Dean speaks at opening of the legal year

Roddy Dunlop QC, Dean of Faculty

Roddy Dunlop QC, Dean of Faculty, spoke at the opening of the legal year today at a physically distanced ceremony held at Parliament House and introduced by the Lord President, Lord Carloway.

“I am most grateful to Your Lordship for affording me this opportunity to address the court,” said the Dean.

“When we stood here a year ago, it was in the hope that COVID was on the wane, and that our way of working would soon return to normal. With hindsight, that was over-optimistic. Now 18 months in, we continue to see restrictions as to how justice is administered in Scotland.

“In those 18 months, we have seen multiple challenges. I am confident that they have been tackled appropriately, and I salute the resilience and the adaptability of all involved in

the courts and tribunals of Scotland in ensuring that the wheels of justice continue to turn. SCTS’ response in terms of innovative virtual means of allowing the courts to continue to function has been particularly impressive. The profession has, in turn, been responsive and forward-thinking, in the best interests of the clients that they serve. The challenges have been multiple, but none has proven insuperable.

“Looking forward, it is essential that we bank the many gains that have been achieved in the forced response to the pandemic. Electronic papers, long considered an optional luxury, are now here to stay. The concept of boxes of papers, of bundles tied up with pink tape, now seems almost quaint. The unanimous view is that most procedural business will remain online, and the days of agents and counsel travelling for hours for 15 minute hearings are now behind us.

“Now is the time to look forward, to envisage how we see the administration of justice in Scotland in the years and decades to come. The current consultation process launched by the civil justice council is crucial. It is one on which anyone interested in the administration of justice must make their voice heard. It is a consultation in which I hope and expect the profession will be listened to. Surveys of solicitors, of counsel, of the judiciary itself reveal a majority, across the board, who have real and pressing concerns at the current situation, in which exceptional circumstances need to be shown for an “in person” hearing. Having been fortunate enough to have participated in an in person hearing last week, I am confirmed in my own view that in person hearing are vastly superior. This can be seen in every aspect of the day.

“The ability, before the hearing starts, to discuss the case with one’s client, one’s solicitor, one’s junior, one’s opponent, is crucial in many ways. It facilitates the coming discussion. It allows the making or the strengthening of professional connections. It allows us the essential human interaction that is fundamental to our very existence as humans.

“The hearing itself proceeds as it always has, but in a way that is so very different from virtual hearings. The ability to take instructions from one’s solicitor, to receive assistance and prompts from one’s junior, is wholly unimpaired. The level of judicial engagement is significantly increased. No one has connection problems, or forgets to take themselves off mute. The court is aware of all participants, with no question of agents or junior counsel or, crucially, the client herself being no more than a name on an attendee list.

“And once the hearing is finished, there is no abrupt termination as when a Webex session is closed. There is the ability to debrief, to consider how the hearing went and where the case might be going next. To buy your opponent a coffee, or a pint. That essential human interaction is again capable of being fostered, and enjoyed.

“Multiple other benefits, in terms of well-being, lack of isolation, facilitating training, are all apparent with in person hearings, and absent when we are stuck behind screens.

“All of this leads me to the view that the central challenge for the profession in the year to come is in making its voice heard on this crucial issue. If we accede to the mantra that virtual hearings have sufficed for the last year and so will suffice for ever more, we will take Scotland in a direction that runs contrary to neighbouring jurisdictions. Job satisfaction will decrease, and there will be a consequent difficulty in attracting people into the job, or onto the bench. Impaired training will mean a weaker and less happy and engaged legal profession going forward. None of that would be in the public interest. Your Lordship and I share a common aim, being the furtherance of the administration of justice in Scotland. Working together, I am confident that we can build a system for the administration of justice that is modern, and forward thinking; that seizes the many benefits of the advances that SCTS has brought forward in the last 18 months; but which equally does not impair that administration, or ignore the interests of those that serve it, leaving them to be sacrificed on the altar of modernisation. This historic courtroom, and others like it in this great Parliament House, must return to their true purpose of hearing this nation’s most important legal cases. We should not allow Court 1 to become a museum, sitting only on ceremonial occasions like this. I am grateful for Your Lordship’s assurance that this will not happen.

“Before closing, may I note with gratitude the appearance on the bench of Lord Menzies, for what is, I understand, his last judicial appearance. Lord Menzies was in practice a highly distinguished Member of Faculty, latterly Home Depute. Since elevation to the bench in 2001 he has been a respected Senator, sitting in the Outer House and then as a Commercial Judge before taking his place in the Inner House where he has contributed to some of the most important decisions made in recent years. Always interested in the cases before him, his engagement with counsel is uniformly challenging yet helpful, and carried out with moderation and with respect. He is a hugely popular member of the judiciary, and Faculty notes his retirement with sadness. It is said that you are a long time retired, and Lord Menzies leaves the bench with Faculty’s sincere wish that this holds true. My Lord, you will always be welcome in the library, and in the reading room.”

 

Footage of the ceremony can be viewed here.