Lady Dorrian warns against ‘constitutionally inept’ Scottish government reforms

Underscoring the importance of the separation of powers, the judge told the Scottish Parliament’s Equalities, Human Rights and Civil Justice Committee, that the Regulation of Legal Services (Scotland) Bill was a “threat to the independence of the judiciary and of the legal profession” and that the Scottish government demonstrated “a lack of understanding of fundamental democratic principles”.

The profession is regulated by the Law Society of Scotland, the Faculty of Advocates and the Association of Construction Attorneys, under the supervision of the lord president. The bill would diminish his power by making the Scottish government his co-regulator.

Ministers claim that the bill would “provide a modern, forward-looking regulatory framework for Scotland that will best promote competition, innovation, and the public and consumer interest in an efficient, effective, and efficient legal sector”.

Lady Dorrian told the committee: “Members of the judiciary rarely attend Parliament to comment on proposed legislation.

“The fact we are doing so merely underlines the extent of our concerns.”

She added: “Our principle concerns relate to the 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 bill, she said, could enable Scottish ministers to “directly exercise power to regulate the profession and even set up an entirely new regulator”.

She told the committee: “There’s just a lack of understanding of fundamental democratic principles.”

She added: “It’s particularly important to recognise that independence is not something that’s created for the benefit of lawyers.

“It’s not there to shield them or to make them unaccountable, it’s designed to benefit the individual consumer, to make sure that someone who may end up having to sue the government may be sure of obtaining a lawyer who’ll be absolutely fearless in the presentation of their case, and entirely independent of any government influence.

“And it’s of particular importance if you think that in between April 2016 and November 2023, there have been 4,946 civil cases before the courts involving the government. Nearly 5,000 cases.

“And, of course, some of those are high-level litigations. There have been two litigations about the representation of public boards, one in relation to the census, a section 35 challenge, which is still undergoing at the moment, a reference to the Supreme Court in the independence referendum, litigation about the UNCRC, the named persons, loads of others.

“These are really high-level important matters. And it’s essential that individuals who want to challenge the government can do so through an independent lawyer of their own choosing who is not going to be subjected to any kind of government influence or risk of discipline.”