Once again we have the unedifying sight of an amateur administration meddling in an issue of which it has little expertise – Scots Law. While there are aspects that can do with speedy reform, particularly reducing costs for the poor and increasing representation of the needy, and removing MI5 from the Crown Office and Procurator Fiscal Service (COPFS), handing the control of Scots Law to the government of the day is not one of the pressing reforms.
The tendency of the SNP has been to impose radical change in aspects of society for no discernible reason other than it can do it. Radical alteration to protect Scotland against an increasingly belligerent British State it seems wholly unable to resist in any way or form other than making moaning sounds as if being shafted.
Scotland’s national party has a bad history of burdening itself with poorly thought through, deeply flawed plans whilst shirking the main one it was elected to secure – reinstatement of full self-governance. This time the SNP has inadvertently invited our colonial opponents to take part in challenging their folly. Keir Starmer, Labour leader, has visited Scotland to discuss the matter with lawyers, a clear case of England interfering in Scots Law. How’s that for clever statecraft?
The issue has attracted condemnation from Scotland’s legal practitioners, and in this article culled from the Times, the eminent QC Roddy Dunlop, explains his antagonism. Let battle commence.
“Scotland’s most senior advocate has attacked plans to reform the legal profession as “unconstitutional” and warned that the matter could be taken to the Supreme Court.
Roddy Dunlop QC, dean of the Faculty of Advocates, said the Roberton report, which recommends handing the regulation of Scotland’s legal system to a commission answerable to the Scottish parliament, would end four centuries of judicial independence, and would have to be challenged in court.
His views follow an unprecedented attack from Lord Carloway, lord president of the Court of Session, who described the report as “an unwarranted and unacceptable interference by the government and parliament with the judiciary”, and drew comparisons with Poland, which has been fined by the European court for failing to guarantee the independence of its judges.
The government is considering recommendations in a 64-page report on the regulation of legal services in Scotland, carried out by Esther Roberton, the former chairwoman of NHS 24. Among them she proposes creating a single regulating body, which would replace the lord president as the ultimate authority in registering, training and admitting advocates to the court system in Scotland, a proposal Dunlop has described as “vandalism”.
He told The Times: “If there were a proposal introduced that was deemed either by ourselves or the Law Society to be unconstitutional, we would seek judicial review of that reform that would have to be heard in the usual way by the Court of Session, would be appealable to the Inner House, and with permission would be appealable to the supreme court.”
He said he hoped the government would reject the proposal, but the profession had to be prepared to challenge it. “I am optimistic that ministers will listen to concerns expressed by the judiciary, because to be frank it would be madness if they didn’t,” he said. “But I rule nothing out. I am keen to stress I have no basis for attributing bad faith on the part of anyone here. I just don’t think the consequences have been thought through.”
On the intervention of Lord Carloway, Scotland’s most senior judge, Dunlop said: “Ordinarily, the judiciary only speaks through its judgments, so for that reason it’s unprecedented. I can’t think of a situation where there’s been such a forthright exchange of views.”
The Roberton report addresses a range of issues, from how complaints against lawyers are handled, to the training, recruiting and monitoring of solicitors and advocates. Its central recommendation is the establishment of “a single regulator for all providers of legal services in Scotland.”
Although it would be “independent of both government and those it regulates,” it would ultimately be accountable to the Scottish parliament and subject to scrutiny by Audit Scotland.
Dunlop said: “The [Roberton] proposal would remove the lord president as the ultimate regulator of the legal profession and replace him instead with a quango which is itself answerable to parliament. That is a position that constitutionally I find entirely objectionable, as does the judiciary, for the simple reason it is absolutely essential we have an independent legal profession.”
He said that, so far as he knew, there was no intention by SNP ministers to interfere in the independence of the judiciary, but that might not always be the case. “Firstly one can never rule out the possibility of a rogue parliament,” he said, “But secondly it’s as much about perception as reality, and the legal profession needs to be actually and as a matter of public perception independent of the state.”
A Scottish government spokesman said: “Scotland has one of the best legal professions in the world; however improvements are needed to further support access to justice in modern Scotland. That is why we launched a consultation based on the recommendations in the earlier independent Roberton review.
“The independent review was established as a result of calls for regulatory reform by the legal sector and others. The proposals in the consultation were developed collaboratively with stakeholders representing the legal sector and consumer view.” Ministers would publish a report after considering all the consultation responses.
Meanwhile Sir Keir Starmer has urged SNP ministers not to “arrogantly push on” with the proposed reforms. The UK Labour leader, a former director of public prosecutions in England and Wales, echoed concerns that the changes could risk the independence of the judiciary.
