The Faculty of Advocates has issued a damning and withering indictment of the draft conclusions of investment banker Ben Thomson's review into rights of audience, triggered by the Woodside case almost a year ago.

The Faculty says Thomson's conclusions are fundamentally deficient, and the review failed to conduct any proper research into the issues, or even address concerns raised by the Woodside case.

“The recommendations fundamentally challenge the foundations on which the legal profession is structured in Scotland and do so without any adequate basis,” it says.

“The draft review is the product of a strictly limited consultation exercise with very few individuals and consequently lacks a proper appreciation of the issues. No attempt has been made to commission research. Instead the review appears to proceed on the basis of anecdote, perceptions and, in some instances, isolated and unsubstantiated comment from unidentified individuals.”

At the root opf the Faculty's complaint is the assertion that advocates are inherently better trained and qualified to appear before the higher courts.

“The Faculty makes no apology for asserting that this training is far superior to that required of a solicitor who wishes to acquire extended rights of audience," it says.

“The most serious, difficult and important cases are heard in the Supreme Courts and the public interest justifies requiring particularly high standards of those who represent people in those courts.

The response goes on to indicate that any solutions arising from the Woodside case and Thomson review should apply only to solicitor advocates, and not the Faculty of Advocates, which "insists that addressing the issues raised in Woodside does not require radical changes to be imposed on the Faculty."

“Indeed, attempting to devise a ‘one size fits all’ solution is liable not only to be disproportionate but to miss the target. It is questionable whether the reforms proposed by the review will in fact address the mischiefs that the review has identified.”

The full response is below.

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The Faculty of Advocates has criticised the “fundamental deficiencies” in a draft review on rights of audience in Scotland’s Supreme Courts.

In its response to the review carried out by banker Ben Thomson the Faculty says:

? The review fails to appreciate the fundamental difference between solicitors and advocates.

? It proceeds on the basis of inadequate consultation and information and on unrepresentative and unattributed comments.

? It fails to appreciate the constitutional and practical importance to Scotland and its people of an independent referral Bar.

? The proposal to change the way advocates are regulated cuts across established Government policy and threatens the future of the Bar.

? Rather than improve the standards of those exercising rights of audience before the Supreme Courts, the review might have the reverse effect.

The Faculty welcomes a number of aspects of the review, including the recognition that a high threshold of knowledge and skill should be required of anyone who appears in Scotland’s Supreme Courts.

The response makes the point, however, that the Thomson recommendations go well beyond the problems identified in the case of Alexander Woodside, a murder appeal which gave rise to the review.

“The recommendations fundamentally challenge the foundations on which the legal profession is structured in Scotland and do so without any adequate basis,” the Faculty says in its response.

“The draft review is the product of a strictly limited consultation exercise with very few individuals and consequently lacks a proper appreciation of the issues.

“No attempt has been made to commission research. Instead the review appears to proceed on the basis of anecdote, perceptions and, in some instances, isolated and unsubstantiated comment from unidentified individuals.”

The draft Thomson Review recommends a universal standard examination for admission as a “pleader” in the Supreme Courts with a regular performance review, one code of conduct for all pleaders and one complaints process for advocates and solicitors.

The Faculty points out that the Woodside case was concerned only with the conduct and training of solicitor advocates and their regulation by the Law Society of Scotland.

The particular issues raised included the practice where, when two solicitor advocates appear together, of paying the nominal “leader” as if he were a QC irrespective of his actual experience, the potential conflict of interest where a solicitor instructs a solicitor advocate from within the same firm, the risk of an accused being defended by an inexperienced solicitor advocate “whose reach exceeds his grasp” and the operation and policing of the rule that obliges solicitors to explain to clients who can represent them in court, including the use of an advocate.

The Faculty response states: “Any deficiencies in these matters can and should be addressed directly. Instead, the review proposes wide-ranging reforms which would impose significant additional demands on the judiciary and involve a radical alteration of the structure of the legal profession in Scotland in a manner at odds with the policy underlying recent legislation of the Scottish Parliament.

“The review identifies no inadequacy in the training, accreditation or qualification of advocates or in the regulation of the profession of advocate by the Faculty of Advocates.”

The Faculty points out that prospective advocates have to undergo a course of training over a number of months, specifically directed towards pleading and practice in the Supreme Courts.

“The Faculty makes no apology for asserting that this training is far superior to that required of a solicitor who wishes to acquire extended rights of audience. The Faculty is an acknowledged leader in the field of advocacy training.”

The Faculty stresses that any proper review must take full account of the constitutional importance of the benefits for the administration of justice in Scotland of having a body of independent advocates.

“There is a very high public interest in securing that anyone who represents someone before the courts has the appropriate expertise to do so effectively.

“The most serious, difficult and important cases are heard in the Supreme Courts and the public interest justifies requiring particularly high standards of those who represent people in those courts.

“The availability of a pool of independent advocates helps to secure access to justice and equality of arms between the powerless and the powerful. It supports the administration of justice throughout Scotland.”

The Faculty insists that addressing the issues raised in Woodside does not require radical changes to be imposed on the Faculty.

“Indeed, attempting to devise a ‘one size fits all’ solution is liable not only to be disproportionate but to miss the target. It is questionable whether the reforms proposed by the review will in fact address the mischiefs that the review has identified.”