The statement by Scotland’s top judge came in Lord Carloway’s address to lawyers, judges and other legal vested interests in his recent Opening of the Legal Year 2023-2024 speech – where Carloway attacked plans to reform how lawyers regulate themselves in the Regulation of Legal Services (Scotland) Bill which is currently at Stage 1 consideration a the Scottish Parliament.
In a jibe at the Scottish Government’s admittedly feeble plans to reform regulation of the Legal profession in Scotland, Lord Carloway claimed the reforms to lawyers looking after themselves in complaints regulation – “gives rise to serious constitutional concerns about the rule of law …”
Lord Carloway said: “The first is the Regulation of Legal Services. The senior judiciary recently responded to Parliament's call for views on the Bill. They were unanimous in the view that the Bill, as currently drafted, gives rise to serious constitutional concerns about the rule of law and the separation of powers. 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.”
Scotland’s top judge went on to declare his unelected office of Lord President and his judiciary, should instead remain the ultimate regulator of rogue lawyers facing any complaint or question about their provision of legal services to clients.
Lord Carloway stated: “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.”
Regulation of lawyers in Scotland is currently controlled by the Law Society of Scotland, Faculty of Advocates and a lawyer dominated Scottish Legal Complaints Commission (SLCC)
The Scottish Legal Complaints Commission is funded by client fees to solicitors and Advocates who then pay the complaints levy to the Scottish Legal Complaints Commission.
In Scotland, a decades old, repressive and at times highly vindictive regime of lawyers looking after themselves – has seen thousands of clients & consumers of legal services each year – ripped-off by their own solicitors with little or no recompense for the millions of pounds lost to legal services overcharging, theft, embezzlement & outright solicitor client fraud each year in Scotland’s legal services market.
In some of the most appalling cases of Scots lawyers found to have looted their clients assets - legal regulators have reacted to unwanted media coverage by using private briefings and turning newspapers and journalists against each other. In some well known cases, legal regulators encouraged articles against legal reforms, blocked publication of newspaper reports on identified lawyers & law firms, and personally went after ;law reform campaigners who seek nothing more than removing the self regulation element from regulation of legal services and legal representatives in Scotland.
However – despite the public protests of Lord Carloway and other ‘leaders’ of Scotland’s legal profession – including the Dean of the Faculty of Advocates who has also attacked the proposed legal reforms, the reality is the Scottish Government’s Regulation of Legal Services Bill falls far short of what is needed to quell Scots lawyers appetite for ripping off consumers and clients.
And unsurprisingly, according to legal and political sources - there are allegations much of the Scottish Government’s claimed solicitor regulation reform proposals are ‘deliberately deceptive’ and have already been negotiated away with legal interests and political partners in deals to water down what is currently in the bill.
Speaking on condition of anonymity, an MSP who along with others is said to be facing de-selection by their own embittered party – informed journalists of private briefings and meetings between MSPs of all parties - and lawyers and legal regulators who are anxious to ensure much of the already watered down proposals in the reform of legal regulation bill are eliminated or that the entire bill is stalled or axed completely.
No references to any of these meetings appear to exist in entries of the Holyrood lobbying register but it has been established meetings did take place and lawyers who met MSPs appear to believe they succeeded in their lobbying aims, stating so in private lawyer-only social media chat groups.
You can read more about the Scottish Government’s Reform of Legal Services Bill here: Reform of Legal Services Bill - Scottish Parliament
This latest attempt by a Scottish Government and the pro-lawyer Scottish Parliament to reform regulation of lawyers is the third attempt since 2000 – where in 2001 – and amid bitter evidence sessions - Holyrood’s Justice Committee led by Christine Grahame threw out calls for reform of how lawyers cover up complaints for their own colleagues.
A second attempt by another of Holyrood’s Justice Committees in 2006 saw arm twisting from legal regulators to shelve much of the proposals in the Legal Profession & Legal Aid Bill, which became law in 2007 after multiple amendments lodged by MSPs, including Scottish Conservative MSPs on behalf of legal vested interests.
