We are deeply uneasy about why the Scottish government feels that it is desirable, appropriate or necessary to confer upon Scottish ministers the power to impose directions and other measures upon regulators, including the Law Society of Scotland. These mechanisms of executive control are not to be found in those other states within the Western European liberal democracies. Were this bill to be enacted it would fundamentally compromise and undermine our ability in Scotland to champion the independence of the judiciary and legal professions in other countries such as Belarus, where the government has repeatedly interfered with the rights and independence of lawyers there.

The International Bar Association’s 2016 report entitled 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” and that “the independence of the judiciary and the legal profession is a fundamental pillar” of a system of checks and balances against potential threats emanating from the abuse of power. The IBA emphasizes that this independence is not to be equated 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.”

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 bill empowers the state to interfere in the regulation of legal professions it must be opposed. In jeopardising the independence of the legal profession the bill undermines the principle of separation of powers and the rule of law.

Insofar as it requires the government to “consult” the lord president about regulatory proposals, 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.

As regards the Scottish Legal Complaints Commission the bill fails to address the fact that the “polluter pays” principle is absent from the current complaints process. For years we have been proposing that complainers pay a fee of £60, refundable on success, as happens now in South Australia. The commissioner there explains that “The introduction of the fee to lodge a complaint was intended to ensure that a complainant is serious about making a complaint.”

Also, he considered that “a not insignificant amount of resources of my Office are applied to dealing with what are ultimately unproved or unmeritorious allegation about legal practitioners” and that this “obviously impacts on the time it takes to determine genuine and reasonable complaints and investigations”.

On the other hand, the Scottish complainer faces no financial impact whatsoever, regardless of whether he is an opportunist or not, to the detriment of genuine claimants. The bill provides that appeals against SLCC decisions be made not to the Court of Session but to a “Commission Review Body”of the SLCC itself. In effect, the commission would be marking its own homework. An appeal should be submitted to the sheriff court, where there is true independence and where there is recognition and application of polluter pays.

There must also be independent oversight in relation to the SLCC’ annual budget. We have proposed that Audit Scotland should approve the draft annual budget. Proper accountability is incompatible with the SLCC scrutinising itself.

We are very concerned about the bill’s provisions concerning Alternative Business Structures. We would urge solicitors to think long and hard about agreeing to allow their practices to become such a structure, with external control and especially in view of the totally inadequate “Suitability Test” This test was set out in the 2010 Act and may possibly have been sufficient when the minimum percentage that a solicitor owned was 51 per cent but not when the minimum is only 10 per cent. We have huge concerns over the possibility of money laundering and criminal control of this ABS model.

Read the full response here