Speaking in the public interest

“The clearest way to show what the rule of law means is to recall what happens when it ceases to exist.”

These words of President Eisenhower were quoted by the Society’s own President, Ruthven Gemmell, opening the debate billed as “Balancing the Scales of Justice” in Edinburgh’s National Galleries last month. Timed for the day before the Scottish Parliament held its stage 1 debate on the Legal Profession and Legal Aid (Scotland) Bill, the event was the Society’s attempt to highlight the fears for the independence of the legal profession – with which, the President pointed out, the rule of law is inextricably linked – raised not only by the bill but also other current government proposals.

The format was principally to provide a platform for eminent figures, from home and abroad, to share their perceptions of the real threats to independence even in modern western society – to the extent that during the panel session one member of the audience, solicitor Alistair Gordon, called the event a rally rather than a debate. Few who were present, however, would deny the powerful content of the presentations from the three headline speakers, Zimbabwean Sternford Moyo, and the eminent retired Scots judges Sir David Edward and Lord McCluskey, featured below.

Further lively exchanges ensued in the panel session as both Jane Irvine, the Scottish Legal Services Ombudsman, and Martyn Evans, director of the Scottish Consumer Council, stoutly defended the principles of the bill in relation to complaints handling and suggested that the fears expressed had been overdone.

To this observer at least, the debate on complaints handling can too easily become blurred between the principle of having complaints dealt with by an external body, and the issues raised by the present bill, and the discussion in straying from one territory to the other and back again, at times generated more heat than light.

The event of course was only the culmination of a lengthy campaign by the Society and others to raise the profile of the independence issue in the context of current developments. Whether or not it can claim any direct effect, the Deputy Justice Minister promised during the parliamentary debate the next day to bring forward a series of amendments to the bill which he claimed would remove any dangers in that respect.

Mr Henry’s concessions largely succeeded in removing independence as an issue during the debate. Certainly a number of members who spoke admitted to rewriting their speeches in the light of changes announced, and only Margaret Mitchell for the Conservatives continued to express real reservations as to whether the amendments would go far enough to resolve the issue.

At the time of writing we have not yet seen all the proposed amendments, or been able to assess their impact on the independence issues raised. The Society is taking further advice from Lord Lester of Herne Hill QC, who first pronounced against the bill’s compatibility with the European Convention on Human Rights. The Executive, in contrast, has maintained its position that the bill as presented was ECHR-compliant, and claims the amendments simply add further safeguards.

Of course, the Legal Profession Bill is only part of the story: the paper on judicial independence, which also featured strongly in the “Balancing the Scales” presentations, is at least as significant. That topic has been shelved until after next year’s elections, but is still there as a potential measure for a future administration, and the trenchant observations made in the Galleries presentations stand as a powerful contribution to the debate.

Even if the threat from the bill has been eliminated, the fact that the proposals could be presented at all indicates that the issues are not well understood. If the conference helped change that, it was undoubtedly worth holding – and recording. More likely than not the issue will raise its head in some other guise in the future.

Keynote address

Sternford Moyo

A case for self regulation

“Lawyers and journalists are public watchdogs. Few will require persuasion to understand that all is lost when the leash of the watchdog is handed over to those it is meant to watch.”

One might not instinctively draw parallels between the difficulties facing the legal profession in Zimbabwe and those currently occupying solicitors here in Scotland. But in what Sir David Edward, who followed him, described as “a moving and profoundly disturbing address”, Sternford Moyo left no one in the audience in doubt that developments in the democratic West are watched closely by regimes that operate under fewer constitutional restraints.

The former President of the Zimbabwean Law Society, who also holds office in the Human Rights Institute of the International Bar Association, told the seminar that this was the greatest danger arising from legislation designed to increase the control of the executive.

“In a media case to challenge provisions of the Broadcasting Act of Zimbabwe which prevented private broadcasters from operating in the country and created state broadcasting as opposed to public broadcasting, the Supreme Court drew heavily on governance arrangements made for the BBC and other broadcasting regulators in the developed world to determine what was acceptable. That approach is likely to be followed in respect of the legal profession.” In the broadcasting case, he added, the court found in favour of the state as the provisions did not appear to be contrary to normal democratic practice.

