Scotland’s top judge and lawyers have issued a furious response to Scottish government proposals to reform how legal services are regulated.
Ministers are consulting on changes which could see a new regulatory body set up to oversee the legal sector.
Lord Carloway said the judiciary would “resist with all its strength” any attempt to interfere with its independence and the rule of law.
And lawyers said the plans were an “act of vandalism” and a “retrograde step”.
The government said it would “carefully consider” views before coming to any decision or drafting legislation.
Its consultation paper said it had not yet taken a position on potential models of regulation, which were drawn up as part of an independent review.
‘No longer fit for purpose’
Esther Robertson – a health chief who has formerly led NHS 24 and NHS Fife – was asked to chair a study of the regulation of legal services in 2017, in response to concerns that the existing system was “dated and no longer fit for purpose”.
Her report said the current system was too complicated, particularly in terms of how complaints were handled, and made 40 recommendations about how legal services should be regulated.
It also proposed three different models for a new oversight system, ranging from small “light touch” changes to a complete overhaul of the system with “a single independent regulator for all providers of legal services” at the top, reporting to MSPs.
The government admitted that the latter proposal had “largely polarised the views of those in the legal and consumer landscape” and launched a consultation to “build consensus where possible on the way forward”.
IMAGE SOURCE,PA MEDIAHowever, Lord Carloway – who heads the judiciary as the lord president of the Court of Session – said the consultation “appears to have proceeded on the fundamentally flawed premise that the legal profession in Scotland regulates itself”.
He stressed that this was “incorrect”, saying the lord president regulates the system while being independent from government, parliament and those he regulates, while having ultimate control over some “limited self-regulation by the professional bodies”.
His response to the consultation said that transferring regulatory powers to a separate body answerable to Holyrood would “create an unwarranted and unacceptable interference by the government and parliament with the judiciary”.
He said this would amount to “an interference with the rule of law”, adding: “The judiciary will resist with all its strength this, and any other attempt by government or parliament to remove the court’s regulatory powers”.
Lord Carloway’s response was echoed by leading lawyers, including QC Roddy Dunlop, dean of the Faculty of Advocates, who described the plans as “an assault on the rule of law that must be resisted, root and branch, with tooth and claw”.
The Faculty’s own response to the consultation called the plans “an act of vandalism”, adding that an independent judiciary was “fundamental to the operation of democracy in Scotland” and “cannot be sacrificed on the altar of perceived modernisation”.
Meanwhile prominent defence lawyer Aamer Anwar said Lord Carloway’s response was “a devastating indictment” of the proposals.
He said: “The government cannot keep producing box-ticking consultations without rhyme or reason, or any real fundamental understanding of a system they propose to scrap.”
In its original response to the Robertson review, the government said it believed reform was required – but accepted there was “little consensus” on this or what should be done.
The consultation paper stressed that ministers were yet to “develop a position” on Ms Robertson’s key recommendation that an independent regulator be established.
Community safety minister Ash Denham said the government was “open to further views on how the report’s recommendations should be taken forward”, and wanted to “capture the fullest range of views” on what level of reform was supported.
Following Lord Carloway’s submission, a spokesperson said: “We thank the judiciary for their response to the consultation, which has generated a wide variety of opinions.
“Scotland has one of the best legal professions in the world – however improvements are needed to further support access to justice in modern Scotland. Ministers will carefully consider all the consultation responses and a report will be published in due course.”
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