The Faculty of Advocates has come out fighting in its response, published today, to Ben Thomson's review of rights of audience in the supreme courts (click here for news report).

We can take it that the Faculty was none too impressed when the criminal appeal court's original strictures against the solicitor advocate system were successfully converted, following lobbying from the solicitor side, into a review of the whole question of rights of audience. But like it or not, the judges' criticisms of those involved in the Woodside case, which started the whole process rolling, were regarded by many solicitors as inaccurate and unfair, and the Faculty does its members and the wider profession a disservice in failing to look beyond these.

Thomson adopted as the basis of his approach:

  • a universal standard examination for admission as a "pleader" in the supreme courts, with all pleaders being reviewed on a regular cycle;
  • a single code of conduct for all pleaders;
  • an enhanced complaints process with a single process for advocates and solicitor advocates.

One would have thought these were desirable objectives in principle – particularly having common standards of admission and conduct for all who seek to appear before the higher courts – and it is not immediately obvious how they necessarily cut across the existence of an independent referral bar.

The Law Society of Scotland too has its reservations about some aspects of the proposals, but Thomson is expressly about setting out the broad approach and leaving it to the professional bodies to work out the details.

If the Faculty insists that its training is "far superior" to that required of a solicitor advocate, why is it making such a big issue of what Thomson proposes? Would it not be in its interests to push for solicitor advocates to demonstrate that they are of equal standard? If it does not favour a common standard, it has to accept that solicitor advocates may not achieve the same standard.

The Law Society of Scotland is responding to the challenges posed by the prospect of new forms of legal advice service by working to enhance the reputation attached to the term "solicitor" and to set it apart from the other providers who may be competing for the same work. The Faculty has in large measure succeeded to date in preserving the way it operates in the Legal Services (Scotland) Bill, but already faces competition for representation work. If it could accept this reality and adopt a similar approach to promoting and enhancing its brand of "advocate", rather than appearing to fight over again the battles of 20 years ago that led to solicitor advocates being recognised, it would have more chance of being seen to be in tune with the times while preserving its unique ethos.