NEWS

Speaking at the conference, the Lord President said:

"Good morning everyone.  I am delighted to be here and would like to extend my thanks to Usman Tariq KC for the invitation to speak today.  I also wish to acknowledge the vision and dedication of the few who devised this event back in 2001 and the many since who have worked hard to make this the respected feature of the legal calendar it has become.

It was prescient indeed of those early pioneers to anticipate the creation of the scourge known as Black Friday and position the conference neatly between that and the end of the CPD year .

We are of course, now, a quarter of the way through the 21^st Century.  That is a good point to reflect on where we are, where we want to be and how we might get there.  

Points to cover

This morning I would like to alight on three themes which I believe will shape and influence our work in the coming years and the justice system in particular.

First, the challenges to the rule of law.  These affect every one of us in this room – and, indeed, every citizen across the country.  It is not a concern we can afford to overlook and it is the duty of every lawyer not merely to uphold it but pro-actively to maintain it.    

Second, in an age defined by immediacy, digital literacy, and media complexity, maintaining the principle of Open Justice requires us to challenge and evolve traditional approaches and to have the courage and vision to think in new ways.  The urgency to adapt to the pace of societal change is clear; the rule of law depends on it.

Finally, I want to mention ambition.  Not in the sense of avarice but avidity.  Everyone here is ambitious for change.  There are things we can all do to make change happen.  The increasing demands on our justice system underscore the need for meaningful reform and meaningful investment in reform.  Much has been achieved already.  Much remains to be done.  Technology brings a unique opportunity for our jurisdiction to expand, which we must all embrace.

Rule of law

Can I first turn to consider our shared commitment to the rule of law. 

The work that we all do in upholding and maintaining the rule of law is what underpins our democracy. It is the basis on which a resilient and prospering economy is built. It is what permits individual citizens to go about their lives freely. 

Our courts bring peace and security to the personal lives of citizens.  They promote stability in the commercial world, discourage and punish unacceptable conduct and provide balance in the affairs and operation of government.  The daily routine of our independent courts reinforces our values and deepens social cohesion.  In short, courts and tribunals matter.  They are different to anything else in the public sphere: judgments are binding, enforceable ultimately by the coercive power of the State.  Our justice system, the rule of law, is the foundation on which all our other societal endeavours rely.

Though much of our work may happen away from the public eye, its effects are far-reaching, touching lives, businesses and communities in meaningful ways.

Most people never find themselves in a court room, but they can be confident that if they do, they will be met by judges who are impartial, independent and committed to the law.

Many people will, however, find that they need a lawyer at some point in their lives.  When they do, they can trust that the person advising them is impartial, independent and committed to the rule of law.    The independence of the legal profession is essential to the independence of the judiciary.  It is why every lawyer is an officer of the court, whether a litigator or not. An independent legal profession is one of the pillars on which a stable democracy rests.

The independence which imbues and animates the Scottish judiciary and our legal profession is vital – not only for those working to deliver justice, but for public confidence in our justice system. It is essential that we cherish and protect it, especially when there are some concerning signs that it may be fraying at the edges in certain quarters.

Of course, independence does not mean that we as judges and lawyers are free from criticism. Public scrutiny and political commentary are not only expected, they are to be encouraged – for they too are the vital signs of a healthy democracy. But when criticism stems from misinterpretation or misinformation about the facts, the reasoning or of our motivation, it has a corrosive impact on public trust in the institutions which protect our rights and which support our democracies. 

What do I mean by independence in this context?  It doesn’t, of course, mean that the lawyer stands entirely apart from his or her client.  The lawyer must fight the client’s corner to the best of his or her ability, whether in the court room or in the heat of a commercial transaction, subject to doing so within the boundaries of the law and the applicable professional rules.  I suggest it means that members of the legal profession have the responsibility to provide expert and impartial advice, guidance and representation to members of our society in what are often the most challenging of circumstances.  Sometimes to people who find themselves desperate and vulnerable.  Lawyers also need to have the moral courage to ensure that the advice they provide is not what the client wants or expects to hear, but is the result of rigorous and independent consideration of what is truly in the client’s best interests.

