First class

The advent of devolution has opened a “Pandora’s box”¹ of opportunities for Scots lawyers. New jobs have been created in the Scottish Parliament and Government. There has been an increase in purely Scottish legislative drafting, review and reform. Even the judiciary has been involved through use of the review jurisdiction over the competence of the new Parliament. The work of the Parliament itself is clearly at the heart of the devolution experience, and lawyers are at the heart of the Parliament.

However at this junction, 10 years after the opening of the new Scottish Parliament in 1999 it is important to take stock. While devolved power is still relatively new to Scotland, it is certain that Scotland’s legal and political landscape has changed in ways which were not envisaged in the early days of Donald Dewar’s pioneering first parliament. It is important to assess the work of the Parliament, and the lawyers associated with it, and how the Parliament can achieve continued success. Successes to date include far reaching law reform, imaginative responses to constitutional change and a broad range of new legislation. Challenges have arisen in areas such as the role of the Lord Advocate and to increase Parliament’s legislative competence. Additionally legal education, the role of the judiciary and the place of Scotland within the UK are important issues for public law in Scotland, today and in the future.

It has been suggested that lawyers in Scotland have an “increasingly political”² role. This may be because lawyers in Scotland are now working on legislative drafting which formerly took place in London. Thus lawyers will have policy and political objectives firmly in mind when working in this area. Conversely, but equally important in terms of the relationship between law and politics in Holyrood, is the fact that many MSPs are, or have been, practising lawyers. While many of Scotland’s politicians will continue to come from a legal background, the real area of growth for lawyers in the Scottish Parliament will be the public lawyers working behind the scenes of the Parliament and other institutions. It is in this context, rather than as politicians, that the potential future contribution of lawyers to the Scottish Parliament should be examined.

The actions of the Scottish Parliament since 1999 have been scrutinised by lawyers and laymen alike. The template provided by the Consultative Steering Group has been achieved with varying degrees of consistency.³ However the Parliament has been applauded for the broad scope and sheer amount of legislation it has produced in its first decade.⁴ It was envisaged by the CSG that the Parliament would not pass significant amounts of legislation – estimating “10-12 bills each year”⁵. In fact the Parliament passed 127 bills in its first two sessions to 2007 – an average of 16 per year. Scottish subordinate legislation has also increased – 453 Scottish Statutory Instruments were passed in 2000; this rose to 660 by 2005.⁶ Indeed since 1999 there has been an “explosion in purely Scottish law making”,⁷ a firm quantitative indication of a successful and functional legislature.

The Parliament has also exceeded expectations about the type of legislation passed.⁸ Instead of law made by English lawyers amended for a Scottish context, we now see complex and pioneering legislation made by Scottish lawyers, and designed around Scotland’s legal and social culture. Legislation passed in Scotland such as the Abolition of Feudal Tenure (Scotland) Act 2000 and the Family Law (Scotland) Act 2006 has changed the substance of Scots law. Acts such as the Smoking, Health and Social Care Act 2005 have been introduced with high publicity and a noticeable effect on daily life in Scotland. Finally the Graduate Endowment Abolition (Scotland) Act 2008 has reduced financial pressures on Scotland’s students. This last is just one example of legislation being used to achieve policy aims which differ substantially to policy applied in England. Importantly these reforming Acts have all been passed by different administrations, showing that Scotland’s new found legislative courage is not a political force. Rather it is seen as the effect of devolution on a generation of Scots public lawyers who are now able to work effectively within their own domestic system to develop and improve the law.

Commentators pre-1999 demanded “a parliament within Scotland which is able to meet the demands of its own society and time”.⁹ From an assessment of the Acts passed by the Parliament, it seems this has been achieved. Lawyers have played a large part in this by advising and drafting legislation. If this contribution continues in future legislative programmes, the governmental lawyers working in Scotland today will surely expand upon these early successes.

Another perceived success of the Scottish Parliament has been to take Scottish politics closer to the Scottish people; to allow decisions to be made on Scottish issues in Scotland. This was the main argument for devolution, applying the principle of subsidiarity to UK law making. However it cannot be said that the Scottish electorate has so far embraced this democratic opportunity – turnout is significantly lower for Scottish parliamentary elections than for UK general elections.¹⁰

For Scotland’s Parliament to truly matter to Scottish people, its work must have a real impact on life in Scotland. A legal response to this would be to say that the Scottish Executive and Scottish Parliament must commit to a programme of law reform and consolidation through statute law. Family law has been significantly modernised and updated,¹¹ and the Scottish system is now seen as a model for 21st century family law.¹² It is important to note that this reform was based upon Scottish Law Commission proposals from 1989.¹³ This shows the importance of the work of lawyers both in the Scottish Parliament and in independent bodies in formulating law reform and legislative proposals.

