Lord Carloway – fee hungry lawyers who oppose reforms are wrong. SCOTLAND’S top judge – Lord President Lord Carloway has again, publicly criticised the financial self interests of the legal profession who oppose reforms to Scotland’s justice system – out of concern for their wallets.
In a speech at the World Bar Conference on Thursday in Edinburgh, aimed principally at the legal profession, criminal law & court reforms, Lord Carloway told his audience: “… it is readily recognised that some of the more Luddite and perhaps rather paranoid elements may inevitably regard all change as inherently wrong, designed to cut costs (specifically their fees) and to secure wrongful convictions. They are wrong, but their views must be listened to.”
The biennial event brings together the member independent bars of the International Council of Advocates and Barristers (ICAB) for seminars and social events, backed up by lavish occasions in public buildings such as the Scottish National Gallery.
This year the Faculty of Advocates hosted the World Bar Conference 2016 in Edinburgh, along with gatherings in Parliament Hall – which was revealed last year to have been secretly handed over to the Faculty in a dodgy free property handover masterminded by lawyers and approved by Scottish Ministers.
While the Lord President’s recent proposals for justice reforms and faster access to justice for Scots court users may be seen as welcome, the fact is – year in year out, legal figures from Scotland’s multi billion pound legal industry claim change will come, access to justice will be faster, fees will be reduced, regulation will improve, the courts will be more accountable. None of which is ever achieved.
In short, we have heard it all before. Just like ridiculous crime statistics, supposed cuts in the legal aid budget and stage managed publications of annual reports to coincide with a budget announcement. Public Relations and spin with the repeat button pressed down.
However, this is the second time this year, Lord Carloway – who succeeded Lord Brian Gill to the role of Lord President & Lord Justice Clerk – has hit out at ‘obstructive’ lawyers and those who oppose change..
In a speech on digital justice and reforming Scotland’s “Victorian” courts addressed to the Law Society of Scotland’s Council in late January 2016, Carloway reminded his audience of legal figures: “Much of this will be achieved in our professional lives, provided that we do not take a cantankerous and obstructive approach to it.”
And, during Lord Carloway’s speech to the Commonwealth Association of Law Reform Agencies Biennial Conference held in April 2015 – Carloway did not mince his words, accusing lawyers & critics of having a financial interest in retaining the centuries old injustice safeguard of corroboration.
Reacting to opposition from the legal profession – opposition which was backed by a number of judges, Lord Carloway said: “Reactionary or excessively defensive forces among the legal profession can, and often do, behave in a manner obstructive to progressive law reform, especially where there is transparent perceived financial self-interest.”
Carloway is keenly aware that powerful elements within the legal profession and the Law Society of Scotland oppose a faster and wider system of access to justice for Scots, on the grounds such reforms may impact on the profits of law firms & sizeable claims on the annual £150 million plus Scottish Legal Aid budget.
Since the banking & financial crash of 2008, a staggering £1.2 billion pounds has been handed out to Scottish law firms, much of which goes on criminal legal aid.
Yet despite taking billions in public cash, solicitors, led by bosses at the Law Society of Scotland have staged strikes outside the Scottish Parliament & court buildings demanding legal aid cuts be reversed.
Lord Carloway’s opening lines refer to how the legal profession & courts are supposed to represent the interests of clients & justice: “The courts play the central role in the administration of justice. Their function is to promote observance of the law through the process of resolving civil disputes and determining criminal guilt. The legal profession plays its own important role. Members of both branches, solicitor and advocate (or barrister), represent the interests of the system’s users. They do more; specifically at the level of advocate, by assisting the court in finding the true facts and applying the correct law, albeit hopefully in the client’s favour. The advocate owes duties to the court and to the public, over and above those to fellow members of his profession and to the client.”
“In this broad sense, the legal profession is the muscle and ligament which makes the skeleton of the law in our democracy move.”
“Both branches of the profession remain largely self-regulating. Each is responsible, albeit in some sphere under delegated authority from the court, for training, standards, and very occasionally, the discipline of its members. The court retains a keen interest in the effective representation of both those who rely on the system to vindicate their rights and those in need of protection from state action. It must ensure that parties are adequately represented. In Scotland, this obligation is enshrined not only within the concept of a fair trial under Article 6 of the European Convention on Human Rights but also in the much older and more established common law principles of fairness in court proceedings generally. What amounts to adequate representation may vary from case to case, but it is ultimately a matter for the court to determine. It must do so to ensure that there is access to justice for all parties. After all, if someone does not have effective representation, justice cannot be seen to be done.”
On access to justice in the modern age – Lord Carloway said: “Advances in technology mean that the courts operate in a world which would be unrecognisable to those who lived 100 years ago and, in many respects, unfamiliar to those practising 14 years ago when the first of these conferences was held. Last year saw the implementation of the most comprehensive reform of the practices of the Scottish courts since the early Victorian age. The implementation of Lord Gill’s Review has had, and will continue to have, a very significant impact on the level at which both civil and criminal cases are decided. Court procedure is closely linked to access to justice: it is the link between evidence, as proof of fact, and correct decisions based on a correct application of the law.”
“Advances in technology influence users’ expectations. On a fundamental level, the opportunities presented by modern technology could, to use the words of Lady Dorrian …”make justice more accessible to a wider number of people, to make evidence more reliable and more readily available, and to make processes and procedures more efficient”. This is something which is being considered on a wider basis as part of the Digital Justice Strategy of the Scottish Government.It is a recognition of the fact that the court system should keep pace with developments and change in the society which it is intended to serve.”
Concluding his speech to the World Bar Conference, Lord Carloway said: “What is the role of the legal profession in all of this? The profession is a vital part of the machinery of justice. The court relies on both branches of the profession to perform their functions as representatives of the parties. Without this input, the risk that the court will fall into error is greatly increased.”
“The challenges posed by the development of the traditional roles of the profession, models of funding, competing interests, and modern technology are all ones which the profession, as well as the court system, require to meet.”
Sounds Familiar? – Civil Courts Review : Scots Justice still “Victorian” years after judge called for reforms:
The Scottish Civil Courts Review of 2009 authored by then Lord Justice Clerk, Lord Brian Gill, castigated Scotland’s Civil Justice System as being Victorian, costly, and unfit for purpose, yet years on from the review, little of the proposed reforms have been implemented due to pressure from vested interests in the legal world, and a lack of political will to deliver access to justice to all Scots.
In a speech to the Law Society of Scotland’s 60 year anniversary conference several years ago, reproduced in full here Lord Gill said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society.
“It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice.”
Previous articles on the Civil Courts Review and reforms of Scotland’s antiquated civil justice system can be found on Diary of Injustice here: Scottish Civil Courts Review.