Officers of Court – Scotsman Article – 03 February 2022


The separation of powers has been an issue in Scotland over recent years because of the Lord Advocate’s twin role of being senior government legal adviser and simultaneously head of the prosecution service. To be fair to the SNP they can say that they weren’t responsible for its creation, as it’s an historic anachronism. But they have brought it into focus and showed the real need for the separation through recent actions. Shamefully, though there seems to be no urgency being shown by them to address it.

However, their lack of alacrity on that issue has now been compounded by another incursion into the separation of powers debate and in this they’re wholly culpable. The suggestion of replacing the powers of the court and ultimate responsibility of the Lord President over the legal profession with a body, quango call it what you may, and appointed by Parliament’s plain wrong.

It’s not simply that it puts further powers the way of the Government. After all Parliament is dominated by the administration in charge and to date backbench rebellions and rejection of Government dictat have been few in Holyrood and not just under the SNP. What the Government wants it tends to get.

Fair and well, you might say that’s democracy. But democracy also rests on the separation of powers, and not just between government and prosecution service but government and the courts. The historic tripartite split has been between government, parliament and courts. Whatever lapses may be made by the first two should at least be able to be challenged by citizens in the third. But if the former take command of the latter then you’ve a problem.

Just how they managed to contrive this mess is rather hard to fathom. Law has become much more of a business than a profession in recent years. But still being driven by the Competition and Mergers Authority seems rather strange for what’s a fundamental tenet of our civic society. The Law Society perhaps pushed by more commercial lawyers seem to have forgotten the adage of beware of what you wish for.

Thankfully it’s now resulted in a huge backlash. The Dean of the Faculty of Advocates and other leading court lawyers haven’t been shy in coming forward to condemn it. More importantly, the Lord President supported by all the Judiciary has lambasted it. Given regular discussions that take place between Government and their Lordships it can only be assumed that the former ignored the latter who’d been making clear their objections long before launching the final rocket.

Lawyers are officers of court. Trust is given and an ethos maintained through that. Ultimate direction is from the Lord President and it cascades down. They’re entirely separate from Government and its about adherence to the rule of law, not dictat from politicians. If that’s eroded not just ended, it undermines the integrity of the profession, as well as driving a coach and horses through the separation of powers.

The Government should bin this fast.