Meeting of the Parliament (Hybrid) 10 June 2021
I plan to address two areas in this short speech.
First, I commend the Scottish Government’s commitment to creating a register of interests for members of the judiciary, and I congratulate the legal journalist Peter Cherbi for his long-standing commitment to that principle, which stems from his petition of 2012. In preparing for the debate, I read with interest the arguments for and against the proposal, particularly those of the Rt Hon Lord Carloway. He draws heavily on the refreshed statement of judicial ethics in arguing that there is no need for change.
I take a consequentialist or end-result approach to the ethics of the matter, rather than a rule-based or deontological approach. In other words, we as public servants in this place fully accept the need for a register of our pecuniary interests not only because of the risk of our interests affecting our law making, but because of the perception that they may influence it. The end, in this case, does indeed justify the means.
We fully accept that we have a duty and an obligation to have such a register in bearing the privilege of acting and being paid as servants of the public, so what makes judges different? Surely, as Professor Alan Paterson of the University of Strathclyde notes, transparency is part and parcel of accountability.
Lord Carloway states:
“I remain of the view that ... any monitoring of judicial conduct, including judges’ interests relative to the performance of their duties, should remain a matter for the Judiciary and not for Government or Parliament.”
Really? That can only be described as the judiciary marking their own homework.
That leads me on to the second key section of my speech, which is on the issue of the Law Society of Scotland marking its own homework, in the form of lawyers regulating lawyers. I must declare an interest in this area, as I am one of the few complainants who have successfully navigated the vagaries of the Law Society processes. Despite—I hope—not being without intellectual means, as a consumer, I found the process complex, opaque and time consuming. It is my belief that the overarching legislation that governs the process is neither fit for purpose nor of its time. Other disciplines, such as the medical and charity sectors, have long since moved away from marking their own homework and the application of “beyond all reasonable doubt” as the test. There are clearly critical issues with the processes adopted that are contrary to the principles of better regulation and, in particular, the need to be consistent, accountable and transparent.
I support the calls for reform from the Esther Roberton review. Ms Roberton said:
“I concluded that those who use legal services, and those that deliver these services, will be best served in the future by independent regulation that meets internationally recognised regulation principles”.
She was not alone. More recently, the Competition and Markets Authority noted:
“Separating regulation from representation will increase trust in this sector and result in better regulation”.
The cabinet secretary has accountability for a huge portfolio, and I respect the fact that the challenges to recover, renew and transform justice are significant. At some point—not today—I hope to ask him about the status of the public consultation that sought to seek consensus on the way forward on the future of the legal services regulatory framework for Scotland. However, I note that such consensus—or compromise—may prove to be elusive, which appears to be the view of some in the Law Society.
Recently, in an article in Legal Practice Management, Neil Stevenson, the chief executive of the Scottish Legal Complaints Commission, asked:
“if a compromise is found, is that a compromise in the best interests of the profession and the public, or a compromise between organisations with understandable vested interests?”.
Stevenson quotes Stephen Mayson, who undertook a review of legal regulation in England and Wales. Mayson noted that
“the regulatory framework should better reflect the legitimate needs and expectations of the more than 90% of the population for whom it is not currently designed”—
that is, consumers.
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