What became the LPLA Act 2007, which led to the formation of the Scottish Legal Complaints Commission in 2008 – which in turn has led to some fifteen years and counting of disastrous complaints regulation by an overly false legal regulator which is in fact staffed and run by the same lawyers and vested legal interests who ran complaints at the Law Society of Scotland.
To make matters worse, the Scottish Legal Complaints Commission later set into policy a system which intimidated clients who had already been ripped off by their solicitors – into signing Non Disclosure Agreements to conceal thousands of complaints against Scots multiple law firms over the last decade – with many law firms appearing week after week at the Scottish Legal Complaints Commission to demand complainants sign more NDAs to conceal some of the worst and repetitive acts against clients which even the old Law Society of Scotland regime failed to keep away from public gaze.
And, it should be noted the Scottish Legal Complaints Commission has cost clients of Scottish solicitors around £40million pounds in complaints levies – paid for by law firms hiking client fees to meet their annual complaints levy.
Lord President Lord Carloway’s Legal Year address to lawyers, which takes the usual Judicial Office tone of launching threats against one piece of reform legislation, then absorbing another piece of legislation – the Victims, Witnesses and Justice Reform Bill as a form of pro-justice system judicial PR and follow-the-money-supply-to-law-firms – is well worth a read.
It should be glaringly obvious to all the Victims, Witnesses and Justice Reform Bill – more of which can be read here Victims, Witnesses and Justice Reform Bill - Scottish Parliament has only come about because Scotland’s judges, courts & lawyers have been mistreating and preying on victims of crime, abuse & countless other crimes for decades to the point the public and victims themselves demanded action – rather than the action coming willingly from the judiciary or legal profession who seem to believe they own the law.
Lord Carloway’s Opening of the Legal Year 2023-2024 speech can be downloaded here Lord Carloway - Opening of Legal Year Scotland 2023-24 with relevant content below:
I extend a special welcome to Lord Burnett of Maldon, the Lord Chief Justice of England and Wales and thank him particularly for his work during his years in office in ensuring that Scotland's voice was heard on legal matters in the Halls of Westminster and elsewhere.
Law Reform: Regulation of Legal Services and Criminal Justice
Looking to what it is that might happen next, there are two Bills on which views are currently being sought. Each proposes a series of notable reforms to the justice system.
The first is the Regulation of Legal Services. The senior judiciary recently responded to Parliament's call for views on the Bill. They were unanimous in the view that the Bill, as currently drafted, gives rise to serious constitutional concerns about the rule of law and the separation of powers. 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.
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.
On a more encouraging note, the Victims, Witnesses and Justice Reform Bill contains proposals for significant reform of the criminal justice system, many of which are based on the Lord Justice Clerk's Review. The judiciary welcome the reforms insofar as they aim to make giving evidence a less traumatic experience for witnesses, including the creation of a right to anonymity and to independent legal representation for complainers in relation to applications under the rape shield legislation, the establishment of a specialist sexual offences court and the abolition of the not proven verdict.
Overall, the judiciary believe the Bill proposes a number of measures which, in principle, represent improvements to the existing system.
The Criminal Courts: Recover, Renew, Transform
Following the build-up of criminal cases which have waited for a considerable period of time to go to trial as a result of lockdown, the court service began the Recover, Renew and Transform programme in September 2021.
The recovery aspect aimed to restore the courts to their pre-pandemic capacity. It involved recruiting more sheriffs and court staff and the setting up of more High Court and sheriff trial courts. Good progress has been made. The challenge now is an ever-increasing volume of indictments and complaints which libel sexual offences. In the face of this new volume of criminal business, we no longer expect to restore matters to the pre-pandemic position. We need to adjust our expectations and set a new reasonable baseline for the number of cases waiting to go to trial at any one time.
Our modelling predicts that the number of High Court cases waiting for trial will recover to a new reasonable baseline level by March 2025, and sheriff solemn trials by March 2026.
Prisoner escort services are causing those in custody to arrive at court late. This has an impact on the smooth operation of the criminal courts. We are looking to accelerate plans to move to virtual custodies. Pilots have already taken place. As I have said many times before, the need to bring those arrested before a court as soon as practicable, must remain a priority.
