"We have looked hard and have been unable to find such powers in any Western democracy.”
Scots lawyers disturbed by 'Orwellian' move to give MSPs 'outrageous' new powers to intervene in legal matters
Edinburgh is the long-established seat of Scotland’s cherished legal decisionmakers. But is this distinctive Scots legal system - based on Roman Law and with its own characteristics - under threat from encroaching political interference?
Many eminent lawyers, across Scotland including the nation’s leading judge, believe so. A new Bill would give Scottish Ministers – of whatever political persuasion now or in the future – the power to intervene in sensitive legal matters. There are widespread fears that this increasing centralisation of political power, along with higher levels of surveillance and control over the population, are eroding hard-won citizens and civil rights.
“This is possibly the most outrageous extension of power by a legislature over a legal profession. This is truly Orwellian in nature,” says Darren Murdoch, President of the Scottish Law Agents’ Society.
While Sheila Webster, the President of Law Society of Scotland, speaking to Edinburgh Inquirer says: “We have not seen anything like this in Scotland before. We have looked hard and have been unable to find such powers in any Western democracy.”
Ms Webster says that certain sections of the Bill will give Scottish Government Minister powers to intervene in the regulation of solicitors which is “dangerous, alarming and wrong.”
Gordon Dalyell, a partner with Digby Brown, one of Edinburgh’s largest firms and specialists in personal injury, says: “This is an increase in state regulation and interference, and is something we have not seen before.”
It is highly unusual for lawyers to resort to torrid language. So the non-legal lay person can probably sense that this is an intensely important matter for our nation.
The Regulation of Legal Services (Scotland) Bill, which will be discussed at committee stages in the Scottish Parliament in the coming parliamentary session, could well become another flashpoint between the Scottish and the UK legislature.
Most lawyers and those making submissions do acknowledge that there are many positive measures within the Bill, such as protecting the public against unscrupulous individuals seeking to pass themselves off as solicitors by adopting the term ‘lawyer’.
And there is no doubt there has been public concern over lawyers who do not ‘act in the best interest of clients’ who are then prevented from gaining redress by a profession which has been accused by some of “looking after its own”.
One central issue related to the Bill is how the complaints system is handled fairly and reasonably for both complainers and solicitors. All legal sides agree that the complaints system in Scotland does require significant improvement [See Genesis of the Debate below].
The Bill in its present form contains damaging and draconian powers in respect of eroding the rule of law, and the separation of powers, say Scottish Law Agents’ Society
However, there are far deeper concerns that “The Bill in its present form contains damaging and draconian powers in respect of eroding the rule of law, and the separation of powers,” says the Scottish Law Agents’ Society, which was incorporated by Royal Charter in 1884.
The High Court of Justiciary sits at the top of the Mound, while across the cobbled High Street, past St Giles’ Cathedral, the soft murmur of private conversations between client and advocate can be heard in the ancient 17th century walking hall of the Parliament House, attached to the Advocates Library. This building includes the original Scottish Parliament, used until the Act of Union in 1707, alongside the Outer and Inner Houses of the Court of Session in Parliament Hall. It shows how Scots law-makers and judges existed cheek by jowl before the move to London.
Our solicitors and advocates are ‘officers of the court’, admitted to practice by the Court of Session, not by the government. Not the UK or the Scottish governments.
Yet this potential new piece of legislation has sparked severe responses, with the consultation closing last week.
And, if there is any proof required that this matters deeply to Scotland’s political system, then the current battle in the United States between former President Donald Trump and the American justice system, where the separation of powers are enshrined in the American Constitution, is a stark example of how interference harms democracy.
In Scotland, there are claims by lawyers that we are facing the risk of autocratic regimes using this Bill as an excuse to justify controls over lawyers. The Scottish Government say they are not proposing such draconian powers, and argue that the intention is to protect the public from bad legal actors.
JUSTICE MATTERS IN SCOTLAND
Our courts in Scotland are politically neutral. Solicitors are bound by statutory provisions, and a code of ethics which enshrines the core values of independence, acting in the best interest of the client and the avoidance of conflicts.
