Lay members have also been on the Society's regulatory committees for around 20 years and all now have 50% lay membership. Non-regulatory committees are predominantly made up of practising solicitors.

'I would suggest that, even without the Solicitors (Scotland) Act 1980, which requires the Society to represent the solicitors profession and public interest in relation to the profession, a professional body of any standing has to have the ability to regulate its members to maintain its reputation, high standards, integrity and ethical standing among its client base and the wider public, alongside its representative role.

'To split a professional body runs the risk of a split profession, which in Scotland has historically been known for its collegiate approach. The UK government split regulation and representation of solicitors in England and Wales. This has been an unpopular move among solicitors south of the border and has also increased membership costs of the Law Society of England and Wales and the SRA combined by 19% this year alone. It is a credit to the Society's representations to the Scottish government that our proposal to design a Scottish solution for the legal profession has met with agreement.'