WHEN it comes to reforming Scotland’s legal system there’s a long list of things we could do to improve access to justice and legal services.

In various parts of the country, people have difficulty finding a solicitor who will undertake criminal or civil legal aid work generally – such is the growing disparity between legal aid rates of pay and private fees. If you can’t find a lawyer, how can you access justice?

There’s the harsh reality that citizens often don’t know about a right or remedy and even if they do, they may need to locate a specialist solicitor.

Organisations such as community law centres undertake various areas of unmet legal need, but their funding has been squeezed over the years and not all parts of Scotland have such services.

We have areas of law where it’s incredibly onerous or impossible to secure legal aid for court proceedings – like opposing the closure of a community facility or challenging planning decisions which are prejudicial to the local environment.

What then is the big priority for the Scottish Government’s Regulation of Legal Services (Scotland) Bill?

The Bill is presently at stage one consideration before Holyrood’s equalities, human rights and civil justice committee.

You might think a good priority would be for Scotland to achieve full compliance with the United Nation’s Aarhus Convention on environmental justice.

At present, we fail under Article 9(4) of the convention for access to justice in environmental matters not to be ‘prohibitively expensive’.

Remarkably, the Scottish Government’s key priority is to seize control of the regulation of the legal profession for itself.

Ultimately the Bill would give Scottish ministers the power to make regulations and issue directions to legal profession regulators by setting performance targets; directing action to be taken; publishing a statement of censure; imposing a financial penalty; and making changes to, or removing, some or all of their functions.

The Bill does some updating and reforms in other areas but it’s important to recognise these have largely all been updated just over a decade ago.

The 2010 Legal Services (Scotland) Act introduced the so-called “Tesco law” reform – the idea that law firms should be owned by non-lawyers by up to 49% of the firm’s equity as this would “open up competition”. Such firms would be known as “licensed legal service providers” (LPs).

Tesco law reforms have been so ineffective in Scotland that there haven’t been any LPs in the 13 years after the 2010 Act, although it’s understood the scheme is due to come online later this year. What difference these reforms might make is anyone’s guess?

The 2007 Legal Profession and Legal Aid (Scotland) Act introduced wholesale reform of complaints against members of the legal profession – with the creation of the Scottish Legal Complaints Commission, funded by practitioners.

We are essentially left with a power grab for Scottish ministers. This appears to be a proclivity of Holyrood over the last decade or so. A centralised police force and fire service with boards under the auspices of Scottish ministers; the desire to do the same for social work and social care services with a proposed National Care Service.

The pros and cons of past power grabs can be debated; certainly, many ministerial interventions over the last few years have been expensive calamities. Yet, there is a more fundamental reason why Scottish ministers should have no control over our legal profession.

This is eloquently encapsulated by Scotland’s Court of Session and High Court judges’ response to the Bill consultation. The unanimous statement of all senior judges said: “An independent legal profession, and an independent judiciary, is central to the rule of law.

The protection of the public from the arbitrary abuse of power by the state depends upon it. Political regulation of the legal profession is not appropriate.

“These proposals are a threat to the independence of the legal profession and the judiciary. It is of critical constitutional importance that there is a legal profession which is willing and able to stand up for the citizen against the government of the day.

"The judiciary is fundamentally opposed to this attempt to bring the legal profession under political control.”

Many Scottish solicitors agree with the judiciary’s concerns. The Law Society of Scotland said: “These powers, which we have not been able to identify in any other Western democracy, risk seriously undermining the rule of the law and the independence of Scotland’s legal sector from the state.”

We have numerous examples of what can happen when governments have control over a country’s legal profession. Examples of political interference in the legal profession in Belarus have been well documented following the 2020 presidential elections.

Why would anyone want to damage the world-class reputation that the Scottish justice system enjoys for independence and adherence to the rule of law?