"The Thomson Review into the Rights of Audience in the Supreme Courts in Scotland has been urged to ensure that the current practice of High Court Judges remaining member of the Faculty of Advocates after their appointment to the bench should cease.
"Solicitor Advocate Frank Maguire, senior partner of Thompsons Solicitors also argues that their Lordships should no longer have any role in the appointment of the Dean of Faculty and that they should be stripped of their exclusive role in the appointment of QCs.
"Mr Maguire also backs the panel’s recommendation that the Dean of Faculty’s role as conduit for the judiciary to communicate any concerns they might have on the quality of Advocates should be paralleled by a similar appointment to cover Solicitor Advocates.
"In his submission he states:
"The Reviewers throughout have obviously considered the role of the judiciary in respect of advocacy. It is our view however that the relationship of the judiciary to those having Rights of Audience in the higher court should be better laid out and defined. On the one hand the judiciary should have a concern about the advocacy before them, not least because they rely on it, but on the other hand advocacy needs to be sufficiently independent from the judiciary to carry out its task. The judicial function should not be confused with that of advocacy.
"It is the function of a judge to consider the evidence, decide on issues of relevancy, the law in question and decide on the issue(s) between the parties or to instruct the jury on the law (if a criminal or civil jury matter). No doubt judges on hearing the parties will test the arguments in submission before them. It is not however the function of a judge as part of a judicial service to support or to be seen to be supporting one person’s Rights of Audience as against the other, explicitly or impliedly, on the basis of the means or institution by which they have Rights of Audience in the first place. That can only detract from the judicial function and in particular detract from the perception of the pursuer/petitioner/respondent/accused and the public of the judicial function as objective, fair and transparent.
"While our own experience of the judiciary has been nothing other than fair and attentive with no hint of discrimination between ourselves as solicitor advocates or advocates, we have heard of instances where judges have sought to introduce into the proceedings factors relating to Rights of Audience of one against another. Some of that may be derived from the background of the particular judge in question and who may believe that advocacy has to be defined in terms of the particular institution from which it arises. We know that at least one judge in the Woodside case has been supportive of solicitor advocacy but nevertheless some of the comments in the Woodside case could be interpreted as suggesting that the Court would automatically place greater reliance on the submission of an advocate (especially when procedures had been in place whereby any such concern could have been more properly communicated). The Lord President should ensure that such practice or practices cease. More generally the fact that judges are members of the Faculty of Advocates should now cease. That detracts from their independence and again feeds the idea that advocacy from one institution is somehow better or more approved of or reaffirmed by judges being their members. In any event it must militate against the impartiality of a judge in having advocates or solicitor advocates before them. They should also, consequentially, cease to have any role in the appointment of the Dean of Faculty who represents one particular institution covering those who have Rights of Audience.
"Further, in so far as judges derive from the Faculty of Advocates they inevitably have history from that membership. They will have mentored to practicing advocates or been mentored. The duties in such mentoring carry on in terms of advice and guidance thereafter. It should be made clear that there is no special relationship between an advocate and judge arising from this and, if necessary, such relationships should be known and private advice and guidance discontinued. Further while judges may have an interest in the quality of the advocacy before them and the availability of Senior Counsel/QC’s, the system of QC appointment needs to be looked at again to ensure there is not a perception of bias towards one institution as opposed another in receiving such a status. Whether or not solicitor advocates are not coming forward to apply for senior status due to any inherent perception of bias, the closeness of the judiciary to the Faculty certainly lends itself to such a perception. It is also our view in relation to questions of openness, fairness and transparency that judges should not have an exclusive role in the appointment of QCs.
"While the institutional ties between the judiciary and a particular body from which Rights of Audience arise should be severed, that is not to say that the judiciary do not have a legitimate concern in the administration of justice in the quality of advocacy before them. That applies to whoever is practicing advocacy before them. Their concern may be a miscarriage of justice in respect of an accused before them. There may also be a general concern of the quality of advocacy, individual or otherwise, which would not necessarily amount to misconduct or a miscarriage of justice but where the advocacy is poor and therefore rendering justice according to the law more difficult.
"With regard to immediate matters, for example in the course of a Proof or trial, for advocates the judge can contact the Dean of Faculty for members of Faculty. There is no similar procedure for solicitor advocates. There must therefore be such a procedure. This would be best achieved by paralleling the Dean of Faculty system. This would be by way of a democratically elected “Dean” for solicitor advocates (together with any “Vice Dean”) (the nomenclature does not really matter). Their function would be to address the concerns of a judge in respect of a solicitor advocate and/or conversely address the concerns of solicitor advocate regarding a particular judge. That Dean or Vice Dean for solicitor advocates should also have the same right of appearance as the Dean of the Faculty. We therefore agree with the Reviewers recommendations."