The independence of the Scottish Bar is under threat

Dean of the Faculty of Advocates, Roddy Dunlop KC

THE Faculty of Advocates has in general welcomed the introduction of the Regulation of Legal Services (Scotland) Bill, much of which recognises and preserves the independence of the legal profession.

However, as the Scottish Parliament reconvenes this week following the summer recess, there are certain aspects which, we believe, pose a threat to the independence of the referral Bar in Scotland, and which accordingly we oppose in the strongest of terms.

The Faculty of Advocates ensures the people of Scotland, regardless of wealth, background or location, have access to the very best independent, objective legal advice. Retaining the independence of the Scottish Bar is key: it is of fundamental importance to citizens who access our courts that their cases are handled impartially and independently.

Having been at the forefront of legal excellence since 1532, Faculty also regulates the training and professional practice, conduct and discipline of its advocate members. It takes its responsibilities here seriously, with a deep recognition that the proper regulation of advocates is in the interests of both the public and its advocate members. It goes without saying that all Faculty members have an interest in Faculty maintaining high standards of professionalism and behaviour, and in there being public confidence in it and in its processes.

Currently, any amendments to regulatory decisions and the regulatory powers of the Faculty of Advocates fall under the auspices of the Lord President. The Lord President is independent from government and parliament, as well as from those whom he regulates. He is the head of the Scottish judiciary and holds the responsibility for regulating the legal professions in this country on behalf of Scotland’s highest civil court, the Court of Session.

However, certain sections contained in the Regulation of Legal Services (Scotland) Bill would, if implemented, see the government empowering itself to act as a co-regulator alongside the Lord President. It would also see the removal of some aspects of the Court of Session’s current oversight of legal professionals.

The fundamental impact of these changes would be to open the way for ‘regulation’ to be used as a back door which the government of the day might use to control or influence independent legal professionals. These are the same legal practitioners whose role is often to hold the government to account. That possibility need only be stated for its undesirability in a modern democracy to be manifest.

Faculty believes that the potential import of these changes has not yet been fully understood by the legislature. It does not suggest for a moment that this is the true intention of current Ministers. Nevertheless, history teaches us that, where the exercise of executive power is concerned, it is not always present intention that matters.

It is, therefore, Faculty’s considered opinion – supported by other sections of the legal community in Scotland including the Senior Judiciary – that these provisions should be removed from the Bill. With this in mind, it is disappointing to hear the First Minister say that he “fundamentally disagrees” with those raising concerns, and we would urge him to think again.

Faculty is also keen to see changes that would address the complexity of the current regulatory environment in a manner that would result in a more streamlined and effective complaints process, which would be to the benefit of all. The Bill appears, in some instances, to add to these complexities, rather than simplify them.

This first appeared in The Scotsman.

The full response of the Faculty of Advocates to the Regulation of Legal Services (Scotland) Response: Stage 1 Consultation can be found here.