The Lord Advocate's keynote conference address, challenging the profession to see the rule of law as as a concept in the service of the community as well as one to direct the work of Government

Good morning everybody. Can I just say how delighted I am to be sharing a platform with the Attorney General, and to thank her for her stimulating remarks and very kind observations. It’s a great pleasure to see her here and to welcome her to Scotland.

[The Lord Advocate thanked the chairman, Lord Cullen, for his introduction, and Richard Henderson for his invitation to deliver the address, and continued:]

But most of all can I say what a pleasure it is to be here at this, the 60th anniversary conference of the Law Society of Scotland. You have a fascinating programme lined up for you over the next day and a half, which is only fitting on such an auspicious occasion. What a time to be “Shaping the Future”! And how far the Society has come since its inception in 1949, when the world, and the profession, were very different. In the first place there were only about 3,300 solicitors in Scotland, a number which had more than trebled by 2007. And in those days the overwhelming majority of law students and entrants to the profession were men – a situation which was rectified some years ago now. Indeed in 1949 the idea of two women Law Officers would have been as unlikely as the idea of a man landing on the moon.

There have been many other changes since 1949 which would make the modern profession unrecognisable to a solicitor from 1949 – many of them perhaps capable of being regarded, if you were in a negative frame of mind, as creating threats rather than opportunities. And that is not to mention the current difficult economic circumstances which impact on solicitors both because they are themselves businesses and because their clients are affected too.

But in all that, as your President has said, “The reputation of the profession has stood the test of time. Now, as then, solicitors operate at the heart of civic Scotland, upholding the rule of law, enhancing the business community and providing a valuable contribution to the democratic process. Perhaps, above all, the profession serves the community in which it practises.”

If Richard will forgive me, that’s the text I’d like to take for this sermon. Despite the difficult economic circumstances and the changes and challenges facing the profession, and the issues which arise around such matters as the nature of regulation and alternative business structures, there is I think a sense of determination and outward-looking perspective about the profession, which is exemplified in a conference entitled “Shaping the Future” and indeed covering such a wide range of topics. I’m sure Richard is right to emphasise, as he did this morning, that there are real opportunities for the profession to adapt and move forward. A renewed emphasis on regulation and quality assurance in these troubled times may be a particularly useful selling point.

But before you all start Shaping the Future this weekend, I want to just step back for a moment and look at the bigger picture. Yes, of course, in many cases solicitors operate as part of a business and face the same economic pressures as any others in a competitive market. But you are never just businesses. You are all part of a profession which remains committed to a core set of values and ethics and to an exacting regulatory framework; and as the editor of your Journal has recently written, you have a crucial role “in protecting the interests of those who would otherwise be left with no voice to demand justice”.

That too is part of my theme this morning, in which I want to reflect just how we all, as lawyers, contribute to the fundamental values of the rule of law.

Elusive concept

The Attorney has spoken already about the rule of law and the way in which her office in particular serves that ideal. Your President, in the text I quoted a few moments ago, also referred to the role of solicitors in upholding the rule of law.

Now, the rule of law is, as the Attorney General indicated, one of those concepts that is frequently mentioned. Sometimes however, as the Attorney has mentioned, it is a little difficult to know exactly what it means. Forests worth of paper have been consumed by legal philosophers seeking to give the term content…. It may be that, like justice itself, it can have many meanings, but that doesn’t stop us from invoking it. Nor does it prevent us from recognising that some situations and circumstances are better examples of it than others.

Indeed the “rule of law” is a term which has concrete legal reality in the United Kingdom. The Constitutional Reform Act of 2005, in ss 1 and 17, makes express reference to “the existing constitutional principle of the rule of law”, although it does not define it. Some have suggested that the term is simply not justiciable, but in an illuminating address in 2006 Lord Bingham of Cornhill has argued that “judges … are not free to dismiss the rule of law as meaningless verbiage, the jurisprudential equivalent of motherhood and apple pie”.

With very great respect to so eminent a jurist, I am sure Lord Bingham was correct. If the rule of law is an empty concept then one might ask what exactly is being done by the Rule of Law Index of the World Justice Project, which is in effect a mechanism designed to measure the extent to which the nations of the world adhere to “the rule of law”. It starts with four principles:

1. The government and its officials and agents are accountable under the law.

2. The laws are clear, published, stable and fair, and protect fundamental rights, including security of persons and property.

3. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient.

4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

These principles are subdivided into a large number of sub-principles, which I am obviously not going to elucidate on here. Lord Bingham, in the speech I mentioned, also made an attempt to elaborate what the principle of the rule of law might mean. The core, he said, is “that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered by the courts”.

He went on to break that proposition down into eight sub-rules which are worthy of repetition:

1. The law must be accessible and, so far as possible, intelligible, clear and predictable.

2. Questions of legal right and liability should ordinarily be resolved by the application of the law and not the exercise of discretion – arbitrariness is the antithesis of the rule of law.

3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.

4. The law must afford adequate protection of fundamental human rights.

5. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.

6. Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers (“the core of the rule of law principle”).

7. Adjudicative procedures provided by the state should be fair.

8. The state should comply with its obligations in international law.

Now whether or not it is possible to dissect that list and to argue, as some no doubt would, that it is simply a reflection of a particular set of value judgments, it seems to me that it is as good a description of the general principle as you are likely to find. And, while both Lord Bingham’s list and the World Justice Project principles primarily appear to be directed at the state, as lawyers we all – you all – have responsibility for ensuring the health of the rule of law.

Role of the Law Officers

The Attorney has given us a fascinating insight into the way in which Law Officers play a central part in ensuring that Government complies with the rule of law, and speak for law at the heart of Government.

While the context is different, my own position has many similarities with that of the Attorney – and indeed most if not all governments have some kind of Law Officer equivalent. I am the principal legal adviser to the Scottish Government; I am the head of the systems of prosecution and investigation of deaths in Scotland; and I have a range of what might be described as “public interest” functions.

The position of Lord Advocate, which originates in the 15th century, was subject to express statutory provision in the context of the devolution settlement. The Scotland Act confirms that the Lord Advocate is head of the systems of criminal prosecution and of the investigation of deaths in Scotland. That remains the continuing situation, as it was prior to the enactment of the Act. Indeed s 48(5) of the Scotland Act expressly provides that any decision of the Lord Advocate in that capacity “shall continue to be taken by him [it says him] independently of any other person”. That is an independence of which I – and my predecessors – have been fiercely protective. Without a strong and independent prosecution service a state fails in its obligations to maintain the rule of law in two senses.

First, in the protective sense: the rule of law, at its most basic, is to be distinguished from the rule of men – the Hobbesian “state of nature” in which might is right. It is a long time since blood feud was replaced in Scotland – or most parts of it at any rate! – by a centralised system of prosecution whereby the state implements its fundamental duty to maintain the peace and protect its citizens from violence and intrusion. It does so by displacing self-help and retribution and by prosecuting crime in a measured way in the public interest.

Joint action

Nowadays, with the growth of new forms of serious and organised crime, and cross-border problems like cyber crime, trafficking and terrorism, there is a call for a sophisticated and flexible response. Today, as the Attorney has confirmed, your conference provides the most appropriate venue for both of us to demonstrate this first principle in action: we shall sign a public joint statement on handling terrorism cases where jurisdiction is shared by prosecutors in Scotland, in England & Wales and Northern Ireland. Terrorists, as we have learned, rarely restrict themselves to one convenient jurisdiction.

We must meet that challenge, and s 28 of the Counter-Terrorism Act 2008 is our response. We will work together to investigate and prosecute these cases. We have done so many times in the past;

s 28 simply makes it easier for us to do so. Indeed the prosecutions following the Glasgow Airport and London attempted bombings were an example of closer working.

It is a change which I and my predecessor as Lord Advocate have sought for some time, and my resolve was strengthened by the attack on Glasgow Airport in 2007.

The decision at the time to work together with the Attorney and Crown Prosecution Service and the Metropolitan Police resulted in a successful joint investigation and prosecution by the CPS. But it was questioned at the time. People asked “Why?” Similarly, they will ask “Why?” about the new provision in the 2008 Act.

I hope that our joint statement today is our answer – it sets out how we will take decisions about the investigation and prosecution of such cases. By making this agreement and doing so publicly, I am convinced that we strengthen the rule of law. It also gives me the greatest pleasure to do so at your conference.