He met a group of about 30 lawyers during a trip to Scotland and said they were “very concerned” about the changes, which would involve moving regulatory powers from the Court of Session to a body that is answerable to Holyrood. Starmer said that there was “a strong feeling that the SNP government is not listening to them and is sort of arrogantly pushing on with proposals instead of listening to the legal profession on what is a very important issue”.
Scottish government officials pointed out that the proposals in a recent consultation were “developed collaboratively with stakeholders representing the legal sector and consumer view”. Ministers will publish a report outlining their preferred option.
Starmer said he was not opposed to reforms but that they must command the support of the legal profession. He said the profession was angry because there was “this sense that you’ve got a government that is quite blinkered and is arrogantly and arguably recklessly just ploughing on with proposals, which could and should be changed”.
Starmer added: “I have worked in dozens of countries across the world, including countries where the line between the judiciary and the legislature has got blurred, and it is not good for a functioning democracy.”
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Grouse Beater 
What a sad indictment of our supposed ‘Scottish National” government has managed to have the Scottish legal profession court the protection of an British/English knight of the realm lawyer.
Perhaps we can also enlist the British State’s support to de-politicise our COPFS and to avert the possibility of the introduction of juryless trials for “serious” crimes currently being considered by Lady Dorrian on behalf of the Scottish Government …
Excellent piece, Grousebeater: erudite and to the point.
“… The tendency of the SNP has been to impose radical change in aspects of society for no discernible reason other than it can do it. Radical alteration to protect Scotland against an increasingly belligerent British State it seems wholly unable to resist in any way or form other than making moaning sounds as if being shafted… ”
This attitude is entirely in keeping with its complete surrender to Stonewall and is Scottish arms. That organisation, too, pays lip service only to the law, and its attitudes run through the whole Scottish government structure. Have they learned nothing from the Salmond debacle when legal niceties were jettisoned in favour of totalitarian brute force?
“… Roddy Dunlop QC, dean of the Faculty of Advocates, said the Roberton report, which recommends handing the regulation of Scotland’s legal system to a commission answerable to the Scottish parliament, would end four centuries of judicial independence, and would have to be challenged in court… ”
Indeed. The legal system might seem like a monolith, and god knows, there is plenty of room and scope for reform, but not in this way. Every so often, a comprehensive and detailed study and investigation has been carried out by a senior jurist to try and improve the profession – Stair and Gordon, in the past – and this is how any restructuring should be undertaken. Neither the parliament nor the government of the day has any moral, political or legal mandate to place their size tens into a profession which stands or falls by its implied impartiality.
“… His views follow an unprecedented attack from Lord Carloway, lord president of the Court of Session, who described the report as “an unwarranted and unacceptable interference by the government and parliament with the judiciary”, and drew comparisons with Poland, which has been fined by the European court for failing to guarantee the independence of its judges… ”
Lord Carloway is one of the few senior judges who has had the temerity to both criticise government in Edinburgh and in Westminster and to call for the protection of the Scottish legal structure from interference from the south. Any interference in Scots Law is a breach of the Treaty of Union, but never let it be said that this SNP government would do anything to oppose making everything in Scotland more supine and tied into the Union – even if they are doing it inadvertently because they have not not their homework. Not doing their homework is entirely consistent with how this administration operates. Och, why bother, eh, when you can just make things up as you go along?
“… Meanwhile Sir Keir Starmer has urged SNP ministers not to “arrogantly push on” with the proposed reforms. The UK Labour leader, a former director of public prosecutions in England and Wales, echoed concerns that the changes could risk the independence of the judiciary… ”
I wouldn’t trust the leader of the Labour party as far as I could throw him, but I suppose he was approached to say something? In any case, what is done here today is almost always reflected in England tomorrow, and he might be a middle-of-the-road, middle-of the-fence kinda guy, but he is nobody’s fool. He knows perfectly well that any Westminster administration would also love to get its sticky paws on the legal system in England, too.
While we are wise not to pay too much heed to what happens in England, in the sense that we should be very, very wary of anything that emanates from there and which could be detrimental to our own, separate jurisdiction/culture/politics, etc., we should also be aware that cross-border organisations just wallow in the opportunity to expand their influence: Stonewall, if nobody’s noticed? There will be times when we should pay close attention to the overall direction of travel, and, if government gets away with it up here, you can bet your bottom dollar, that Westminster will try to get away with it down there – and vice versa, of course.
Reblogged this on Ramblings of a now 60+ Female.
Extremely sad state of affairs. Sturgeon’s so-called “Government” is destroying our country. I certainly don’t want independence while she remains FM.
Pardon???
The SNP want to do what?
And they have made it possible for Sir Keir Starmer to lecture the Scottish Parliament about Scots law?
Starmer is a very dodgy man and this a dangerous legal moment.