In a scathing critique of the new Holyrood legislation, senior Scottish judges said they were “opposed in principle” to any changes that seemed to threaten their independence.
They said it was “of vital constitutional importance” that the public be protected from “arbitrary abuses of power by the state” through an independent legal profession.
However, the draft law regulating legal services, under consideration by MSPs this fall, envisages the government “taking the power to control lawyers into its own hands”.
The judges highlighted the recent attacks on judicial independence in Poland and Israel as “a timely reminder of the need for constant vigilance” against state interference.
Lawyers must be able to represent people “without fear of reprisal,” they said.
“The dangers of devolving aspects of regulatory power over the legal profession from the judiciary to the government, as proposed in this bill, cannot be overstated.”
A number of other legal entities have also violated the legislation.
The Law Society of Scotland said it was unaware of a similar takeover of power “in any other Western democracy”.
The bill aims to reform the regulation of legal services in Scotland.
This is currently done through the Law Society of Scotland, the Faculty of Advocates and the Association of Construction Attorneys under the general authority of the Lord President, the most senior judge in the country, currently Lord Carloway.
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The bill would empower ministers to review the regulatory performance of these bodies and allow new bodies to become regulators.
Ministers say the aim is “to provide Scotland with a modern, forward-looking regulatory framework that best promotes competition, innovation and the public and consumer interest in an efficient, effective and efficient legal sector”.
The bill was presented in Holyrood in April by SNP Justice Secretary Angela Constance and a consultation on it was completed earlier this month.
Parliament’s Equality, Human Rights and Civil Justice Committee is due to gather evidence on the general principles of the bill by mid-December.
The Law Society of Scotland has previously warned that powers to allow ministers to intervene and order regulators are “deeply alarming” and undermine the independence of the legal system.
In their unanimous response to the consultation, the 36 Scottish judges were scathing.
They write: “These proposals pose a threat to the independence of the legal profession and the judiciary.” It is of crucial constitutional importance that there be a legal profession, willing and able to advocate for the citizen against the given government .
“The judiciary fundamentally rejects this attempt to bring the process under political control. If the law is passed in its current form, Scotland will be recognized internationally as a country whose legal system is vulnerable to political abuse.”
The judges particularly questioned the government’s plan to “act as a co-regulator alongside the Lord President”.
They said the bill, as it stands, would limit the Lord President’s role and jeopardize the continued independence of the legal profession “by bringing aspects of legal regulation under state, and therefore political, scrutiny”.
This puts “the separation of powers between the government, parliament and the judiciary” at risk. It represents an unacceptable government interference in the judiciary.”
The bill would also create a “serious conflict of interest” by giving ministers the power to “scrutinize the activities of lawyers who might act for or against them in cases”.
The judges noted that Scottish ministers have been directly involved in more than 4,120 cases before Scottish courts since 2018, some involving matters of great political sensitivity, and that independence from government was therefore “vital”.
The statement states: “The judicial review process is designed to enable citizens (and governments) to challenge executive power with the assurance that an independent judiciary will hear the case without fear or favor.”
“It is important that lawyers acting for and against the government in such cases act independently; that they are not under government control and are not afraid of regulatory sanctions if they win or lose a politically contentious case.”
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However, the judiciary stated that if the bill addressed his concerns it “should provide an acceptable basis for updating the regulation of legal services in Scotland”.
In its submission to the Equality Committee, the Law Society of Scotland said: “Our main concern is the Scottish Government’s desire to obtain far-reaching and exceptional new powers of intervention in the regulation of legal professions.”
“These forces, which we have not been able to identify in any other western democracy, risk seriously undermining the rule of law and the independence of the Scottish legal sector from the state.”
The law school said the reforms “proceed to innovate in a way that poses significant risks to the independence of the legal profession and for which there is no objective justification.”
It went on to say: “The Bill contains provisions that give Scottish Ministers very broad powers, not only to make regulations, but also to allow intervention in certain circumstances.”
“This does not so much build on the existing framework, but rather creates unwarranted mechanisms that may be used in the future in ways that undermine and jeopardize the value of an independent profession and regulation.”
The International Bar Association’s statement said parts of the bill “represent an alarming and dangerous attack by the Scottish Government on the independence of the bar. All at once there is a risk that the rule of law in Scotland will be undermined and that Scotland’s international reputation will be damaged.” and its legal sphere.”
The Scottish Government said the proposals aimed to create a transparent and accessible justice system and built on existing legislation on which ministers and the Lord President are working together.
A Government spokesman said: “The Scottish Government has no intention of changing the vital importance of an independent legal sector and the promotion of an independent, strong and diverse legal profession is enshrined in the Bill.”
A Speaker of the Scottish Parliament said: “The committee will consider the submissions received and then invite witnesses to testify publicly while it further considers the bill.”