The Law Society of Scotland does not want the baby thrown out with the bathwater. “It is important to stress that there is a huge amount in the Bill that is to be welcomed,” says Sheila Webster.
However, she is clear. “We have not seen anything like this in Scotland before. We have looked hard and have been unable to find such powers in any Western democracy.”
Webster says that certain section of the Bill, particularly Sections 19/20 and 41/49, will give Scottish Government Ministers powers to intervene in the regulation of solicitors which is “dangerous, alarming and wrong.”
INDEPENDENCE OF LEGAL PROFESSION
A fundamental tenet of the rule of law is the independence of the legal profession from the state. The International Bar Association describes the independence of the profession as “a bastion of a free and democratic society”.
They say: “Lawyers must be able to carry out their duties in a free and secure environment, where they are able to ensure access to justice and provide their clients with intelligent, impartial and objective advice.”
This matters to everyone in society – not just lawyers - because of the critical and unique role which solicitors play in challenging government on behalf of clients and protecting citizens from the excessive use of power by the state.
The constituent parts of a state are obliged to hold their public faith with each other, and with all those who derive any serious interest under their engagement, as much as the whole state is bound to keep its faith with separate communities,”- Edmund Burke, Reflections on the Revolution in France, 1790.
Walter Bagehot, writing in The English Constitution in 1867, spoke about the supreme importance of the Separation of Powers between Parliament and the Judiciary, saying it was a ‘fusion of powers’. The idea is that the major institutions of state should be functionally independent and that no individual should have powers that span these offices.
Bagehot explains how the Founding Fathers of America, many with roots in the Scottish Enlightenment, “wished to keep the legislative branch absolutely distinct from the executive branch; they believed such a separation to be essential to a good constitution”.
Furthermore, it was felt that “to the effectual maintenance of such a separation, the exclusion of the President’s ministers from the legislature is essential.”
So some aspects of the Bill being proposed in Scotland are seen as a dangerous move away from this basic tenet of Britain’s unwritten and evolved constitution.
In Montesquieu’s The Spirit of the Laws, written in 1748, the separation of powers is intended to guard against tyranny and preserve liberty. It was held that the major institutions should be divided and dependent upon each other so that one power would not be able to exceed that of the other two.
“In the United States and other presidential system, a strict separation is often a fundamental constitutional principle. In the United Kingdom and other common law jurisdictions, however, the theory of separation has enjoyed much less prominence,” says a House of Commons report written by Richard Benwell and Oonagh Gay.
So, in the context of 2023, the separation of powers is more often suggested as a way to foster a system of checks and balances necessary for good government
In the UK, the executive means the Crown and the Government, including the Prime Minister and Cabinet ministers. The executive formulates and implements policy. The legislature, Parliament, comprises the Crown, the House of Commons and the House of Lords. The judiciary comprises the judges in the courts of law, those who hold judicial office in tribunals and the lay magistrates. Senior judicial appointments are made by the Crown. However, since the Scotland Act 1998, the Scottish Parliament has devolved legislative powers over matters related to Scots Law.
In the Constitutional Reform Act 2005, the UK Government and Parliament reformed some of the areas where, in the UK, the “powers” had been least separated. The Act created a separate Supreme Court and the Lord Chief Justice replaced the Lord Chancellor as head of the Judiciary in England and Wales. It also placed a statutory duty on Ministers to uphold judicial independence. In Scotland, the Lord President, currently Lord Carloway, remains the independent legal head.
However, Section 41 of the Regulation of Legal Services (Scotland) Bill gives Scottish Ministers, for the first time, a direct role in approving rules on the way existing law firms operate and the conduct and practice of solicitors.
Sheila Webster says: “This is political intervention in the regulation of Scottish solicitors and contrasts sharply with the existing and long-standing practice whereby it is for the Lord President to approve solicitor practice rules.”
So, the Bill, as it stands, would “introduce unprecedented intervention in the way lawyers are regulated.”
