No room for complacency

Colin Campbell, QC has completed his first six months as Dean of the Faculty of Advocates. Here he considers some of the challenges and opportunities facing the profession – and in particular the Bar – in Scotland.

I welcome this opportunity to offer some thoughts on current challenges and opportunities for the profession, the system of justice in Scotland, and the Bar in particular.  Before doing so, I would like to recognise the warm and good relations which exist between the two branches of the profession in Scotland. It is important to acknowledge that, whilst solicitors and advocates perform separate and distinct functions, we are part of the same profession with the same fundamental goals.  Of course, there will be times when there are differences of view. However, I welcome the open and regular dialogue which takes place between the Faculty and the Law Society of Scotland.  This good communication is central to our joint commitment to the effective administration of justice in Scotland.  

These are challenging times for the legal profession in Scotland.  Generally the professions as a whole are under pressure to justify themselves, and lawyers are no exception.  This has come from all parts of the political spectrum, and from a news media which sometimes seems to relish such pressure.  Numerous reviews are being carried out by various bodies into many aspects of the profession and the justice system.  For example, the Justice 1 Committee of the Scottish Parliament is asking whether lawyers should continue to be responsible for conduct and standards within the profession.  The Justice 2 Committee is scrutinising the Crown Office and the prosecution of crime throughout Scotland.  South of the border and in the Republic of Ireland, the relevant competition authorities are questioning well established features such as the Bar’s rules against partnerships and direct access.  

On the wider scene, the World Trade Organisation continues to identify the provision of legal services as indistinguishable from the sale of consumer products.  This has spawned the ongoing professionalism/commercialisation debate within organisations such as the International Bar Association.  It has also encouraged some to view requirements for basic competence in a particular legal system as no more than irritating barriers to trade.  

It would be easy to perceive all this as an “assault” on rightful “privileges”, thus creating a mood within the profession of sullen self protection.  However, I firmly believe that these are challenges which ought to be regarded as an opportunity to analyse our fundamental values and as a prompt to engage with the Government, the new Parliament and the wider public.  For the Scottish Bar I see the purpose of this engagement as the explanation of what we do; why we do it this way; and why these features operate strongly in the public interest.

To respond in a positive manner to all of the above is important for reasons which go well beyond the interests of the Bar itself.  Referral Bars throughout the world have consistently promoted the independent administration of justice above all other considerations.  This is a general principle which applies to all parts of the legal profession, not just the Bar.  Some may be tempted to dismiss this emphasis on independence as an unimportant shibboleth, designed only to protect vested interests.  However in my view, if independence is subordinated to the plethora of other demands, a precious and vital feature will have gone from our public life.

To illustrate the point, let me take one example.  Those responsible for the prosecution of serious crime face calls for greater “accountability”, and for participation “in partnership” with other agencies.  The risk is that prosecution decisions may be perceived to be influenced by outside pressures. The time may be close when the line distinguishing an independent prosecution system from an arm of Government must be clearly identified and respected. The concept of an independent prosecution system is widely supported, but it is the practical judgment involved in the placing of the line which is crucial.

The importance of an independent judiciary is also generally accepted.  However, even that part of our justice system is not immune from the kind of pressures I am discussing.  Our judges should be safeguarded from a culture which might tend to interfere with their pre-eminent function, namely doing justice according to the rule of law.  For example, while it is inevitable that there will be concerns as to how particular decisions will be presented in the media, we should ensure that independence from that pressure is maintained.  Likewise, it is inevitable and understandable that there will be pressure on the financial and other resources available to the justice system.  However, in my view it is essential that the function of the independent judiciary is not harmed by such constraints.  Recent experience in Zimbabwe underlines the importance of protecting the judiciary from the currents of the political tide of the day.