The purpose of renewal is to establish better ways of working which promote the resolution of cases at the earliest opportunity. The Summary Case Management pilot continues in Dundee, Hamilton and Paisley Sheriff Courts. It aims to reduce the number of hearings to those which are necessary, by encouraging early resolution through early disclosure. Early disclosure has allowed the Crown to take a more targeted approach to the citation of witnesses. There has been earlier resolution of proceedings brought in the pilot courts and a reduction in the number of witness citations being issued in those proceedings. Work is underway to roll the pilot out to Glasgow Sheriff Court.
Specialist online courts are being set up to deal with domestic abuse cases. The idea is to ensure that the complainer and the accused do not require to meet each other. This reduces potential trauma for complainers.
Juries continue to be balloted remotely, thus sparing the public the inconvenience of coming to court. Over the course of the past year, over 450 police and expert witnesses have given their evidence remotely in High Court trials.
A key component of transformation lies in the implementation of the recommendations of Lady Dorrian's Review. The court service has been making substantial progress in relation to those recommendations which do not require legislation. The creation of facilities to pre-record the evidence of children and vulnerable witnesses and the giving of evidence remotely is being accelerated. We now have designated facilities for commissions in Edinburgh, Glasgow, Inverness and Aberdeen.
Earlier this month, I visited the Bairns' Hoose. The Hoose is designed to feel like a family home. It is based on an international model first developed in Iceland, called the Barnahus, which brings together justice, health, social work and recovery support for children in one location. The Hoose is, in essence, a comfortable and safe space in which children can give evidence, receive medical care, take part in decisions about their protection and obtain support to recover from trauma.
The Hoose is the first of its kind in Scotland. The Barnahus model was first advocated for in early 2016, as part of SCTS's Evidence and Procedure Review. I am very pleased to see it implemented into the system, and I hope that we will see more of them developed in due course.
The Civil Courts: Technology and Transparency
On the civil side, there have been a number of notable technological improvements this year.
The importance of making the people's courts as accessible as possible cannot be understated. The advent of new technology means that we can implement new, more efficient and convenient ways to do this. In June, we officially launched Court of Session Live, a new streaming service for Inner House proceedings. I thank Lord Pentland, and his cross-departmental task force, for their hard work in getting this up and running.
Alongside Court of Session Live, we are publishing information about, and summaries of, upcoming appeals much earlier than we have ever done before. We hope that this will enable those who are interested in viewing proceedings, whether online or in person, to make plans to do so.
We launched the new and improved Civil Online portal in May and have significantly expanded the level of service which the portal offers. In Simple Procedure cases, court users can now raise and respond to actions through the portal.
We secured funding from the Scottish Government to start developing a new case management system for the Office of the Public Guardian. The new interface will provide a more accessible and broader range of online services to the public.
Many of our Tribunals are experiencing growth in the volume of business. The work of the Social Security Chamber is expected to increase significantly. The new Local Taxation Chamber has inherited over 40,000 cases from its predecessor, the Valuation Appeals Committee. We are working closely with the Government to ensure that sufficient resources are made available to support this. Reform of the Tribunal system generally also continues, with the further expansion of the General Regulatory Chamber's jurisdiction, and the potential transfer of the MHT into the First-tier Tribunal during 2024.
The court service are in discussions with the Faculty about the re-establishment of the practice of making justiciary and session papers available to the Advocates Library. This will enable advocates and, via the National Library, members of the public, to view them.
We are working hard to deliver these improvements, but, as ever, we can only do as much as resources allow. We will continue to do what we can within budgetary constraints. I ask only that the government continues to support us by providing us with sufficient funding to continue to deliver core services, as well as these improvements to the system.
Ends.
Earlier relevant coverage from this blog - of how the Legal Profession & Legal Aid Act (2007) was deliberately mangled by the Scottish Government, and Scottish Parliament – which allowed lawyers to continue to regulate themselves to the current date, can be found here: The Legal Profession & Legal Aid (Scotland) Act 2007
