Bombers and budgets under scrutiny at annual debate

Published on Sunday 20 September 2009 21:52

WITH the decision to release the Lockerbie bomber still reverberating around the Scottish legal profession, it was unsurprising that the topic was first on the agenda for the annual Scotsman live legal debate held on Wednesday in Edinburgh.

The launch event for the 2010 Legal Awards programme, the debate gathered together an eclectic panel and enthusiastic audience to discuss the big issues surrounding Scottish law.

As well as the impact of Megrahi's release on the Scottish justice system, the discussions dealt with the current travails of young Scottish lawyers cast adrift by struggling firms; the future of advocacy and changes required to the Scottish courts system ahead of Lord Gill's review as well as the ongoing governance role of the Law Society as it prepares to lay down its revised 2010 budget to its members later this month.

Marshalled by journalist and commentator Ian Fraser, the panellists were: Jonathan Mitchell QC, a member of the Faculty of Advocates' council; Ian Smart, the president of the Law Society of Scotland; Catriona Headley, the secretary of the Scottish Young Lawyers Association and Lorne Crerar, the chairman of Harper Macleod.

Has the Megrahi decision damaged the Scottish justice system? Jonathan Mitchell (JM):

I don't believe anyone, a couple of years from now, in Scotland or anywhere else is going to have this near the front of their minds. Enough murderers have been freed in Scotland, England and elsewhere in Europe in recent years without anybody paying much attention. We freed 78 murderers in Northern Ireland following the Good Friday Agreement.

There might be an issue as to whether we should change policy in the future. We should perhaps follow the example of other countries and say ministers should not take the decision on compassionate release – this is something for judges, or the parole board. The parole board advised that Megrahi should be released, the governor of the prison advised he should be released, the medical advice was that he was terminally ill. I don't see how you can turn round and say: "you're just the parole board, you're just the governor of the prison, you're only doctors, I am an elected politician responsible to the electorate and I say you're wrong". That would be outrageous.

Ian Smart (IS): All civilised legal systems have compassionate release. The minister made a decision based on the evidence that was presented to him and the law of Scotland. The theory that suggests he, Peter Mandelson, Colonel Gaddafi's son and others formed a conspiracy is just absurd. No sane person thinks he made the decision other than in good faith. We have to move on.

Lorne Crerar (LC): I was very proud we dealt with it the way we did and that we are seen as being a nation of compassion rather than a nation of cruelty. I see it as being a positive that the Scottish legal system is seen as being robust and independent and has compassion as a part of what it does.

Catriona Headley (CH): The problem with the Megrahi decision is it appears to have been made by a politician for political reasons. If you look at the guidance that was available and the legislation followed by the justice minister, I don't think there was any other option but to release Megrahi.

Have trainees been misled by firms into thinking they had a safe future before being left on the scrap heap?

LC: We had a credit crunch and that has peculiar consequences for law firms. As opposed to a recession, the credit crunch means a lack of availability of debt so that reduces corporate and real estate activity. The other peculiarity is the acknowledged demise of HBOS and the RBS situation. That means there are unpleasant consequences.

It's easy to criticise the big firms, but it's not just about profit – there are business needs and they clearly saw that the prognosis for their work was not positive and they needed to protect the business. I don't think anyone was misled. The second most important point is: where is the future and what does that mean for trainees that have not been able to secure positions?

CH: A lot of people who find themselves in these unfortunate positions do feel let down, but unfortunately there is only so much that can be done to insulate trainees from a global recession. I don't think they were misled, but there was a general expectation from the system – perhaps an unrealistic one. But young lawyers can't forget that it has affected other people as well.

IS: The people qualifying this summer are at a particularly unfortunate part of the cycle. They were hired at the peak of the boom and they are graduating not quite at the point of a recovery. For them it is a complete tragedy, but we can't create a false legal services market. All we can do is give as much support as we can to people who have graduated. We can't create jobs for them.

Should the training regime be changed to prevent this arising in the future?

IS: We are looking at fairly major changes to the way young lawyers are trained, but we can't prevent people aspiring to be lawyers. What the Law Society doesn't control is the right of universities to offer the LLB – that is a matter for them.