Moyo also insisted that an independent legal profession is necessary to underpin the independence of the judiciary itself. “Judges acquire their habit of independence as legal practitioners”, he declared, adding at another point that since the profession is at the forefront of challenging legislation and executive actions which violate fundamental human rights, without an independent profession the judiciary will not have the opportunity to strike down measures which amount to a violation.

“The legal profession… is part of the mechanism for checks and balances which form the concept of separation of powers, without which it is not possible to create an environment in which the rule of law is observed.”

Describing as “particularly unconvincing” the taking away of regulation from the legal profession in the name of protecting the public, Moyo maintained that there were very few jurisdictions in which it could be said that the profession’s control over its members was ineffective; whereas “It does not take much effort to identify examples of ineffective and bureaucratic statutory bodies controlled by governments.” And looking at the proposed Scottish Legal Complaints Commission, Moyo challenged the fact that it would have substantial judicial authority while “no effort has been made to give it the characteristics of a judicial as opposed to an administrative body. The usual safeguards to ensure its independence from the executive have not been incorporated in the legislation”.

Concluding with a further plea on behalf of his homeland, he stressed that giving a government agency control over the profession in an environment in which defenders of human rights had been subjected to severe media attacks, arrests, physical attacks by state-supporting organs and blacklisting from performing government work, “could, in my respectful view, be disastrous for human rights, observance of democratic values and the rule of law”. 

Keynote address

Lord McCluskey

A betrayal of devolution

“The clearest way to show what the rule of law means is to recall what happens when it ceases to exist.”

These words of President Eisenhower were quoted by the Society’s own President, Ruthven Gemmell, opening the debate billed as “Balancing the Scales of Justice” in Edinburgh’s National Galleries last month. Timed for the day before the Scottish Parliament held its stage 1 debate on the Legal Profession and Legal Aid (Scotland) Bill, the event was the Society’s attempt to highlight the fears for the independence of the legal profession – with which, the President pointed out, the rule of law is inextricably linked – raised not only by the bill but also other current government proposals.

The format was principally to provide a platform for eminent figures, from home and abroad, to share their perceptions of the real threats to independence even in modern western society – to the extent that during the panel session one member of the audience, solicitor Alistair Gordon, called the event a rally rather than a debate. Few who were present, however, would deny the powerful content of the presentations from the three headline speakers, Zimbabwean Sternford Moyo, and the eminent retired Scots judges Sir David Edward and Lord McCluskey, featured below.

Further lively exchanges ensued in the panel session as both Jane Irvine, the Scottish Legal Services Ombudsman, and Martyn Evans, director of the Scottish Consumer Council, stoutly defended the principles of the bill in relation to complaints handling and suggested that the fears expressed had been overdone.

To this observer at least, the debate on complaints handling can too easily become blurred between the principle of having complaints dealt with by an external body, and the issues raised by the present bill, and the discussion in straying from one territory to the other and back again, at times generated more heat than light.

The event of course was only the culmination of a lengthy campaign by the Society and others to raise the profile of the independence issue in the context of current developments. Whether or not it can claim any direct effect, the Deputy Justice Minister promised during the parliamentary debate the next day to bring forward a series of amendments to the bill which he claimed would remove any dangers in that respect.

Mr Henry’s concessions largely succeeded in removing independence as an issue during the debate. Certainly a number of members who spoke admitted to rewriting their speeches in the light of changes announced, and only Margaret Mitchell for the Conservatives continued to express real reservations as to whether the amendments would go far enough to resolve the issue.

At the time of writing we have not yet seen all the proposed amendments, or been able to assess their impact on the independence issues raised. The Society is taking further advice from Lord Lester of Herne Hill QC, who first pronounced against the bill’s compatibility with the European Convention on Human Rights. The Executive, in contrast, has maintained its position that the bill as presented was ECHR-compliant, and claims the amendments simply add further safeguards.

