Judicial concern

Top judge warns of threat to legal independence

Law and legal services
The judiciary is concerned about its independence

Proposed legal reforms proposed by the Scottish Government are “constitutionally inept” and could threaten the independence of the judiciary, according to Scotland’s second most senior judge.

Lord Justice Clerk Lady Dorrian said the plans would require the Lord President — Scotland’s most senior judge — to act jointly with Scottish ministers, raising concerns over the rule of law.

The appearance of Lady Dorrian before the Scottish parliament’s equalities, human rights and civil justice committee was an indication of how serious the judiciary regarded the proposed changes in the Regulation of Legal Services (Scotland) Bill.

“Members of the judiciary rarely attend parliament to comment on proposed legislation,” she told MSPs. “The fact we are doing so merely underlines the extent of our concerns.”

Earlier, the Law Society of Scotland issued a statement saying the bill risked “seriously undermining the rule of the law and the independence of Scotland’s legal sector from the state”.

In her comments to MSPs, Lady Dorrian said was mainly concerned by the proposed removal of the Lord President and the Court of Session as the ultimate regulators of the profession, “and the constitutional threat to the independence of the judiciary and of the legal profession contained in some of the provisions”.

The Lord President’s role in regulating the profession must be “independent from government”, she said. By requiring the Lord President to act in “certain circumstances along with government” the bill was “constitutionally inept”.

She said: “Independence is not something that is created for the benefit of lawyers, it’s not there to shield them or make them unaccountable.

“It is designed to benefit the individual consumer and make sure someone who may end up having to sue the government may be sure of obtaining a lawyer who will be absolutely fearless in the presentation of their case and entirely independent of any government influence.”

She noted that in the seven years to this month there had been 4,946 civil cases put before the courts involving the Scottish government which included the census, gender recognition and named person legislation.

Lady Dorrian said that individuals who wished to challenge government must have access to an independent lawyer of “their own choosing who is not going to be subject to any kind of government influence or risk of discipline.”

She acknowledged that Scottish ministers have recognised the importance of amending the bill “to address some of our concerns”, although the judiciary did “not have any idea” about the form of those amendments.

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