Independence in action

Apart from the protective duty, a strong and independent prosecution service is also central to the rule of law ideal because, as the rule of law sub-principles expressly recognise, prosecutors themselves must be both independent and accountable, and must broadly reflect the makeup of the communities they serve. They must not act arbitrarily, oppressively or unfairly, or merely as an extension of the Government of the day or in response to tabloid pressure or popular prejudice. While a modern prosecution service will listen and explain much more readily than it might once have done, so far as it is possible to do so the prosecutor must seek to act in what he or she conceives to be the public interest in the broadest sense, in a considered, clinical and independent fashion. While prosecutors have to deal with new problems which give rise to public clamour for protection, they must also make sure that they do not react in a way which itself threatens the rule of law.

But the rule of law is of course not merely about having an adequate system of criminal justice which protects the citizens without being simply an extension of the Government of the day, or a sophisticated form of lynch law.

There is also a civil aspect to my role, which is less explicitly enshrined in the Scotland Act but which arises in part from it nevertheless. As well as being the head of the systems of prosecution and investigation of deaths, I am as I have said also the chief legal adviser to the Scottish Government. Like the Attorney in her sphere, I am responsible for the provision of legal advice to the Scottish Government and for enabling it to comply with its self-imposed duty to act in accordance with law. The Scottish Ministerial Code, which provides guidance to ministers on the exercise of their ministerial functions, under the Scotland Act, is explicit on the point:

“In the performance of their duties, Scottish Ministers are expected to behave according to the highest standards of constitutional and personal conduct... The Code should be read against the background of the duty of Ministers to comply with the law, including international law and treaty obligations; to uphold the administration of justice; to observe the [principles of ministerial conduct set out in the Code]; and to protect the integrity of public life…”

Central to Government

The rule of law is, or should be, central to any Government; but it is particularly true of the Scottish Government which, since devolution, has been subject to an explicit vires framework which prescribes its competence and the legislative competence of the Scottish Parliament. The Scotland Act limits that competence by reference to a number of factors, but in particular by reference to the rights conferred by the European Convention on Human Rights, European law, and a list of reserved matters set out in the Act.

But again the rule of law is not just about adherence to the constitutional framework. Questions about legality and vires arise every day in the business of the Scottish Government. Legal advice is provided by the lawyers of the Scottish Government Legal Directorate, for whom I have ministerial responsibility, just as their colleagues in the Government Legal Service for Scotland provide advice to other elements of “government” in Scotland.

In their daily roles these lawyers work to ensure that the rule of law is embodied in the work of Government, advising ministers and policy colleagues on what can and cannot be done. Of course like all of you they are a creative and constructive bunch, who are keen to help and will work hard to find ways of lawfully achieving ministerial policy. But, just like their counterparts in the rest of the UK, they are also sometimes required to point out the limits on Government action. The public will rarely if ever get to hear of this, but in these ways Government lawyers serve the ideal of the rule of law. So do the Law Officers themselves, both as principal legal advisers in cases of particular complexity or sensitivity and as members of the ministerial team.

Health of the profession

All this is important, but perhaps you are still wondering what this has to do with you. Well, all that was simply by way of a prologue. The rule of law is not just an abstract and possibly rather vacuous concept; and it is not simply of obscure relevance to Government lawyers and constitutional anoraks (categories which of course overlap). No – the rule of law is something which concerns all of us, and all of you, and before you start these deliberations over this weekend I want to take this opportunity to invite you to reflect on that at the outset of this fascinating conference, when you are – as your President has invited you to do – going to help with the telling of the story and the building of the future of the profession.

There are two aspects to this in which you, and your Society, can take pride. First, at the wider societal level, the existence of a robust, healthy and independent legal profession is absolutely central to the rule of law ideal. It’s not just that there must be lawyers who are in particular willing and able to challenge the actions of Government, to hold it to account, and to defend those accused of crimes. Nor is it only that it is crucial that there should be lawyers who are willing and able to challenge the privately powerful, however mighty, on behalf of the weak, although that too is essential. Without lawyers who will vindicate rights, those rights are worthless.

