Douglas J. Cusine: Scottish government is becoming power mad

Douglas J. Cusine: Scottish government is becoming power mad

Neil Stevenson welcomes the Regulation of Legal Services (Scotland) Bill, but ignores or fails to notice that the Scottish government is proposing a legal services regulator to take control of the entire legal profession. That would include entry to it, standards of education, discipline within and expulsion from the entire profession. The Scottish government, indirectly, would control all that. Which profession will be next?

Lawyers recognise that sometimes they are not popular people – at least until someone needs one. Everyone charged with a crime is entitled to the services of a lawyer, but, lawyers are involved in other a types of work, which does not involve the courts.

At present, you become a lawyer by obtaining a law degree, or passing the professional examinations. You are answerable to the courts and your professional body for your conduct – not to the government, which has no control over who can become a lawyer, or over a lawyer’s conduct – an independence recognised throughout the free world. The International Bar Association and the European Bar Association vigorously support this concept and put pressure on those few countries which do not support it. Countries which controlled or still control the legal profession include Nazi Germany, Italy under Mussolini, Putin’s Russia and North Korea.

Why is the independence of lawyers essential? In a free society, all citizens must be able to challenge the authority of, e.g. the police (say, on the ground of ‘mistaken identity’), of local authorities (say, for ignoring planning laws) and government itself. These public bodies frequently resent their decisions being challenged but are unable to influence independent lawyers whose professional duty is to the client.

The Scottish government wants to change all that by controlling who can become a lawyer and also wants the power to discipline lawyers which would include power to suspend a lawyer, or have a lawyer, whom they don’t like, struck off. This new body will, so the government says, be independent. How can that be when the government will decide who the members will be? If the new body comes into being, lawyers will be answerable to and controlled by the government and independence of lawyers in Scotland will become a thing of the past. But judges will be unaffected, or will they? The new body will be able to decide who becomes a lawyer and judges are appointed from among lawyers. Once they are appointed, they might want promotion. It would be too easy for the new body to seek the government’s view, or might even be required to do so, and so deny the promotion.

Sheila Webster, president of the Law Society, laments the fact that the Scottish government has failed to respond to legitimate concerns. No surprise there. The members of the Scottish government may hope that by not answering questions, the questioner will go away, or what may be more likely is that they do not understand the issues being raised, or even more likely, they simply want “power”. This bill requires urgent re-consideration.

Douglas J. Cusine is a retired sheriff and a respected author of articles and books on legal and medico-legal topics.

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