Senior judge voices 'grave concerns' over Scottish Government legal reforms

The comments on the legal reforms put forward by the Scottish Government have been made by Lady Dorrian

Scotland's second most senior judge has told MSPs about "grave concerns" over legal reforms being put forward by the Scottish Government.

Lord Justice Clerk Lady Dorrian insisted that the changes, as they currently stand, could be a "constitutional threat to the independence of the judiciary and of the legal profession".

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She went on to state that provisions in the Regulation of Legal Services (Scotland) Bill "clearly transgress against adherence to the rule of law", as they would require the Lord President - Scotland's most senior judge - to act jointly with Scottish ministers.

The High Court in Edinburgh. Lord Justice Clerk Lady Dorrian insisted planned legal reforms could be a 'constitutional threat' to the judiciaryThe High Court in Edinburgh. Lord Justice Clerk Lady Dorrian insisted planned legal reforms could be a 'constitutional threat' to the judiciary
The High Court in Edinburgh. Lord Justice Clerk Lady Dorrian insisted planned legal reforms could be a 'constitutional threat' to the judiciary

She spoke out as she appeared before MSPs on Holyrood's Equalities, Human Rights and Civil Justice Committee, who are scrutinising the proposed legislation.

With the Bill having already been branded a "threat" to the independence of the legal profession and judiciary, community safety minister Siobhian Brown has promised to make changes.

Concerns have been raised because the legislation currently seeks to give ministers powers over the regulation of legal professionals - something usually done by the Lord President and others.

The Law Society of Scotland has already argued that, by giving the Scottish Government the ability to "intervene directly in regulation", the legislation "undermines the fundamental principle of having a legal profession which is independent from the state".

Lady DorrianLady Dorrian
Lady Dorrian

Speaking of the "grave concerns we have with aspects of this Bill", 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."

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Highlighting the role the Lord President plays in regulating the profession, Lady Dorrian insisted this must be "independent from government", citing this as being "central to our democracy".

But she said the Bill could give Scottish ministers the ability to "directly exercise power to regulate the profession and even set up an entirely new regulator".

Lady Dorrian also insisted that in requiring the Lord President to act in "certain circumstances along with government", the Bill was "constitutionally inept".

Her comments came as she stressed that the "legal profession must be independent from government and from Parliament".

The Lord Justice Clerk told the committee: "There is just a lack of understanding of fundamental democratic principles.

"Independence is not something that is created for the benefit of lawyers, it's not there to shield them or make them unaccountable.

"It is designed to benefit the individual consumer and make sure someone who may end up having to sue the government may be sure of obtaining a lawyer who will be absolutely fearless in the presentation of their case and entirely independent of any government influence."

She added that between April 2016 and November 2023 there had been 4,946 civil cases before the courts involving the Scottish Government.

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And while the Scottish Government has pledged to amend the legislation, Lady Dorrian stressed that "with these things the devil is in the detail", with ministers having not yet revealed the changes they seek to make.

The Lord Justice Clerk said it was "good that Scottish ministers have recognised it is important to amend the Bill to address some of our concerns".

But she added while there had been some "engagement" with the Government about the issues, the judiciary did "not have any idea" about what the amendments will look like.

She said: "We don't know what they are yet, whether they will address our concerns adequately or not remains to be seen.

"It is really not possible to discuss it in a vacuum, we need to know what the proposals are."

Lady Dorrian said: "Seeing sight of the amendments has really got to be the first stage."

Lord Ericht, a fellow Senator of the College of Justice who was appearing alongside Lady Dorrian, said: "We need a lot more information from the Scottish Government before we can consider whether whatever proposals they come up with are viable, and the essential thing will be to see the draft amendments."

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