Law in Scotland 2015 - Leading legal Excellence

The In-house community joined with our colleagues in private practice and from other jurisdictions on 2 October 2015 for the Law in Scotland Conference. This year the theme was broadly on the rule of law, with specific stream sessions designed to cater to all sectors of the profession.

After a welcome from the Chair Roy Sheppard, the President, Christine McLintock, kicked off the day speaking about the Society’s Smartcard project, and how this is providing a technological advantage to the Scottish profession. She noted that she was struck by how there were common ethical values across the profession and noted that the content for today’s conference had been developed by a content group representing colleagues from all sectors from the legal profession.

Lord Hodge, Justice of the Supreme Court, and one of two Scottish justices sitting in that court then spoke on the role of advocates in presenting cases before the Supreme Court. He advised providing clear statements of the case and the legal points in authorities which is very well received by the justices. He recommended care is taken in preparing court documents to avoid wasting time, and that as the justices now use laptops as well as paper copies of the authorities cited, he recommended marking up the electronic pagination to assist those using laptops.  Engaging with the justices appropriately, and watching carefully to see how your case is being taken on board, is helpful as is being upfront with the justices on how you wish the case to be disposed of.

Lord Hodge explained how written submissions are a vital part of cases now, and should be supplemented by oral submissions, so that oral submissions should not be a restatement of the written submission. Once your opponents have made their submissions, there is a short period for replying to those and if new point arises then it is possible to ask to submit additional written submissions. He still felt that oral advocacy was still critical to the process, but this had to be balanced against the importance of the written submissions.

The next session was from a choice of streamed sessions: Devolution in UK – Constitutional Crossroads, by Professor Sir Jeffrey Jowell QC, the Director of the Bingham Centre for Rule of Law; Disruptive Technologies in Law: Artificial Intelligence or Intelligence Amplification?, by Orlando Conetta, a legal solutions architect at Pinsent Masons LLP; If Everyone is a Full Service Law Firm or Specialist Law Firm – how do you differentiate yourself?, speaker Alan Mackie, of Sandler Training; and NewLaw Business Models, speaker Mike Polson, Managing Partner of Ashurst.

The session attended by the writer, was Devolution in the UK - Constitutional Crossroads. Professor Sir Jeffrey Jowell spoke about a report prepared by the Bingham Centre for the Rule of Law, prepared by a panel of solicitors and academics. He noted that the central finding of the report, was that there is a lack of coherence and lack of understanding on arrangements between the UK and the devolved governments. The findings suggested consideration of a written constitution preceded by a constitutional convention.

He pointed out that there is an unwillingness to treat with federalisation but there are lots of different models as well as there being different models of unitary states.  He noted that there is one definition of federalism, which is where there are five features, the first one being that there are two tiers of government acting directly with the other, a written constitution which cannot be changed unilaterally, representation of devolved authority at the centre – that is not just in the equivalent of the House of Commons but in the upper house. This provides the various nations within the federal state with one voice in the centre and allows representation at that level. The next feature of federalism is that there is a central authority to resolve dispute such as a constitutional court or the Supreme Court which exists here. A fifth feature was that there is a mechanism for cooperation, which he felt that was lacking in the UK.

He noted that the Smith Commission has recommended that the Scottish Parliament should be recognised as permanent but how can that be done? If it is done by an Act of the UK Parliament, a later parliament could overrule this. The report suggests having a convention setting out shared values such as democracy, rights, the rule of law, social solidarity, and sharing risks on resources. There could be a common framework for defence, and an economic framework but individuality could be highlighted with an ability to have specific local arrangements. In addition, it suggests that the panel in the Supreme Court should be increased to include additional justices from Scotland, Wales and Northern Ireland to sit in specific cases, noting that Scottish justices do already sit in the Supreme Court. Professor Sir Jeffrey Jowell suggested that the constitution of principles of openness, scrutiny and transparency should apply to the arrangements between separate parts of the UK suggesting a single minister sitting in Cabinet for the union/UK and three ministers for Scotland, Wales and Northern Ireland.

After a break for tea, coffee and networking, the attendees then heard from Professor Sir Jeffrey Jowell as a plenary session. This time he spoke on the rule of law abroad.

His view was that the rule of law historically has not been an easy thing. There are a number of rule of law sceptics at the moment - their view is that it is a westernised concept for developed nations and it is imperialistic to apply it to others.

The Bingham Centre disagrees. Diverse countries are receptive to their work on the rule of law. He pointed out the example of Myanmar, and how receptive and Aung San Suu Kyi has been. She is looking at the possibility of setting up an impartial judiciary.

It appears that different countries have different concepts on what comprises rule of law. Professer Sir Jeffrey highlighted a few of the features Tom Bingham identified:

1. Legality – everyone is under and subject to the law.

2. Legal certainty.

3. Equality – the law applies equally to all.

4. Access to justice and rights – this is where it becomes an issue for some countries whether there is no access or there is not an impartial decision. This is an area where work does need to be done.

He pointed to the work of the Department for International Development, and an organisation called Rule of Law UK. He noted that this organisation is developing a database of experts in this area linking people up and information sharing.

