NEWS

I would like to offer a particularly warm welcome to all our visiting members of the judiciary.  Not least to The Right Honourable Dame Siobhan Keegan, Lady Chief Justice of Northern Ireland, The Right Honourable Lady Justice Thirlwall, Lady Justice of Appeal in England and Wales and the Honourable Mr Justice Barniville, President of the High Court of Ireland.  They have not travelled quite as far as the Honourable Justice Boddice, who joins us from Queensland, Australia.  We are very grateful for you and your colleagues being here.  

It is fitting that we gather today in the Mackenzie building, the heart of learning for members of the Scottish bar, the Faculty of Advocates. Like our profession, the building has had to change and adapt over time to suit the needs of its users. The Mackenzie building was designed and built as one of ten schools of the George Heriot Trust. The Trust educated thousands of children in Edinburgh free of charge. As the population in Edinburgh’s old town dwindled, the building was repurposed to become the wire works of Smith Fletcher and Company during the 19th century. Remnants of this chapter of its history are still visible on the stone walls of Old Assembly Close. The Faculty of Advocates acquired the building in the late 20th century, when it was initially used as a book store for the Advocates Library. 

The building’s namesake, Sir George Mackenzie of Rosehaugh, was Dean of the Faculty of Advocates. He founded the Advocates Library in Parliament House (where we will dine this evening) and, as a former Lord Advocate, served as the head of the prosecution service in Scotland. He earned the nickname “Bluidy Mackenzie” from his reputation as a persecutor of the Covenanters. 

You will hear tomorrow from Claire Mitchell KC and Zoe Venditozzi, on the fascinating subject of the witch trials in Scotland. Claire’s research into Mackenzie’s life was instigated by a case in 2004. Two teenagers broke into the Mackenzie Mausoleum in the Greyfriars Kirkyard, only a short distance away. The boys forced open Mackenzie’s coffin, stole his skull and played football with it. Claire’s research uncovered Mackenzie’s involvement in the defence of numerous so called “witches”. During his time as Lord Advocate, Mackenzie reduced the number of witch trials, a measure which history recognises saved many innocent lives.  

Today, the Mackenzie building has been restored to a classroom for our Scottish advocates. The Faculty of Advocates is the day-to-day regulatory body for advocates. Not only is it responsible for the education and training of advocates, it also deals with the professional practice, conduct and discipline of its advocate members.  

The central purpose of this conference is to encourage dialogue on issues of importance which are common to all of our jurisdictions.  One of the most important of those is preserving the independence of the bar and the wider legal profession.  An independent legal profession, and independent judiciary, are central to the rule of law. The protection of the public from the arbitrary abuse of power by the state depends upon it. It is crucial to the rule of law, and therefore in the public interest, that there always be access to independent, objective, legal advice. Only by retaining that independence can we ensure that the public have confidence that their cases are handled objectively and fearlessly. 

In Scotland, the Court of Session is the ultimate regulator of the profession. The Court decides who may appear before it and only if the Court has ordered it can a person be appointed to, or removed from, the public office of advocate.  Any rules which the Faculty makes about regulating the professional practice, conduct and discipline of advocates must be approved by the Court of Session, or the Lord President, acting on its behalf.  I must also approve similar rules which are made by the Law Society of Scotland in relation to solicitors.

The Court of Session’s role in regulating the legal profession in Scotland was recently threatened by the Regulation of Legal Services (Scotland) Bill.  Unbeknown to the judiciary, the Bill initially proposed to give the Scottish Ministers powers to regulate lawyers directly and supplant some of the day-to-day regulatory bodies, such as the Law Society of Scotland.  The Bill also sought to remove aspects of the Court of Session’s oversight of the legal profession and impose the Scottish Ministers as a co-regulator, alongside the Lord President.   

The judiciary was fundamentally, and unanimously, opposed to this attempt to bring the legal profession under political control.  Given the serious constitutional concerns the Bill posed to the rule of law, it was necessary for the judiciary to respond publicly to the Parliament’s call for views on the Bill.  Put simply, the rights of clients, who are the ultimate consumers of legal services, to obtain legal advice, had to be protected from interference by the government.  In the judiciary’s view, the only way to ensure that lawyers, including advocates, could stand up for the individual, against the government of the day, was for the Court of Session, to remain as the ultimate regulator of the legal profession in Scotland.   

The Scottish Government listened to our concerns.  The Regulation of Legal Services (Scotland) Act 2025 was passed this time last year. The Bill was substantially amended during its parliamentary passage to remove the provisions which the judiciary considered undermined the rule of law.  A wide range of new regulatory functions, that had initially been proposed for Ministers, were also transferred to the Lord President.  Among other things, the Lord President was given powers to review the regulatory performance of the Faculty of Advocates, and other regulatory bodies, and impose sanctions on them; all with the aim of improving regulatory standards within the profession. 

The new legislation has increased the scrutiny of how the legal profession in Scotland is regulated and there has been considerable debate on who should regulate it.  Not just from within the profession. There is now fervent interest in this subject in the Scottish Government, the Scottish Parliament, consumer groups and also the media. These questions are likely to remain and intensify once again over coming years.  Not least because the 2025 Act will be reviewed in ten years from when it is fully commenced. 

The Faculty of Advocates, and other regulatory bodies in Scotland must, therefore, remain vigilant about the intensified public debate and interest in these matters. The challenge for all regulatory bodies, including the Faculty, is to ensure that the voice of consumers of legal services, as well as lawyers, is listened to and taken account of in how the profession is regulated.  

The Court of Session is also under more scrutiny in relation to how it oversees the regulation of the profession.  In exercising regulatory functions on behalf of the Court, it is crucial, therefore, that I continue to act in a transparent and accountable way. This intensified interest also means it is important that the Faculty, other regulatory bodies and the Court, endeavour to ensure that the public, and those who are interested in regulation, understand that I am fully independent from those whom I oversee. It is also important that we continue to educate all concerned as to why it is essential that the Court’s role as the ultimate regulator of the profession must prevail.

Given the serious threat that was initially posed to the independence of the legal profession in Scotland by this new legislation, the technological innovations that are becoming more readily available to us, and the increase in the use of social media, it is timely that this Conference draws together our barristers, advocates and members of the judiciary to talk about these matters and other challenges that we face. This is of vital importance in an age where technological advances do not respect the pleasantries of jurisdictional boundaries. Many of the topics for discussion today reflect this. Our laws must be suitably adaptable and flexible to meet the needs of modern-day society. 

Just as the wire works factory of the 19th century would be obsolete today, laws and practices that do not evolve to meet today’s challenges will be outpaced and left behind. Collaboration and sharing our experiences are imperative to tackling today’s fast-moving societal issues and protecting the rule of law. 

I hope this Conference provides a forum to address our common challenges and to build the connections that allow our jurisdictions to interact more seamlessly. 

I wish you all an enjoyable stay in Edinburgh and I look forward to speaking with many of you throughout the day and this evening."