Andrew Stevenson: Keep the state out of Scotland’s legal professions

Andrew Stevenson: Keep the state out of Scotland's legal professions

Andrew Stevenson

Scotland should recall recent history before approving a law that would make dictators blush, writes Andrew Stevenson.

Last month the Scottish Law Agents’ Society gave evidence to the Equalities, Human Rights and Civil Justice Committee of the Scottish Parliament. We opposed the proposal to allow government ministerial control of lawyers in terms of the Regulation of Legal Services (Scotland) Bill.

The world is divided into countries where the state controls the legal profession and those in which it does not, and it is better to be in the latter. Should Scotland enter the former camp, along with bedfellows such as Turkmenistan, the bill is unprecedented, at least as regards solicitors and advocates.

However, there was a similar inroad around 15 years ago, ultimately a barren road to nowhere, in relation to messengers-at-arms and sheriff officers. These are the officials who one instructs to enforce judgments issued by the Court of Session and Sheriff Court respectively and to serve writs. They are officers of the court, appointed by the court rather than by the government.

Scotland has always had officers of the court, some of which are of ancient origin. The Institutional writer Lord Bankton, writing in the 1750s, refers to “mairs” as the predecessors of messengers and to other “retainers to courts, or attendants thereon” such as macers. Solicitors and advocates are also encompassed by the term officers of court.

Not only are messengers-at-arms and sheriff officers appointed by the courts, they are regulated by them, specifically by the Court of Session and by Act of Sederunt.

This long-established practice was enshrined in the Debtors (Scotland) Act 1987 which also established the Advisory Council on Messengers-at-Arms and Sheriff Officers. Chaired by a Court of Session judge, the Council continues to sit. Of its current membership of 10, only one is appointed by the Scottish Government. Virtually all the others are members of the judiciary (appointed by the monarch) or Officers of Court.

It has worked well ever since its inception. Nevertheless, in 2004 when Labour was the governing party at Holyrood the Scottish Executive (as it was then known) consulted over whether the state should regulate these officers. The views then expressed in opposition mirrored much of the current discussion over the Regulation of Legal Services Bill insofar as this legislation would wrench from the court and give to the Scottish government the powers to regulate solicitors and advocates.

In 2004 the Executive decided to transfer the courts’ role to a new statutory body. The Bankruptcy and Diligence (Scotland) Act 2007 created the Scottish Civil Enforcement Commission. Messengers-at-arms and sheriff officers were to be replaced by “judicial officers” (the draft bill had deployed the forbidding term “court enforcement officers”) although this never occurred. Significantly, the Scottish ministers were given the power to make regulations concerning the structure and procedures of the SCEC.

This is another parallel with the current bill insofar as the latter would give the government the power to interfere with legal regulators such as the Law Society of Scotland.

The ugly-sounding SCEC never saw the light of day. Instead, it lingered in unhappy limbo for several years until killed off by the Public Services Reform (Scotland) Act 2010.

The Scottish Civil Enforcement Commission was misconceived and a waste of time, effort and money. Currently, an excellent job is done of regulating messengers-at-arms and sheriff officers, and from a constitutional perspective there ought to be no interference by the executive. The same logic applies a fortiori to the regulation of lawyers, those other officers of the court.

Andrew Stevenson is secretary of the Scottish Law Agents Society. This article first appeared in The Scotsman.

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