It is equally important to maintain the independence and integrity of the legal profession as a whole.  In giving evidence to the Justice 1 Committee during its investigation of the regulation of solicitors and advocates, I stressed two things.  Firstly, self regulation is one of the primary guarantees of the independence of the legal profession.  For example, a lawyer acting against the Government should be free from any concern that an arm of the Government or any body established by the Government can both regulate and investigate his conduct.  Secondly, if regulation is removed to another body,  this would weaken the authority and the ability of the leaders of the profession to insist on and maintain high standards of professional and ethical conduct.

The challenge for the Bar is to ensure that its system of self regulation is – and is seen to be - efficient, fair and understandable to the public.  In this regard, amongst other reforms, the Faculty has altered its complaint handling procedures to ensure that a lay person participates in the consideration and determination of all complaints.  Further, the oversight by the Scottish Legal Services Ombudsman provides a valuable impetus to improvement, and considerable reassurance that the public interest is being safeguarded.

In light of the foregoing, it should be plain that there is no room for complacency within the legal profession.  I speak only for the Bar, but in this regard I can report that, contrary to recent headlines, the wearing of wigs in court is not the most important item on the agenda.  Rather, the Faculty has instituted a programme of analysis and reform based on three central ideas:

• The ethos of the Scottish Bar is its independence from outside pressures and influence, underpinned by the highest standards of professional and ethical conduct.
• Members of the Scottish Bar aim to provide skilled advocacy and excellent legal advice for all who choose to use our services throughout Scotland, in an efficient, flexible and cost effective manner.
• The Faculty as a professional body, should be open to good ideas for change and should thoroughly engage in an appropriate way with the public and the public life of Scotland.

Thus Faculty committees are currently working on, amongst other things, the expansion of continuing practice development; the creation of a pro bono unit; new methods of assessing intrants prior to admission; a review of our Code of Conduct; and finalisation of the Faculty’s equal treatment strategy.  We intend to assess the role advocates can and should play in the wider arena of alternative methods of conflict resolution.  I also consider it important that, when appropriate, members of Faculty should be prepared to comment on legal issues of general interest and current concern, and thus help to provide useful information to the media, politicians and the public at large.

Our commitment to advocacy skills training for devils and members is as strong as ever.  The Faculty provides one of the leading advocacy skills programmes in the world.  In the last seven years 150 intrants have undergone eight weeks of intensive and structured advocacy training.  100 qualified members have undertaken similar courses in the same period.  I believe that this demonstrates our determination to maintain and raise standards.  In recognition of the Faculty’s standing in this regard, our members contribute to advocacy courses elsewhere in the English speaking world.

The Faculty is co-operating with all of the current inquiries, including Lord Bonomy’s review of the High Court.  In this regard we have recently submitted to the Scottish Legal Aid Board a proposed scheme for graduated fees for advocates in criminal legal aid cases.  We have taken expert advice and invested a great deal of time and energy in this proposal.  There has been no increase in criminal legal aid scale rates for ten years, notwithstanding the need to ensure an adequate supply of counsel, at all levels of seniority, skilled in criminal practice.  If accepted, the proposed scheme will provide a fairer, quicker and administratively less expensive system.  Advocates no longer have a monopoly of rights of audience in the High Court, but we still aim to play a key role in the prosecution and defence of serious crime in Scotland.  We await the Executive’s response to this proposal with great interest.  

At the end of this month in Parliament House, the Faculty will be co-hosting with the Australian Bar Association the Inaugural World Conference of the Independent Referral Bars. Mary Robinson, the former President of Ireland and currently the United Nations Commissioner for Human Rights, will be delivering the keynote address.  We are delighted that she has agreed to visit Edinburgh and address our conference.  In addition, distinguished speakers from all parts of the globe will address the important issues facing the Faculty and other referral Bars today.  These include quality standards and competence; direct access and independence; and the independent Bar’s relationship with the state.

This important event will give us the opportunity to reflect on the fundamentals which underpin the role of the Faculty in modern Scotland, and why it operates in the public interest.  With the kind permission of the editor, I will address these matters in next month’s issue of the Journal.  In particular I will contend that the basic features of the independent Bar lead to greater choice for the consumer, and enhance the quality of legal services for our citizens and for the overall administration of justice in Scotland.