Scotland’s Legal Reform Bill shows the Government is listening to the sector, but questions remain

"WHERE there is no independent legal profession there can be no independent judiciary, no rule of law, no justice, no democracy and no freedom”: Justice Kirby, of the High Court of Australia.

The independence of our legal system is of fundamental importance to Scotland, enabling  a process that is impartial and just. This is the professed principle at the heart of the latest draft of the Legal Services (Scotland) Bill, currently making its way through the Scottish Parliament. I am heartened by amendments made to the latest draft of the bill, but questions remain about how it will operate in practice. Since 1532, the Faculty of Advocates has been a custodian of Scotland’s independent justice system, acting as the professional body for all Advocates in Scotland.

Our mission is to uphold the excellence of Scotland’s world-class legal profession and to ensure that all Scots, regardless of wealth, background or location, have access to the very best objective legal advice.

I am proud to represent a body that provides comprehensive regulation of the public office of Advocate, from entrance requirements to training to disciplinary matters. This we do as a result of delegation from, and under the oversight of, the Lord President, who has acted as the independent regulator of Scotland’s judicial system for nearly 500 years. Scotland has long been a world leader in this respect.

Following on the Roberton Review in 2018, a lengthy consultation took place. Ms Roberton had argued for the introduction of a “new independent regulator” of the legal profession. What she had failed to recognise, with respect, is that Scotland already has an independent regulator, and has done for centuries.  The introduction of a new body would simply represent unnecessary cost and burden on a system that needs no such intervention. That appeared to have been recognised in the drafting of the Bill, which leaves the Lord President in place as the ultimate regulator of the profession.

However, recent discussions of the Bill have given rise to two concerns. Firstly, the potential introduction of a new regulator – answerable to Parliament – has again reared its head. Secondly, the Bill itself contains provisions that would allow Parliament to interfere in the regulation of the profession. Neither suggestion is acceptable. Each is, as it was put by the Lord Justice Clerk in her evidence to the Civil Justice Committee, “constitutionally inept”,

We therefore welcome ministers’ announcement that the Bill is to be amended. However, without sight of the amendments that are to be proposed, final judgment must be reserved.

The foregoing are views that I underscored when I appeared before the Civil Justice Committee at Holyrood last month. I also welcomed measures that seek to streamline and reduce delays in the current complaints process, as well as mechanisms that empower the Scottish Legal Complaints Commission (SLCC) to raise complaints about the conduct of legal professionals where appropriate.

However, we remain anxious about provisions in the latest draft of the Bill, specifically the decision to remove the right to appeal decisions of the SLCC. The Bill proposes this be replaced with a right of review by the SLCC. Rather than reducing inefficiencies in the system, this instead promises to introduce them, by rerouting complaints through a costly judicial review process. That this would be worrying was emphasised by the Lord Justice Clerk, who demonstrated just how frequently the SLCC has been found, by the Inner House of the Court of Session, to have acted unlawfully.

These measures have no doubt been introduced with a mind to the public interest, and the Faculty welcomes the principles of transparency and accountability underpinning this approach. However, as they continue their consideration of the Bill, we urge MSPs to be mindful of the unintended consequences of the mechanisms they may seek to introduce.

It is our opinion that the current draft of the Bill broadly strikes a sound balance between protecting independence and regulatory oversight. The Scottish public deserves a legal system that is centred on transparency and trust, and that is not mired in delays. It is in the interests of every member of Scotland’s legal profession, members of the Faculty included, that the public can have confidence in our processes, our independence and our conduct. We simply ask that as lawmakers seek to enhance and improve elements of our legal system, they continue to listen to and take account of the views of those who operate within it. Kirby J was not engaging in hyperbole: without a legal profession that is truly independent of the State, there can be no justice, no democracy, and no freedom.

This article was first published in The Scotsman