Of course, the Legal Profession Bill is only part of the story: the paper on judicial independence, which also featured strongly in the “Balancing the Scales” presentations, is at least as significant. That topic has been shelved until after next year’s elections, but is still there as a potential measure for a future administration, and the trenchant observations made in the Galleries presentations stand as a powerful contribution to the debate.

Even if the threat from the bill has been eliminated, the fact that the proposals could be presented at all indicates that the issues are not well understood. If the conference helped change that, it was undoubtedly worth holding – and recording. More likely than not the issue will raise its head in some other guise in the future.

“Sternford Moyo spoke from the heart but also from experience”, Lord McCluskey began his address. “I’ll speak from experience but also from the heart.”

True to his word, his Lordship proceeded to launch into a stinging critique of the superficiality of analysis behind the Legal Profession Bill and the paper on judicial independence, and the dangers of watering down essential safeguards in the manner proposed.

The proposed complaints system, he said, was to replace those put in place on the recommendation of the 1980 report of the Hughes Commission, a distinguished body which had held lengthy meetings and evidence sessions over three and a half years. “The superficiality of the present proposals is a disgrace by comparison.” The ministers responsible for the bill had no knowledge of legal practice; and he knew of only one of their civil servants who had any. And without a body such as the House of Lords with the legal expertise to assess and improve legislation before it, the Holyrood parliament, controlled by the Executive, was liable to pass the “dangerous dogs” type of legislation – poorly thought-out solutions on the back of a populist agenda which are now widely agreed to have been inappropriate.

“We also see a lazy tendency to adopt English solutions to English problems and try to give them a Scottish accent.”

Like Sternford Moyo, Lord McCluskey insisted that an independent profession was a sine qua non of the independence of the judiciary. “It is not just one of the fundamentals of a democracy; it is an absolute cornerstone. Lawyers must be able to come to court and plead a case without thinking, will the client complain? Or even someone else, such as a witness.”

The Legal Profession Bill, he added, would make “massive inroads” into the independence of solicitors and advocates. “Although everyone must accept that an independent body is needed to deal with complaints against lawyers, the proposed Scottish Legal Complaints Commission goes way beyond that and is certainly not ‘independent’ of government.” Lord McCluskey criticised the proposals for non-lawyers to decide cases of professional negligence up to £20,000 in value with no appeal to the court, by a body under the control of the Executive as regards appointment, removal, pay, pensions, and power of veto of its proposals in relation to staff or procedures. The bill, he predicted, stood a good chance of being struck down as in breach of article 6 of the European Convention.

He also criticised the position of the Scottish law officers under the devolution settlement, by which the Lord Advocate became a member of the Executive – “in bed with the politicians”. Pointing to the involvement of the Lord Advocate in creating the present proposals, and at the same time to the interest of the state on one side against the citizen on the other in much of the litigation in the courts, he asserted: “You cannot have the state exercising intrusive control over the lawyers who are acting for the other side.”

Lord McCluskey has three heroes in the form of lawyers who challenged the system – Abraham Lincoln, Mahatma Gandhi and Nelson Mandela. At Westminster, he pointed out, in the wake of recent terrorist attacks the government has introduced many measures that restrict the laws underpinning our traditional liberties. “It is not for me to criticise those here today – though many see certain of these proposals as making dangerous inroads into the rule of law.

“However we in Scotland should not, without the justification of an imminent terrorist threat, be rushing into ill-considered, badly evidenced, misconceived legislation which seriously threatens the constitutional independence of the legal system by bringing the judiciary and the legal profession under an unprecedented degree of government control.”

“It would be a disgrace to the whole idea of devolution”, he concluded, “if the threat to independence comes from our own government. It won’t work, and it will be destructive of systems built up over a long time.

“We can only hope that our legislators will have the wisdom and the courage to challenge these proposals.”

