The introduction of a Scottish Parliament will keep lawyers busy, says Mike Dailly.
Those lawyers who think that devolution will have little or no impact on their daily routine should consider this: 129 politicians are gathered together and left alone in a large room in Edinburgh; they are told they can initiate, amend or repeal any laws in Scotland – excluding a few areas reserved to Westminster. What will happen?
For the first time in almost 300 years, law reform in Scotland looks set to crunch out of first gear and move into overdrive. Of course, law reform has always been an occupational hazard on both sides of the border. Every minute spent trying to keep on top of legal changes is a minute less on casework. And lawyers do not get paid to absorb legal developments as they are assumed to know everything about the law.
Until now, the pace of Scots law reform has been set by the heavy demands placed on the Westminster Parliamentary timetable. But the prospect of a Scottish Parliament, devoted to Scots law, means that parliamentary time will be in abundance. Has anyone ever heard of a politician who is devoted to the status quo?
Scottish solicitors need not be pessimistic about this. For many years now, numerous interest groups, including the Scottish Consumer Council and the Scottish Legal Action Group, have called for a full and substantial review of the civil justice system. While civil justice in England and Wales has benefited from the Woolf report and an extensive review of legal aid as initiated by the former Lord Chancellor, Lord Mackay, there has been little activity north of the border.
Housing and social welfare law in England and Wales has prospered. The professional advice sector has taken on an enhanced role with the advent of legal aid franchising. This in turn has benefited the legal aid consumer and the legal professional as a whole, with a fuller complementary service being provided to the public.
North of the border there has been little or no substantive change to the status quo. This has not been due to a lack of demand or political will; it has more to do with the fact there is only so much parliamentary time available to the Scottish issues. Accordingly, priorities have to be set, and for much of the last few years a priority has been criminal justice and criminal legal aid – resulting in the Crime and Punishment (Scotland) Act 1997.
A Scottish Parliament represents a vehicle for the radical analysis of the entire Scottish legal system. Included within that analysis must be consideration of alternative forms of dispute resolution. At the moment, Scottish civil legal aid is dominated by matrimonial disputes. Yet the sheriff court has become an expensive forum for the resolution of disputes. Is it necessarily the appropriate forum for all civil cases? The role of arbitration, mediation and conciliation might have a critical role to play within a new civil justice system.
Should accessing justice always mean having to go to court? Should legal aid always mean having to see a solicitor? If the courts system is out of the price range of many ordinary citizens then a new Scottish Parliament would be in an ideal position to look at alternative solutions.
For example, the small claims system in Scotland was originally designed to be citizen friendly. However, it has become a judicial forum for professional debt collection. Businesses and companies employ solicitors to raise or defend small claims actions, while the lay person is not entitled to legal aid. There is no equality of arms. A Scottish Parliament could oversee the creation of a system that meets the needs of the ordinary citizen.
A new Scottish Parliament will be much more than a talking shop. Unlike the Scotland Act 1978 which specifically defined the powers of the Parliament, the current White Paper provides for a much more powerful legislature. The Scottish Parliament will be able to legislate in any area of law subject to the UK-reserved areas of defence, foreign policy, employment and social security law. What could this mean?
In short, it is entirely likely that a Scottish Parliament will, in the years to come, radically alter Scotland's legal landscape. While Scotland and England share many common areas of statutory law – such as taxation or company law – it seems likely that the distinctive system of public and private law in Scotland will flourish under a Scottish Parliament.
It is highly probable that a Scottish legislative chamber would ensure that many areas of Scots law and procedure diverged from English law, as and when particular Scottish solutions were applied to particular Scottish problems. Cultural distinctions north of the border could also lead to a divergence in political policies. For example, there would be nothing to stop a Scottish Parliament amending the Housing (Scotland) Act 1987 so as to do away with the right to buy.
The only certainty that devolution brings is that lawyers will be kept busy in Scotland – albeit in unbillable time in coping with a rush of law reform.