Interview: Kenneth Rose

Intrigue has surrounded the perspective role of Scotland’s biggest law firms in the Edinburgh Parliament’s legislative process ever since some advertised their services for the shadowy world of parliamentary lobbying.

Thus far, while Maclay, Murray and Spens formed Public Affairs Europe in conjunction with public relations consultancy Beattie Media and Shepherd and Wedderburn launched Saltire Parliamentary Consultants, the response of Scotland’s largest firm, Dundas & Wilson, has been conspicuously low-key in comparison.

As co-ordinator of the firm’s Scottish Parliament Group within its wider Government Services Group, Kenneth Rose is clear about the service Dundas & Wilson needs to offer its clients in respect of the Parliament.

“We’ve found since the 1997 election and the circulation of the White Paper that clients have been interested in the developments, but often without a clear understanding of how they may be affected.  Clients based in Scotland are largely comfortable with the process, but those based outside but having an interest in Scotland lack that feeling of comfort in knowing what is going on.  Our role over the last two years has been to reassure them and provide information at a very general level.”

In the Parliament’s formative stages at least, Kenneth Rose said they decided to take a watching brief.  “We didn’t want to get too politicised, for the profession as a whole this was a dangerous area to get into.  We are a service industry to represent the views and concerns of our clients, largely outside the political arena and not at the pre-parliamentary phase.”

Now that things have moved on, Dundas & Wilson are about to launch a more focused programme, telling clients what they can offer them and what they can do for themselves in and with the Parliament.  Learning from experiences in Europe has been important in shaping their approach.

“Through our international legal network I’ve spoken to lawyers in Belgium and Germany and gathered anecdotal evidence from the experiences in Catalonia, where we have a link up with Spanish firm Garringues.  There, it seems to have reinforced identify and, while it is debatable whether it is to do with the Parliament, they have enjoyed an increase in commercial activity.

“The legal professions in countries outside the UK have been different in their approach, they can be more inter-linked with governmental organisations and there is a tendency to be more involved in regional parliaments.  That model may be increasingly relevant to Scotland.

“There is a recognition in the legal profession that there are opportunities to get involved.  To be simplistic, law making is essentially just that and it will require legal input in drafting and a thought process as to how it will work in practice.”

He cites the adoption of both the feudal reform Bill and incapable adults Bill as examples of ideas stemming largely from the legal community.  “In Westminster there was an emphasis on trying to avoid mistakes.  With the Scottish Parliament there has been talk of building a new politics, though so far that has been purely driven by the electoral system.”

It still isn’t entirely clear how representations on behalf of lawyers’ clients will take place.  Initially at least there was a feeling that pre-legislative committees styled on the open fora of the US Congress would allow arguments to be heard from interested parties.  Now it seems the behind closed doors philosophy of Westminster might after all prevail.

“The jury is out as to whether arguments will take place in smoke-filled rooms in Edinburgh and Glasgow as opposed to Islington and Putney.  Politics is about winning arguments, not necessarily in an open forum, in fact rarely in open chamber.

“Cross-party committees can form policies, not just examining the executive’s legislative programme, they can also generate legislation.  However, political control will come into play.  Initially we expect there to be freedom and creativity exercised by MSPs, but when the administration seeks re-election, they will want to take credit for any successes and can only do that if it puts its stamp on what it has done.”

While still veering from referring overtly to lawyers’ representations as lobbying, Kenneth Rose is open about how Dundas & Wilson’s parliamentary group plans to make representations on behalf of clients.

“In the initial stages we’ll aim to deepen our relationships with the organs of government, to build up longer-term relationships with Ministers, MSPs and those in the government infrastructure.  We will exercise judgment as to when to get involved.  We will have to have a client with an interest.  We’re in the business of representing people, looking after their interests, not our own.”

Just as in the months leading up to the Parliament, so Kenneth Rose again emphasises information as a key element in the service on offer to clients.  “My experience is that just giving facts isn’t information, the profession needs to interpret what is going on and how it will impact on business.

“Deciding the stage for involvement must involve a combination of areas.  The traditional way of getting involved is usually through professional lobbyists who are largely good at what they do.  In the context of the Scottish Parliament, there is still a need for that.

“Some clients and trade organisations will be in a position to do that for themselves, in the way that CBI Scotland have done.  Over time there could be a strong element of representation at that level, but it is difficult for that to be a major area for the profession at present.”

Kenneth Rose sees the committee level as the best opportunity for the profession to get involved.  “The profession can make a valuable contribution determining the people to contact where a client wants information or influence.  The profession can also help to find a way to allow a client give evidence and help them put together a cogent presentation of views.

“I also suspect that law makers might see merit in involving the legal profession directly to help build legislation that works.”

Then there is the element of legal challenge to legislation which might well create a rich new tapestry of work for lawyers.

“Citizens and businesses will have the right through judicial review and other means to challenge the legality of legislation.  This new dimension of constitutional law will create over time a practice area for some parts of the profession.  We need to grasp that and see it as an opportunity.

“People might see this as a negative, anti-parliament device, but it is the role and duty of a lawyer to use the law to protect clients’ interests.  I think in this reactive process, challenges are more likely to be brought to subordinate legislation.”

In a different way, Kenneth Rose suggests the profession can assist clients in reacting to legislation that, while not capable of being challenged, merits a reaction, whether to a perceived opportunity or threat.  A particular example might be if the Parliament uses its tax-varying powers with the consequent need for employers to create systems to take that into account.

He shares some concerns that the Parliament might descend into legislation mania.  “After they have exhausted what has been building up over time when Westminster couldn’t cope, the MSPs will still want to be seen to do something and the most tangible way to demonstrate this is to produce legislation.”

Much has also been made of a drive for clearer language to be used in drafting legislation, though there could be a suggestion that lawyers have a vested interest as translators of unintelligible drafting.

“Making language clearer by using what is commonly called ‘plain English’ can cloud meaning in a legal interpretative sense.  We want to be able to give the client a clear and unambiguous interpretation which will sometimes require a more technical approach without the jargon.  Despite the public image, law is not self-serving.”

Nevertheless the impression is that for all the rhetoric and claims of an inclusive Parliament, it will in the end prove to be a forum only for large businesses and the large firms who represent them to become involved.

“Large clients tend to go to large firms, and it will be those with the deepest pockets who’ll get involved, though in some cases they will have internal liaison people and less need for lawyers.  In terms of client base, medium sized firms are less likely to represent those with the necessary management resources to get involved.  But there is no glass floor to it all, and no reason why the top firms need to be the only people who get involved.”

If no-one really now believes the lofty claims about the Parliament’s openness and accessibility heralding a new style of democracy, there is perhaps hope that with a positive contribution from the profession which meets the needs of clients, the lobbying business in Scotland can avoid the murky depths to which its Westminster counterpart too often sank.