Asked about the issues currently exercising the minds of the legal profession, Roddy Dunlop, Dean of the Faculty of Advocates, does not have to think long. “The unprecedented weight of business,” is his unhesitating response.
That weight of business is particularly pressing in the criminal sphere as the profession continues to play catch-up on the backlog caused by Covid pandemic. That backlog has led to the Scottish Courts ramping up the number of jury trials running in serious cases.
“Whereas previously it would have been unusual to have more than 12 courts running jury trials at any given time, it’s now regularly 20 or so and, when you have various big cases with multiple accused, that places a considerable pressure upon the criminal bar,” he said.
“There are only 450 practicing advocates in Scotland and of those only a quarter specialise in the criminal sphere, so there’s been a huge weight of business on criminal practitioners, which we’re coping with, but that does bring its own pressures with consequent requirements on the Faculty to think about wellbeing initiatives and making sure people are supported.”
And in the civil sphere, the weight of business is equally unprecedented, being driven by the prevalence of public inquires currently underway, including Scottish involvement in the UK Covid inquiry; the Scottish Covid inquiry; Scottish involvement in the infected blood inquiry; the Sheku Bayoh inquiry, and the possible Emma Caldwell inquiry. Other inquiries earmarked include those into the collapse of Rangers Football Club and the prosecution of Whitehouse & Co.
There are various ways that the Faculty has sought to address this backlog. Within the criminal sphere it has encouraged the growth of the criminal bar, resulting in one of the biggest annual intakes of ‘devils’ or trainee advocates.
“Whereas recent years have seen only a small proportion of devils from a criminal law background, this year around half have come from there, with many from the fiscal service who’ve decided to come to the bar because of the freedoms and the opportunities they don’t necessarily find in employment,” said Dunlop.
In addition, the Faculty has been recruiting at a senior level. Last year Richard Goddard, former Principal Crown Counsel and a KC took silk as a solicitor advocate, and this year Angela Gray, shortly after taking silk as a solicitor advocate, was admitted before going straight into business representing rugby player Stuart Hogg in his domestic abuse case.
Dunlop emphasises that such senior appointments have been vital at a time when the Faculty has lost senior personnel, such as Ronnie Renucci, who had been vice dean for four years before going to the bench.
“We’ll continue to canvas solicitors operating in the criminal sphere, many of whom are unhappy because of problems with legal aid [Scotland’s legal aid system is in ‘deep crisis’ and requires urgent reform, the Law Society of Scotland has said] that are far worse for solicitors than they are for the bar, and we’re seeking to make them aware of the opportunity to come to us,” he said.
“While enrolling in the Faculty requires solicitors to undertake the devilling period, the benefits are considerable in terms of lifestyle and opportunity.”
Not only is an injection of fresh blood needed to help the Faculty address the pressing weight of business, but also to provide much-needed reinforcements in the seemingly perpetual battle within which the legal profession presently finds itself engaged with the Scottish Government over its independence and the critical importance of the rule of law. This is a battle in which Dunlop has found himself in the vanguard.
“It’s symptomatic of governments, who are increasingly prepared to step into situations where, the legal profession would argue, they shouldn’t be going,” he said.
“There’s an ongoing battle with regard to suggested innovations in the regulation of the legal profession, and I’ve been involved in that discussion since the Roberton Report in 2017, arguing that some of the innovations are welcome and working with the Scottish Government to implement them, but some of the suggestions stepped well over the line and into a situation in which, quite remarkably, the judiciary felt the need to enter the fray to say that some of these proposals would impact on the independence of the legal profession.”
Dunlop quotes an Australian judge who famously said: ‘If you don’t have an independent legal profession, you don’t have an independent judiciary and you don’t have a rule of law’, and says it is fundamental that the Faculty continues to fight its corner.
“The legal profession is regulated by the Faculty of Advocates but, ultimately, by the Lord President who, as the head of the judiciary, is quintessentially independent, and independent particularly of government,” he said.
“The suggestion that the entire legal profession be placed under the auspices of an independent regulator, which would ultimately be answerable to the Scottish ministers, was seen by the judiciary as an unwarranted interference with our independence, making us answerable to a body which wasn’t itself answerable to the Scottish ministers.”
Proposals on the reform of regulation of the profession effectively allowed ministers in certain defined circumstances to take control of the legal profession in the event that it didn’t agree with what it was doing – a proposal which Dunlop describes as “frankly terrifying”.
“It was being presented that this would only happen in remarkable situations, but there should never be any situation in which a government should be able to take control of a legal body because that is a massive entrenchment across the necessary separation of powers and erodes the independence of the legal profession, which must be independent in order that it can challenge government in the event of the government abusing its own powers,” he said.
The lines of battle, it seems, have been drawn. And if any devils are inclined to enter the fray, Dunlop is convinced that Faculty offers an attractive proposition.
“The message I give to all the devils when they call is that they are joining Faculty at a time of great pressure but also of great opportunity,” he said.
With more devils than before on the Faculty’s side, the Scottish Government looks like it has a battle on its hands if it remains committed to the fight over the legal profession’s independence and the rule of law. As ever, the devil will be in the detail.