Lord Carloway reaffirms opposition to legal regulation bill

Lord Carloway

In a speech to open the new legal year, the Lord President, Lord Carloway, said that the Regulation of Legal Services (Scotland) Bill, as drafted, “gives rise to serious constitutional concerns about the rule of law and the separation of powers”.

The bill would make the Scottish government co-regulator of the legal profession alongside the lord president. It would also remove certain aspects of the Court of Session’s current oversight of legal professionals.

Dean of Faculty, Roddy Dunlop KC, has previously said that the risk here is that these changes would “open the way for ‘regulation’ to be used as a back door which the government of the day might use to control or influence independent legal professionals”.

Lord Carloway added: “It is a threat to the independence of the legal profession and the judiciary. If the bill is passed in its current form, Scotland will be viewed internationally as a country whose legal system is open to political interference. This will have serious adverse consequences.”

He warned: “The rights of clients, who are the ultimate consumers of legal services, to obtain legal advice, must be protected from interference by the government.

“The only way to ensure that lawyers will be able to stand up for the individual, whether a person or an institution, against the government of the day, is for the Lord President, and the Court of Session, to remain as the ultimate regulator of the legal profession.”

Scotland’s judges previously fended off incursions on their independence when the Scotland Bill was under consideration at Westminster.

The late Lord McCluskey opposed attempts to allow the executive to dismiss judges. Speaking in the House of Lords in November 1998, he said: “My amendments are concerned to try to continue to secure the independence of the judiciary, especially independence from the new executive, including the first minister.”

The lord advocate of the day, Lord Hardie, for the UK government, said that it was “unimaginable” that a first minister would try to remove a judge without taking advice.

Lord McCluskey rejoined: “These views fly in the face of all experience.”