Scottish Ministers could for the first time direct regulators and decide the working rules for the operation on law firms.
Gordon Dalyell of Digby Brown agree there is positive aspects of the Bill, including discussion over the definition and use of the term ‘lawyer’.
“The whole backdrop to this Bill is about the protection of consumers and that things are done the right way. Where the concerns arise are in relation to the extent to which government, at least potentially, if not actually, could interfere in the regulation of the legal profession. This would be in a way that significantly blurs the lines between an independent legal profession and the State.”
He says there may be times when individual or groups of citizens are critical or wish to assert their legal rights against the Scottish Government. Yet, with certain readings of the Bill, “there is significant potential for state interference into how the legal services are regulated”, he says.
This could well have an influence, for example, on the likes of state-funded Legal Aid for an individual if someone was seeking to challenge a Scottish Government ruling.
Darren Murdoch also points out Section 5 of the Bill which allows the Scottish Ministers by regulation to “add, amend or remove a regulatory objective” or professional principle.
“The Government has to ‘consult’ the Lord President, which does suggest that the drafters of this Bill may have had an inkling that the executive is coming perilously close to encroaching into the territory of the judiciary.”
THE GENESIS OF THE DEBATE IN SCOTLAND
It was the Law Society of Scotland which initially raised the issue of improving the regulatory landscape at the end of 2015. It pointed out that all of its powers came from legislation, and while there had been some updates, most of regulation dated back to the Solicitors (Scotland) Act 1980.
“The legal profession today is different from what it was in 1980. We were finding that is was increasingly difficult to apply legislation of its time to a sector that is much more cross-border and international, with more multinational and multidisciplinary major firms,” says Kevin Lang, director of external relations at the Law Society of Scotland.
It has taken some time for the Scottish Government to view this as a priority. An independent review was undertaken by Esther Roberton, which was published in 2018. This sparked a heated diversionary debate on who should regulate, rather than how the legal profession should be regulated.
“I think the post-Roberton argument about who should regulate has now been settled. It is clear this is job of the Law Society of Scotland. In the Bill, we don’t lose any of our powers - indeed we will have more powers,” says Sheila Webster.
SURPRISES FOR THE LAW SOCIETY
The Bill’s shock provisions on increased Ministerial control certainly took the Law Society by surprise.
“It came out of the blue. It was not something we had considered. None of the main players involved in the regulation of Scottish solicitors had anticipated or seen such a thing. It is pretty unprecedented in Western society in terms of the regulation of lawyers,” recalls Webster.
“We are struggling to identify what the purpose of these changes are. We have asked, on more than one occasion, for the Scottish Government to identify any occasion in the last ten years when they might have sought to use these powers that they are seeking to introduce. So far, they have been unable to point us to any examples. We are in the dark about why this has been introduced,” she says,
The debate has also been fired up by the responses of Scotland’s senior judges, who have spoken out clearly against the sections on more powers for Scottish Government Ministers.
“We are pleased that the senior judges in Scotland understood our concerns. It is of note that they make a particular point that this is the universal view of the judges in the Court of Session, including the Lord President. It is compelling that all of the senior judges have made their concerns known so strongly.”
THE SITUATION IN ENGLAND AND WALES
The Solicitors Regulation Authority (SRA), the regulatory body for solicitors in England and Wales, is formally a part of the Law Society of England and Wales but is operationally independent. While there are some differences, this is a similar set up to our own Regulatory Committee which, by law, exercises the statutory regulatory functions of the Law Society independently of the Council of the Society. The SRA Board is made up of 10 members, four solicitors and six lay members, and is chaired by a lay person. Similarly, the Law Society of Scotland Regulatory Committee is currently made up of 10 members; five lay and five solicitors, and is chaired by a lay member.
Importantly, the SRA acts completely independently of the UK Government. Ministers in England and Wales do not possess the kind of intervention or control powers which the Scottish Government is seeking to introduce in Scotland through this Bill.
Great article.