Judges "fundamentally opposed" to new regulation powers
Scottish Government proposals to remove aspects of the Court of Session’s oversight of the legal profession, and impose Government as a co-regulator along with the Lord President, are a threat to the independence of the legal profession and the judiciary, according to the country’s senior judges.
In a unanimous submission to the Holyrood committee scrutinising the Regulation of Legal Services (Scotland) Bill, the Court of Session judges say they are “fundamentally opposed” to bringing the legal profession under political control. “If the Bill is passed in its current form, Scotland will be viewed internationally as a country whose legal system is open to political abuse”, they state.
Three main areas of concern are highlighted by the judges in relation to the bill, the power of control being the first. As drafted, they argue, the bill “falls far short” of the stated policy objective of retaining and building on the current oversight role of the Lord President – which, contrary to what is stated in the Roberton report, means that the legal profession does not regulate itself. “Limited self-regulation by the professional bodies is controlled by the Lord President, as the ultimate regulator.”
Powers to the Government to change the professional obligations of lawyers, amend the Act after it is passed by Parliament, reassign the professional bodies to a different category of regulator, review the performance of, publicly censure or impose financial penalties or other requirements on regulators, and directly authorise and regulate legal businesses (with the agreement of the Lord President), are all objectionable forms of potential control.
Secondly, the Scottish Government would be able to interfere with the judiciary’s oversight of the legal profession, by introducing a requirement that category 1 regulators report not to the Lord President, but to the Scottish Parliament, and by removing the right to appeal to the Court of Session from a decision of the Scottish Legal Services Commission. The latter provision, the judges say, would “put the Commission above the law… Because of the constitutional role of the Court of Session in regulating the legal profession, it is unacceptable for the Scottish Government to propose ousting the court’s appellate jurisdiction to prevent the SLSC from acting unlawfully”.
It would also lead to increased delay and expense if intending appellants had to proceed by judicial review rather than direct appeal.
Thirdly, the proposed co-regulator arrangement would “give rise to a grave conflict of interest”. Ministers, the submission points out, were involved in 4,121 cases in the Scottish courts between 2018-19 and 2022-23, often high profile actions such as the Rangers and the gender recognition litigations.
“It is essential that the lawyers acting for and against the Government in such cases act independently; that they are not under the control of the Government and that they do not fear being subject to regulatory sanction if they win or lose a politically controversial case. The same applies to lawyers defending accused persons (whether ordinary members of the public or prominent citizens) against criminal prosecutions brought by the state.
“If the bill is enacted in its current form there will be a clear conflict of interest for the Scottish Government; the Scottish ministers will have the power to control the activities of lawyers acting for and against them.”
The judges conclude: “If the bill is amended to meet these concerns, it should form an acceptable foundation for updating the regulation of legal services in Scotland and providing for the protection of consumers and other users of legal services. As noted earlier, this is subject to ensuring that the Lord President receives adequate funding to exercise these additional and important functions.”