In conversation with the Advocate General for Scotland

Michael Clancy, Director of Law Reform at the Society, spoke to Baroness Smith of Cluny KC about her recent appointment, representation in the profession, advancing the rule of law and "directly reporting into the Prime Minister".

Baroness Smith introduced herself by recounting her journey in law, a path marked by diversity in practice and geography. Initially, she was a barrister practicing criminal law before pivoting to civil law, particularly public law and clinical negligence. Reflecting on her early years, she noted, “I did criminal law predominantly for the first five years, and then I kind of moved into civil law…public law and reparation and clinical negligence”. Her varied career also includes time in the solicitor profession, which she described as “brilliant” for its variety, from handling serious criminal cases to assisting clients with issues as mundane as a “broken washing machine”.

Baroness Smith also spent time working internationally in the NGO sector, including work in South Africa and Eastern Europe, experiences that gave her a “really interesting perspective on some of the international stuff that’s coming across my desk now” as Advocate General. This experience bolstered her commitment to “the rule of law and international obligations” over a career spanning 25 years.

The role of the Advocate General

As Advocate General, Baroness Smith performs a distinct legal advisory role, one that is independent from the Attorney General and the broader ministerial structure. She clarified the unique position of the Advocate General, stating, “I am one of three law officers…the Attorney General and the Solicitor General are the English law officers. I am the Scottish law officer…and I don’t sit within any department”. Unlike other ministers who report directly to a cabinet secretary, she remarked, “Is it Prime Minister?” when asking about her line manager. She was told yes, with the observation that “he’s probably not checking every single line of my homework… but it’s probably quite bad if something goes wrong”.

As part of her duties, she advises government legal departments on legislation and policy, ensuring Scotland’s legal requirements are considered at every stage. Her role, she elaborated, uniquely positions her to “advise all departments on the law relating to Scotland”.

Reaffirming the rule of law

In her conversation, Baroness Smith highlighted the importance of restoring the UK’s commitment to the rule of law on an international stage, a theme she passionately emphasised. “The Rule of Law is back,” she declared, signalling a renewed focus on maintaining the UK’s legal integrity and honouring its “international obligations, and the treaties that we are signatories to”. She acknowledged recent challenges to this reputation, stating that for the UK to regain its standing, it must avoid enacting legislation “in the knowledge that legislation contains within it breaches of international law”.

Baroness Smith stressed that this restoration of reputation is essential to build trust with international peers. “We have a job to do, which is to restore our reputation internationally as a country and as a UK government,” she explained, adding further that actions, not just words, would drive this change.

Commitment to diversity

Turning to diversity within the legal profession, Baroness Smith paid tribute to trailblazing women, including Dame Margaret Kidd, the first female advocate and first woman to “take silk” in Scotland. She reflected on the progress women in the profession have made while also acknowledging that “we must maintain a constant vigilance” to ensure continued improvement.

Diversity, she noted, is not solely about gender. Other underrepresented groups, particularly individuals from different socioeconomic backgrounds, also face barriers. “Historically, we have not covered ourselves in glory in terms of paying attention to underrepresented groups,” she admitted, pointing out that many individuals “carry more than one underrepresented characteristic”. Mentorship and role models, she stressed, are essential to inspiring the next generation of legal professionals.

The role of lawyers amidst public criticism

Baroness Smith spoke candidly about the challenges lawyers face due to growing populism. She recalled the “Enemies of the People” headline targeting Supreme Court justices, noting the need for government officials and the media to protect judicial independence. Recounting the delayed response from the Lord Chancellor at that time, she commented, “The media are reporting in a way that’s just completely and utterly unacceptable,” and stressed the importance of a quick response in defending judicial impartiality.

These attacks, she argued, are part of a broader trend of populist movements portraying institutions such as the judiciary as antagonistic to “the people.” This perception, she warned, could lead to further polarisation, putting lawyers and judges at risk. “There seems to be a sort of trend… to look at things like an independent legal profession as an institution that is against the people,” she observed.

Strengthening the UK-Scottish government relationship

Baroness Smith addressed the need for collaboration between the UK and Scottish governments, emphasising her role in advocating for Scotland’s interests in Westminster. She highlighted the Prime Minister’s early initiative to meet with the First Minister of Scotland as a positive step, aimed at “resetting the relationship between Scotland and…the other parts of the UK”.

The practical challenges of maintaining this relationship often arise in legislative contexts. For instance, the Renters’ Rights Bill, although primarily concerning England, has implications for Scotland. Baroness Smith illustrated how cooperative legislative efforts ensure that such bills can address Scotland’s unique legal needs. “My primary role is to make sure that it’s embedded in policy thinking that Scotland is not a section that’s tagged onto legislation at the end,” she explained. Another example, the Tobacco Vapes Bill, showcased collaborative legislation to ensure young people in both England and Scotland receive the same protections.

Concluding reflections

Baroness Smith’s address serves as a testament to her commitment to legal integrity, diversity, and Scottish interests within the UK. She highlighted the importance of leadership in restoring trust in the rule of law and underscored the role of lawyers in upholding democratic values amid rising populism. As Advocate General, she seeks to ensure that the legal frameworks binding the UK and Scotland remain robust, equitable, and reflective of shared values, a role she embraces with “enthusiasm” and “a genuine effort to press the reset button” for UK-Scottish relations.

In her own words, her career has been about “doing business with each other” to achieve “good governance” through cooperation and respect. With such perspectives, Baroness Smith’s tenure as Advocate General promises a thoughtful and collaborative approach to the UK’s legal and legislative challenges.

Summary of interview written by Rebecca Morgan, Editor