The independence of the judicial system in Scotland has always been a feature of our nation’s democracy. This has always been widely respected and greatly valued. Indeed, impartiality, integrity and freedom from interference are cornerstone features of the Scottish judicial system which ensures the rights of every citizen are safeguarded. That is why alarm bells are ringing both among the legal profession, and the opposition, with regards to judicial impartiality.
As readers will know, for historical reasons, the United Kingdom has a unique judicial branch in which constituent nations have different justice systems and therefore Scots law is similar, but distinct, from English law. The Scottish Government is currently trying to bring forward legislation that has been condemned by those in the legal profession, most damningly of all by the Lord Justice Clerk and Scotland’s second most senior judge. This is a truly unprecedented situation as members of the judiciary very rarely attend parliament to have their voice heard on proposed legislation.
Lady Dorrian told the Equalities, Human Rights and Civil Justice Committee that she had “grave concerns” over the Regulations of Legal Services (Scotland) Bill and how it poses a constitutional threat to the independence of the justice system. In particular, she highlighted the plans to remove the Lord President and the Court of Sessions as the ultimate regulators of the profession. This means that the bill could give Scottish Government ministers the power to directly influence the regulation of the profession, as well as having the power to create a completely new regulator if it wished to do so. The Law Society of Scotland has also commented that these plans would undermine the principle of having a legal profession independent from the state.
It is absolutely crucial that the judicial branch remains independent from the influence of government, and that its judges are enabled to make decisions and rulings in their capacity as interpreters of the law, and free from any perceived pressure from the executive. Our democratic constitution ensures that proper balances are in place and that power can be checked by three branches of state.
When one of Scotland’s most senior judges says: “there is just a lack of understanding of fundamental democratic principles”, we should all be very concerned.