Keynote address

Sir David Edward

Judges’ dismay

The professional bodies are not perfect, but people should trust and support rather than denigrate them. So Professor Sir David Edward, retired judge of the European Court of Justice, summed up his address, posing the question, “We should do things together – isn’t that what Holyrood was supposed to be about?”

While not ignoring the proposals for professional regulation at Scottish and UK level (driven by an obsession with competition, he said, and they ignore the public service obligation of the profession), Sir David devoted the majority of his paper to the proposals regarding judicial independence. These, he said, had aroused “extreme concern among the judiciary, and on one point positive dismay”.

Why? “What we find is a slavish imitation of English innovations.” In relation to the judiciary, these totally ignored the context in which the new administrative arrangements came into being: following the proposed abolition of the office of Lord Chancellor, a “strenuously worked-out concordat” was arrived at between the Secretary of State for Constitutional Affairs and the Lord Chief Justice. While that judge, he continued, played a central role, he was only one of a number of leaders of branches of the English judiciary along with the Lord Chancellor and Vice Chancellor, the Master of the Rolls and the President of the Family Division. In addition, he had never been a leading exponent of the law like the Lord President in Scotland, but only one of many in his jurisdiction, and he was “not a parallel well adapted to Scotland”.

Sir David had personally met a German lawyer with experience of the pressures put on the profession under the Nazi regime. “It couldn’t happen here”, he conceded – “well, not in that form.” And he recounted lunching only last year with two judges from the USA, who admitted that the main problem facing their system is the threat to independence. Envious of the European Court practice of issuing a single judgment, they said they found it difficult to express themselves without threat of retaliation.

Coming closer to home, Sir David followed this with a quote from the previous day’s news: “Reid warns judges not to block deportations”. In France, he continued, it is not possible to move a judge against his or her will, to avoid it being used as a way of bringing pressure to bear. But what was proposed for Scotland? The possibility of sheriffs being transferred. “The Executive has shown itself unwilling to consider, far less profit from, the experience of other countries. In Ontario they have tried a unified system and are dismantling it. In Ireland there is a completely different system with built-in checks and balances. Various countries in Europe offer parallels which we could adopt or which illustrate dangers to avoid.”

And turning once again to the profession, Sir David suggested that consumers themselves want a profession that is properly trained and disciplined: the lawyer’s role was to do for the client what the client would do if they had the experience, the training and the time, and any threat to the lawyer’s independence was ultimately a threat to the client’s independence. But the lawyer was also independent of the client, holding duties to the court and others, and had to strike a balance.

Recalling the Executive’s promotion of Scotland as “the best small country in the world”, Sir David reminded us that its identity had survived in its legal system. Quoting Sir Walter Scott in 1806, who was teased by friends for denouncing a fashion at the time for adopting English forms and practices, he responded: “’Tis no laughing matter – little by little you will destroy and undermine until nothing of what makes Scotland Scotland will remain.”

From the panel session

Duncan Hamilton (advocate and former MSP): Lord McCluskey is right about the systemic failure of the parliament. The committee system has failed because of the short timescales. The committees were meant to have time to investigate legislation, but they never have the time.

Gerry Brown, Law Society of Scotland Council member: I have often given evidence to parliamentary committees. I agree that consultation is often just a fiction.

Roy Martin QC, Dean of Faculty: The committees are simply not acting as a check on the possible abuse of power by the Executive.

Alistair Bonnington (BBC solicitor): I am enormously concerned at the “ignorance of the jealous”. Independence is vital for the BBC, and vital for the profession. Any attack on it must be resisted forcefully.

Jane Irvine, Scottish Legal Services Ombudsman: To the public, the legal profession is just another service and they must have a means of redress.

All current systems are flawed – in relation to the lawyers complained against also. The bill does provide a means for answering complaints in a much more proportional manner than at present.

Susan McPhee (Citizens Advice Scotland): Are clients on legal aid more likely to complain? CAS does similar work but gets a very low level of complaints.

Gerry Brown (responding): Legal aid work does not produce more complaints but the issue is the consequences. With “polluter pays”, civil legal aid will be potentially uneconomic as we can’t increase our fees.