Why is Scotland well placed to participate in this? He felt that Scotland has legal system with principles that are identical to those used in some other countries, so that we can use our experience in our system to help others. He pointed to the example of Equatorial New Guinea and South Africa. He thought that in saying that the rule of law is for westernised countries but not for others is patronising.

The Bingham Centre can provide different models, think about local customs and what a particular country is like. The rule of law encourages investment, it can encourage employment and shifts the balance of power and accountability.

Following lunch, and the In-house Lawyers' Group annual general meeting, we moved back to the conference proper.

Karl Chapman, Chief Executive of Riverview Law, spoke on the two new professional services market, noting that resistance is futile!

Then a further set of streamed sessions took place. This time the choice was between Build Your Reputation…and they will come, speaker Roy Sheppard; The Gender Pay Gap Within the Legal Profession, with speakers Annemarie O’Donnell, Chief Executive of Glasgow City Council, Professor Lesley Sawers, Pro Vice Chancellor Business Innovation and Enterprise and Vice Principal Glagow Caledonian University, and Mandy Laurie, a partner at Burness Paull LLP in employment.

Two other sessions were the Land Registration Act: What It Will Mean in Practical Terms for Businesses, speaker Frances Rooney, of Harper MacLeod, and the Rule of Law in Administrative Justice: Absence of Appeal, Monetary Penalties and Other Current Issues, which the writer attended. The speakers, Rory MacPherson, partner at Thomsons Scotland and Professor Michael Adler, Honorary Fellow, the School of Social and Political Science at Edinburgh University, spoke about where they felt that changes to the benefit system may not comply with the rule of law, and what they felt the effects of this had been.

Moving on to a further streamed session, the choices were Brexit and What It Would Mean in Practical Terms for Business, the speakers being Keith Ruddock General Counsel Weir Group, Charles Livingston, partner in Brodies Solicitors, and Professor David Bell, Professor of Economics, University of Stirling; Collaborative Networks: Important for Buyers and Sellers, speaker Anne MacDonald, partner of Harper MacLeod LLP, Patrick McGuire, partner of Thomson Solicitors and Solicitor Advocates, and David Sanders, Director of Marketing, Maclay Murray and Spens LLP; How Analytics Can Improve the Practice of Law, speaker Karl Mullens, Director of Assimil8 Limited; and How Independent Firms Can Thrive in the Age of the Client, speaker John Whittle, Market Development Director of LexisNexis.

Choosing the session on Brexit, Keith Ruddick and Charles Livingston ran through what the effects could be if the UK chose to exit from the European Union (EU).  Charles Livingston pointed out that it would depend on what the UK was going leave from. He pointed out that there are many treaties and unions in Europe, noting that some may affect the UK more than others. He noted that directly effective EU law might immediately give flexibility for the UK, but noted that there were other areas where EU law was directly incorporated into domestic law, such as the working time regulations. Laws such as this would remain in effect in the UK, but they could be changed more easily.

Charles recommended knowing the effects and opportunities for your clients, what are they exposed to and what are their sectors risks in relation to any exit. There could be opportunities for a law firm, where the clients may rely on you or others for EU law advice. It may be that firms will be able to develop contacts outwith the UK who will want to take advice from them.

David Bell spoke on the economic consequences of BREXIT.  He felt that there might be issues in relation to the area of research and development. The EU currently has a fund for this, and currently the UK receives 15% of that. What will happen to the loss of that funding? It was noted that there would be consequences for trade with Ireland – the UK is a major trading partner. Further potential change is that a BREXIT might trigger a further independence referendum, with an independent Scotland staying in the EU being affected as much as Ireland. He did note that Europe is declining as a trading partner for the UK, noting that other markets are now more important.

He then moved onto the final session for the day, The Gold Mine Effect, presented by Rasmus Ankersen. He explained that this covers driving talent, encouraging excellence, and finding talent that whispers rather than shouts.

In his view, there is an outcome bias: we assume that good results always come from good decisions. He notes that when a company is failing you ask questions but you don’t ask questions when they are successful – should we? He thinks that yes we should because we need to know whether it is luck that is giving these results or it is something else. He cited the example of a UK football team which had a very successful season, followed by less success. Questions were not asked while they were successful, so that it was not known that their success was a result of a a very unusual set of results which were not easily replicated.

He feels that it is important to challenge accepted ways of thinking, and decisions.  His first lesson is if it isn’t broke then consider breaking it because you should drive change before it is needed. If change becomes a necessity then it’s probably too late.

He also spoke on how he felt there was a talent spotting problem – we look at what people are and not what they become.  He agreed that spotting talent is difficult - it is easy to overlook 'the talent that whispers'. He noted that talent that shouts cannot be overlooked. He cited the example of Steve Francis, the coach of the best track team in Jamaica. On first sight, the track the team lacks many of the facilities you might expect at a world-class track, but Steve Francis takes the view that isn’t necessary to allow people to express their talents. In conclusion, Rasmus recommended always taking the context into account, and to remember what you see is not necessarily what you get.

At the end of a very interesting and challenging programme, the members then moved on to the presentation of a drinks reception to celebrate the 50th Anniversary of the Scottish Law Commission, and to present the winner of the ILG Rising Star Award winner with their trophy.