“March on Murrayfield”: Anderson replies

I am grateful to Alan Campbell for his response to “March on Murrayfield”.

The quote from my notes taken at the excellent RFPG debate was not a little selective. It was completely so! Given my views on the need for a transparently independent legal profession and given also the very strong D&W push to allow external investment in Scottish law firms, I believe the “quote” was entirely apposite.

D&W can of course presently compete on a level playing field with other solicitors in Scotland. Should D&W wish to compete more effectively with providers of legal services in England & Wales then it is of course open to them to seek be regulated under the regime which prevails in that jurisdiction. In that scenario I do not believe the legal profession in Scotland will suffer irreparable damage and stratify. The economic impact of not allowing external ownership of law firms in Scotland would be neutral.

In the event that external ownership is not permitted by the Scottish Parliament, presumably D&W would still wish to remain in Scotland as solicitors and carry on work which only Scottish solicitors can do. It seems to me that the real threat to Scotland and its legal system and profession would be to allow external ownership of law firms here. There would be a real danger of non-lawyer owned organisations moving up from England and taking on the most profitable work. This would greatly damage real access to justice for people in Scotland, and indeed could well damage Scots law.

I believe that there would be a very positive impact on the reputation of our legal system if we are able to demonstrate independence by non-external ownership. I believe that a genuinely independent legal profession in Scotland will flourish. I can be persuaded that minority non-lawyer internal investment would assist Scottish firms in growing, innovating and competing in wider markets without compromising independence.

Of course solicitors in Scotland require to run their businesses profitably. They ultimately go bust otherwise. The point is that in Scotland both the business and the solicitor(s) in it are independent. External ownership will in my view remove such independence. My clear impression from David Hardie’s talk at the WS debate, and from his response to some questions/points which I raised during the discussion, was that David’s focus was on the business/competition/level playing field aspects of providing legal services rather than on the solicitor as an officer of the court. My point was of course that as an officer of the court the solicitor’s independence is similar in nature to that of the independence of the judiciary.

In my view it is essential that judges and law firms are seen to be independent. Judges, advocates and solicitors are all part of the same legal profession. As officers of the court they are essentially part of the same family. As the old adage states: “Justice must not only be done but be seen to be done”. Judges would clearly not be seen to be acting with independence in issuing judgments in circumstances where they are employed by a venture capital company. Similarly, solicitors could not be seen to be acting with independence in giving advice to the public if they are employed by an investment company.

In my view the hallmark of a free democratic society which wholeheartedly subscribes to the rule of law is the existence of a transparently independent judiciary and legal profession. I understand and respect part of Alan’s argument as a statement of pure logic. But I do not believe the independence of the legal profession is as simple as that.