At the societal level it is also the case that a strong and independent profession can provide comment and advice to Government and the Parliament itself, in a way which contributes significantly to the democratic process by ensuring that more than one voice is heard and that the legislators are equipped with the point of view of those on the front line. As many of you will have seen, the convener of the Parliament’s Justice Committee, Bill Aitken MSP, has commented in warm terms in the anniversary edition of the Journal on the great contribution the Society makes by providing thoughtful, authoritative and independent advice in the legislative process – even if it is not always accepted!

But leaving aside what may still seem like relatively abstract concerns, in your day jobs each and every one of you is an agent of the rule of law in its broadest sense.

It’s easy to knock lawyers; we all know plenty of the jokes about sharks not eating lawyers out of professional courtesy and respect. But we must not lose sight of the fact that law is one of the great underpinnings of civilization, and that each and every lawyer, whatever their specialism or area of practice, plays a part in making society work peacefully: in channelling conflict; in enabling citizens to conduct their business (in the broadest sense) in accordance with shared and broadly agreed rules which allow predictability and stability, in the expectation that their agreements will be complied with and in the last resort that their contracts will be enforced; in ensuring that they are secure in their property, homes and private lives and that neither the state nor anyone else will intrude upon them except in accordance with rules which are reasonably clear and accessible and have been collectively and democratically endorsed.

Nothing is alien

You all oil the wheels; you all make it work. You can and you should take great pride in that. As the Law Society of Scotland’s motto itself recognises, “Nothing concerning humanity is alien to me; I am interested in everything concerning mankind”.

And it is true: lawyers are exposed to all of life’s problems, and are very well placed to do what can be done either to minimise and avert them, or to solve them if they cannot be avoided. In this way you make the rule of law work.

And in speaking of your role as agents of the rule of law, one of the recurrent themes is access to justice. The rule of law is only theoretical if legal remedies are not in fact available.

The Attorney referred to pro bono work as it is carried out in England, and she has to be commended for her energy and commitment in driving forward its continuing development in England & Wales as well as across the Commonweath. Before I close, and let you get on with your conference, I’d like to say a few words about the position in Scotland. Like the Attorney, I have always thought that the provision of pro bono legal assistance is a worthwhile and important element of legal practice.

While it is in no sense a substitute for a properly funded system of legal aid, there will always be cases and situations which are not covered by such a system, where legal input is valuable. The provision of pro bono assistance can play a vital role in enhancing access to justice, while allowing lawyers to “put something back” and to make a real difference to people’s lives. There are many marvellous initiatives in Scotland under which legal services are provided pro bono, and indeed not much of a light has been shone in the past.

I know of course that many firms of lawyers have corporate responsibility programmes which they take very seriously. Without wanting to single anyone out, it would be remiss of me not to mention Strathclyde University Law Clinic, which only the other week won the award for “Best Contribution by a Law School” in the UK-wide LawWorks & Attorney General Student Awards. There are many other examples, and much good work being quietly done; but I would particularly like to draw to your attention the initiative recently commenced by Ian Moffett of Anderson Strathern to establish in Scotland an arm of the legal charity LawWorks, which serves to arrange the provision of pro bono lawyer hours to frontline advice agencies such as the citizens’ advice bureaux. Within the Government Legal Service for Scotland too we have recently taken steps towards a greater degree of co-ordination of the pro bono work which Government lawyers undertake.

I am proud of that initiative, and I would like to encourage you all to consider whether, if you are not already doing so, there are ways in which you would want to make a contribution in this area.

To encourage greater awareness of pro bono opportunities in Scotland I hope to have a conference this autumn and I trust the profession will respond as positively as I anticipate they will.

But most of all, as you go off to think big thoughts about the future of the profession and enjoy a wonderful variety of sessions, I’d like you just to remember that behind all the discussions about governance or regulation, structures of justice, particular areas of law or just the pressing need to conduct a successful business, what you do is important in a very fundamental sense and, if I can quote from the Journal once more, and from the great Scottish luminary Austin Lafferty: “The whole nation is underpinned by a profession that is both essential and beneficial to its wellbeing.

A strong profession is good for a strong Scotland.”

Thank you very much indeed.

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