January reports

January 2010 saw the publication of two reports (one admittedly a draft for comment) of potential significance for the Scottish legal system.

On 18 January 2010 there appeared the draft Thomson report on rights of audience, suggesting the model  for future regulation of advocates and solicitor advocates following last year's row on the subject prompted by Lord Justice Clerk Gill in the Woodside case.  The draft is issued to allow comment and discussion before final publication of conclusions in March 2010.  The draft accepts continuation of the separate identities, systems and business models of advocates and solicitor advocates but recommends that all pleaders in the Supreme Courts should have one standard qualification process, one code of conduct as it relates to appearance work, a common monitoring process and one system of complaints.  All pleaders and QCs should be reviewed on a regular cycle, every three or five years being suggested as appropriate.  Judges should be able to approach a nominated person, established by a process operated by the Law Society of Scotland, as the senior representative of solicitor advocates, in the same way as they may approach the Dean of Faculty with regard to advocates about whom they have concerns.  This person should have the authority to resolve problems relating to a solicitor advocate in court that the judge is not able to resolve themselves in their own court.  With regard to the "Rule 3 issue" (does it mean that solicitor advocates need only explain the advantages and disadvantages of instructing an advocate and a solicitor advocate or, as maintained by solicitors who do not have solicitor advocates in their firm, pointing out to a client the option of going to a competing law firm who did employ solicitor advocates?), the draft report recommends that anyone instructed by an individual (including advocates with regard to instructions received under the direct access arrangements) should ensure that options regarding representation in court have been explained properly to clients: the main objective should not be the maximising of fees for the law firm, but providing the client with advice on the best and most cost effective options for them.

Professor Neil Walker's report on Final Appellate Jurisdiction in the Scottish Legal System, commissioned by the Scottish Government at the end of 2008, was published on  22 January 2010.  The report reviews six different models for the future of the UK Supreme Court, including that of a fully autonomous Scottish legal system.  In the end however the report plumps for what it calls a "quasi-federal Supreme Court" within the United Kingdom.  In the words of the executive summary, this –

envisages that those Scottish cases (both civil and criminal) raising common UK issues be heard by the Supreme Court, preferably at a Scottish location, and those Scottish cases (again, both civil and criminal) addressing distinct questions of Scots law be dealt with by the indigenous Scottish courts.

This model, says Professor Walker, is the "most sensitive to the relevant values at stake in its treatment of the complex mix of divergent and convergent influences that lies at the heart of the relationship of Scots law and its appellate court system to that of the UK as a whole", while also being "reasonably capable of overcoming the difficulties of asymmetrical reform of the institution of the UK Supreme Court".  At the launch event held in the premises of the Writers to the Signet in Edinburgh, Scots Law News enjoyed most the question put by a representative of the Fourth Estate – "Do you think Kenny will like it?" – to which Professor Walker (once a flatmate of the Cabinet Secretary for Justice) replied only with an enigmatic smile.  But it does appear from the answer to another question that the English have yet to be consulted on this matter. 

See also an interesting blog on this subject by Aidan O'Neill QC.