JM: If people are discouraged from coming into the legal profession, there is going to be a long-term problem that they won't be there in five years' time. They will have gone off and done something else. It is possible we may end up in the long term with a shortage of young people. That said, I am inclined to think this is a problem that is likely to go away in a few years.

Will firms come to regret letting young lawyers go when the economy recovers?

IS: There is every prospect of that, but you come back to the question of the credit crunch. Law firms are like any other businesses, but there is every possibility that, in three or four years from now, particularly commercial lawyers will be in short supply.

LC: I'm sure the firms that have not been able to renew contracts, or have laid people off regret it. I question whether or not the buoyant times are going to return in the foreseeable future. What we will be doing in three to four years is not going to be the same as what we were doing in March 2008, because the debt is not going to be there to do leveraged debt real estate deals or small M&A activity. The bank work from HBOS and RBS, until they come out of government ownership is not going to be there. For the trainees who do not have job, I don't think it's about waiting around until a real estate or corporate job becomes available, it's about thinking about where law firms are going to be.

With the Gill review of Scottish courts imminent, what is the future for advocacy in Scotland?

JM:

The problems we face at the moment at the bar are short-term and long-term. The short-term problem is the extent of work being kept in-house that two years ago solicitors might have taken to, particularly, junior advocates. The longer term, more important issue is globalisation. We are a branch economy in the Scottish legal system. It is a problem that in England and Scotland there is a surplus of good quality barristers and advocates.

What changes need to be made to the Scottish courts system?

JM: I do think we have a pretty antiquated system. I don't think it is something that makes a lot of difference to us as advocates. If we had a more efficient, streamlined system, we'd probably do better, because it becomes more attractive to more people to choose to litigate. We're not a terribly litigious society, but if people were offered better options in going to court they would go more often.

LC: (Scotland] is not the forum of choice for many clients. The job is: can we make the Scottish jurisdiction a forum of choice? That will require significant change. It is seen as being quite a reactionary environment that is resistant to change. Change, and go with the times and make our forum the best in the world – a place where people want to come and litigate because they know it is easier, quicker, value for money and you get a result. We are a population of 5.6 million, we have a small profession and we are prepared to justify inefficiencies, poor behaviour, poor results and poor systems. We should be saying "enough". We have a unique opportunity. South of the border, it's a 55m population –- they can't change anything quickly – we can. We should be grasping that opportunity.

IS: We think there are serious problems with the system. I don't say there aren't faults with them, but look at the contrast with employment tribunals – you put your claim in, the other side responds, you get a date for a hearing and the hearing goes ahead. The other big thing is the use of new technology. The difference with the new commercial court in Glasgow (is great] You come to the hearing and the sheriff has a list of questions for you at the first hearing!

CH: The system as it stands – there needs to be changes, but if you are going to affect one of the courts, you have to look at the sheriff courts as well. If there is a change to the Court of Session it will inevitably mean a shift of caseload to the sheriff court. The sheriff court has to be changed to accommodate that, because as it stands it is creaking under the weight of the amount of litigation.

The Law Society has come in for a lot of flak recently as it seeks to cut its budget. How is it viewed by the profession?

IS: There are 10,500 members of the Law Society. It's easy, particularly for those with a colourful turn of phrase, to attract publicity. My impression is that the current leadership of the society has the confidence of the overwhelming majority of the profession in Scotland.

LC: The history of the Law Society, particularly in some sections of the legal community was not particularly good. I confess I had that view for a while. I was unsatisfied with where the profession was in promoting solicitors in Scotland. But I think the society has made the right turns over the last year and we have the right leadership. We think it is real value for money and it is more important now than it ever was.

CH: The SYLA has been in talks with the education and training department about what can be done, and they have been good. The society provides free CPD for new lawyers and I hope if there are to be budget cuts they do not fall on the education and training department.

IS: We are confident there will be no cut in the services provided to the profession as a result of the cut in the practising certificate fee.

&#149 Nominations for the Scott + Co Legal Awards are now open until 2 December. For details on categories and entry terms, visit www.thelegalawards.com