The International Bar Association’s 2016 report on The Independence of the Legal Profession notes that a “strong, democratic society that observes and upholds the rule of law cannot survive by relying solely on the good faith of those who govern its political institutions. The effective protection of society from potential threats emanating from the abuse of power and the circumvention of basic democratic principles rests on, inter alia, the existence of a system of checks and balances. The independence of the judiciary and the legal profession is a fundamental pillar of this system.”

Significantly, the IBA mentions judges and lawyers in the same sentence and emphasises that both must retain freedom from interference by the state.

Importantly, though, this independence is not to be equiparated with unaccountability, since; “Independence is not provided for the benefit or protection of judges or lawyers as such. Nor is it intended to shield them from being held accountable in the performance of their professional duties and to the general law. Instead, its purpose is the protection of the people, affording them an independent legal profession as the bulwark of a free and democratic society.”

These observations are of universal application. True, compared to surveillance states such as communist Hong Kong, Scotland is relatively enlightened, and yet it is not enough that we have to rely on the benevolence of the Scottish government. Insofar as the Legal Services Regulation (Scotland) Bill 2023 empowers the state to interfere in the regulation of legal professions it is a rambling medley of the banal and the alarming. Its good points – and there are a few – are largely overshadowed.

Andrew Stevenson is Secretary of the Scottish Law Agents Society

Solicitors and advocates are “officers of the court”, admitted to practice by the Court of Session, not by the government. This makes sense. Courts are politically neutral. They do not have an agenda of seeking to impose policies, quotas or performance targets on anyone or requiring solicitors to monitor or to collect data about their clients’ private, financial and personal details.

This Bill would jeopardise the independence of the legal professions and inflict more bureaucracy on lawyers indirectly and indirectly. Section 3 governs existing regulators, such as the Law Society of Scotland and sets out “regulatory objectives” for example that “a consumer should be treated fairly at all times.” Section 4 patronisingly sets out “professional principles” such as that “a person providing legal services should … maintain good standards of work”. Quite.

Section 5 allows the Scottish Ministers by regulation to “add, amend or remove a regulatory objective” or professional principle. The Government has to “consult” the Lord President, which does suggest that the drafters of this Bill may have had an inkling that the executive is coming perilously close to encroaching into the territory of the judiciary. In fact, the Bill repeatedly seeks to draw the Lord President into administrative collaboration with the Scottish Ministers, potentially blurring the separation of powers and the respective roles and spheres of the executive and the judiciary.

Section 20 provides for “measures open to the Scottish Ministers”, empowering them to set performance targets and directing action and imposing penalties. Sections 89 and 90 amount to carte blanche legislation, allowing politicians to make “any incidental, supplementary, consequential, transitional, transitory or saving provision”.

The Bill would facilitate a further administrative burden on businesses, but its enabling the government to infringe the independence of the legal professions should be a source of concern to everyone in Scotland who values the checks and balances protecting us against the over-zealous use of power and control by the executive.

Andrew Stevenson is Secretary, Scottish Law Agents Society

New Bill puts the independence of the legal professions in jeapordy - Andrew Stevenson