In the coming years this pattern of reform should continue as far as possible across the spectrum of Scots law. A devolved parliament with competence over the legal system affords opportunities to consider steps such as codification of Scots criminal law, or the formation of a written constitution for Scotland. Lawyers will have input in any reform program, for example via the Scottish Law Commission.¹⁴ It is vital that lawyers and politicians work with the Scottish public, business community and private legal practitioners, prioritising reform of high profile topics. This will improve the public perception of the success of the Scottish Parliament, and raise the profile of the legal professionals in Scotland whose work lies behind such reform.

The law officers of the Scottish Parliament are perhaps the best known lawyers working within the Scottish Parliament. In recent years these positions have become controversial, despite recent attempts by the SNP to de-politicise the roles by removing the custom for law officers to attend meetings of the Scottish Cabinet. The position of the Lord Advocate as head of the prosecution service and Government legal adviser remains especially heavily criticised. Continuing challenges to the role of Lord Advocate made using devolution issues suggest that this issue has caught public imagination, and further alteration to the Lord Advocate’s role and remit seems inevitable.

The Commission on Scottish Devolution took evidence from the Scottish judiciary¹⁵ which questioned whether the dual role of the Lord Advocate is appropriate and lawful. The fact that this issue has been raised by senior figures within the Scottish legal community shows that there is concern over the future of this historic legal role in a new devolved Scotland. It seems inevitable that the role of the Law Officers will be subject to further change in the coming years. So, just as the Commission notes that the devolution settlement will not “remain static”,¹⁶ neither will the role of lawyers remain unaltered. The means by which law officers and lawyers in general contribute to the work of the Scottish Parliament seems on the cusp of structural and substantive changes.

Devolution has led to changes in both the position of Scots lawyers and the role of Scotland in the UK’s constitution.17 It has even been said that devolution has ‘inaugurated a new Scottish legal system’.¹⁸ While Scotland has maintained an independent legal system and judiciary since the Act of Union in 1707, it is true that with devolution and a separate Scottish parliamentary identity, the role of Scotland’s lawyers is even more distinguishable from their English counterparts.

The legal system is protectionist in its outlook, aiming to preserve Scotland’s strong legal heritage and identity for example by requiring specifically Scottish legal training for Scots lawyers. This means that for the continued success of the Parliament, not only must qualified lawyers continue to work to a high standard, but Scotland’s law schools must remain committed to providing a uniquely Scottish legal education.

At the same time legal institutions should not be afraid to look beyond Scotland’s borders for ideas and practices which can improve efficiency and effectiveness in all areas of legal practice. In this way even legal academics can contribute to the success of Scottish public law and the Scottish Parliament.

Following devolution, Scotland is governed by a Parliament which has a restricted legislative competence and is subject to a “strong”¹⁹ judicial review.²⁰ Since the first session of the Scottish Parliament there has been noticeable involvement of the courts in assessing this competence and considering legal challenges from the public and pressure groups.²¹ Lawyers and the judiciary are therefore inextricably linked to the exercise of the Parliament’s legislative powers, and Scottish legislation is rigorously scrutinised. Despite the prominence given to judicial review of Acts of the Scottish Parliament in both legal commentary and mainstream media, the fact remains that there have been relatively few challenges to Scottish legislation, and none have been successful.

It was initially feared that subjecting Acts of Parliament to judicial review could lead to a non-democratic concentration of power in the hands of the unelected judiciary. This has not materialised. Concerns are still expressed that Scottish democracy “will be harmed by inappropriate, invasive scrutiny and interference by the unelected judges”.²² However judicial scrutiny to date has been appropriate: thorough but respectful of the powers of Parliament. It can be argued that the vulnerability of legislation to judicial review has a positive effect on Scottish statute law, as drafters know their work will be scrutinised and challenged if it does not respect the limits on Parliament’s powers.

In the coming years it is likely that more legal challenges will be made to Acts of the Scottish Parliament, particularly in the case of any moves towards independence.²³ Lawyers will have a vital role on both sides of future review petitions. They will act as counsel for the challenging party, as representatives of the ministers defending the legislation, as the drafters and advisers behind the legislation, and also in sitting in judgment as to the nature of the act as intra or ultra vires. Therefore lawyers can expect to have a growing role in ensuring the legality and appropriate scrutiny of Acts of the Scottish Parliament, a function which is vital to the parliament’s future success.

Looking to the future, it is clear that the Scottish Parliament and the lawyers who contribute to its work will be looking to build upon the foundations they have laid over the past decade. Successes such as legal reform and strong legislative programmes should continue, likewise the ongoing reassessment of the proper role of lawyers and the judiciary under devolution. Challenges will arise in the guise of devolution issues, judicial review petitions and calls for a remodelling of the devolution settlement.

However in their work to date, public lawyers and all other individuals who have contributed to the successes of the first decade of a devolved Scotland have much to be proud of. It is vital that momentum is not lost and that the roles of the Scottish Parliament and Scottish lawyers in all sectors are allowed to develop and mature during the next decade, and more, of devolution.

Clare McKinlay (21), from Milngavie, recently finished her third year studying law at the University of Glasgow and on an Erasmus exchange in the Netherlands.

TWIN CELEBRATIONS

The Law Society of Scotland and the Scottish Parliament joined forces to run the essay competition, which marked the 60th anniversary of the Society and the 10th anniversary of the Parliament.
The aim was to encourage law students in the final and penultimate years of the LLB at Scotland’s LLB providing universities to think about the input of Scotland’s 10,000 solicitors in shaping the country’s laws.
In addition to having her essay published in the Journal, the winner receives a cash prize of £500 and a three week summer placement in the Parliament’s legal department.

1. James G Kellas, “Lawyers in Contemporary Scottish Politics: a new Dundas Depotism?”, in L Farmer and Scott Veitch (eds), The State of Scots Law: Law and Government after the devolution settlement (Butterworths, Edinburgh, 2001), p27.
   
2. Ibid, p29.
   
3. Norman Bonney, “The Settled Will of the Scottish People: What is Next for Scotland’s Parliaments?” The Political Quarterly 78 (2).
   
4. Alan Page, “One Legal System, Two Legislatures: Scottish Law-Making After Devolution”, in McHarg and Mullen (eds), Public Law in Scotland (Avizandum, Edinburgh, 2006), p124.
   
5. “Shaping Scotland’s Parliament, Report of the Consultative Steering Group on the Scottish Parliament” (1998), Section 3.5.
   
6. Alan Page, “One Legal System, Two Legislatures: Scottish Law-Making After Devolution” in McHarg and Mullen (eds), Public Law in Scotland, p124.
   
7. Ibid, p129.
   
8. See Robin M. White and Ian D Willock, The Scottish Legal System (Tottel, West Sussex, 2007), p402.
   
9. Gordon Jackson QC, “Devolution and the Scottish Legal Institutions”, in T St J N Bates (ed), Devolution to Scotland – The legal aspect (T&T Clark, Edinburgh, 1997).
   
10. 59% turnout in UK general election 2005; 51.8% turnout in Scottish Parliament election in 2007.
    
11. Family Law (Scotland) Act 2006.
    
12. See http://business.timesonline.co.uk/ tol/business/law/article519743.ece, as quoted in Lord Hope of Craighead, “Do we still need a Scottish Law Commission?” Edin LR 2006 10 (1).
    
13. For report see:  http://www.scotlawcom. gov.uk/html/reports_1980-1989.html .
    
14. See Lord Hope of Craighead, “Do we still need a Scottish Law Commission?” Edin LR 2006 10 (1).
    
15. See http://www.commissionon scottishdevolution.org.uk/uploads/2008-10-20-judiciary-in-the-court-of-session.pdf .
    
16. Commission on Scottish Devolution, First Report, 2 December 2008, at para 5.5.
    
17. James G Kellas, “Lawyers in Contemporary Scottish Politics: a new Dundas Depotism?” in L Farmer and Scott Veitch (eds), The State of Scots Law: Law and Government after the devolution settlement, p29.
    
18. Ibid, p27.
    
19. Alan Page, “One Legal System, Two Legislatures: Scottish Law-Making After Devolution”, in McHarg and Mullen (eds), Public Law in Scotland, p113.
    
20. Ibid, p112.
    
21. E.g. Adams v Scottish Ministers 2004 SC 665; A v Scottish Ministers 2008 SLT 412.
    
22. Barry K Winetrobe “The Judge in the Scottish Parliament Chamber”, PL 2005, Spr, 3-12.
    
23. Commentary: “Devolution – the next phase”, The Political Quarterly 78 (3).