It is in this respect I think that the practice of our profession is such a unique privilege, whether representing clients’ interests at their lowest ebb; or providing the essential commercial advice and legal knowledge to keep our economy and business community functioning properly and able to punch above its weight internationally.  Society confers these privileges upon all lawyers; the trust and faith which society invests in us are benefits which we have a duty to repay: that trust hinges on the expectation that we as lawyers will carry out our functions diligently, honestly and ethically at all times. 

The rule of law cannot function unless we have honest, expert, respected and independent lawyers who  support a court system in which all citizens have complete confidence not only that their cases will be adjudicated impartially and independently, but importantly that the lawyers who represent them are able to do so with confidence and without fear of reprisal. 

Lord Neuberger, the former President of the United Kingdom Supreme Court, cogently made this point when he addressed the World Bar Conference in 2016.  He said this:

“Both the moral and the economic aspects of the rule of law involve people having rights and duties, and it is wrong in principle and unfair in practice to give them rights, and to impose duties on them, unless those rights and duties can be enforced and ruled on by independent judges.  It is just as wrong and undermining to give people rights and impose duties on them if they cannot get appropriate advice as to the existence and extent of such rights and duties, and cannot get proper representation in courts to fight for their rights or to defend themselves against claims.”^[1]

In addition, the Basic Principles on the Role of Lawyers[2] and the International Bar Association Standards for the Independence of the Legal Profession were adopted in 1990[3].  These constitute landmark instruments recognising the principle of independence of the legal profession as an essential component of a democratic society and the rule of law, and a necessary prerequisite for the effective protection of human rights.

Of course lawyers are not beyond reproach.  That is why our system has regulators, independent of government and politicians. uphold high standards.

It is a central point that the regulator must be independent of government and politicians. 

It is of critical constitutional importance that there is an independent legal profession willing to stand up for the citizen against the government of the day.  A human rights lawyer, for example, must be free to act against the government, without fear of disciplinary action or public attack.  So also must a criminal defence lawyer.  Similarly, independent lawyers representing the government, or involved in prosecutions, must be free from governmental interference in the exercise of their professional responsibilities.  This is what sets the legal profession apart from other professions and rightly so. 

It is because of the centrality and importance of these key principles that I was pleased to see that the Scottish Government removed the proposed political involvement in the regulation of the legal profession from the Regulation of Legal Services (Scotland) Bill, which has now been enacted. 

One of the aims of the Act is to simplify and improve the current complaints process.  I support that aim.  Not only will it benefit consumers, it will also have the effect of ensuring that high standards across the legal profession are met, and maintained.  And in a more transparent way.

Clarity, transparency and continued public engagement are key to ensuring public confidence in, and understanding of, the justice system. 

It is not just the job of courts and lawyers to ensure the facts and reasoning in cases are well and accurately understood. It is a responsibility shared by all the institutions of the State (including government) and indeed the public at large.

The House of Lords’ Constitution Committee’s recent report into the rule of law[4] highlighted public legal education as a “key enabler of a rule of law culture”.  They are correct.  We must reflect on what each of us can do to bridge the education gap, to explain in simple terms why the person in the street should care about it. 

For our part, in the courts and tribunals, we are reaffirming our commitment to Open Justice to secure the foundations of the rule of law.  

Open Justice

Many of you will have heard me speak on Open Justice at one stage or another, reiterating that justice dispensed in public is one of the most fundamental principles we have in this country; it is central to the justice system.

By making the processes of our courts and tribunals open, accessible and understandable, the public will have confidence that they are central to supporting a well-functioning democracy.

We have made significant strides in recent years.

Livestreaming of Inner House proceedings is now routine and we have recently commenced livestreaming appeals in the Criminal Appeal Court.  Ceremonial events, including the Opening of the Legal Year, are also now being livestreamed.

We are supporting broadcasters to film sentencing more frequently and enabling documentary makers to cover high-profile trials that are helping educate the public about the justice system.  The series, Murder Trial, has won multiple industry awards and is being used in schools and universities as an educational aid. It is also astonishing to note that the documentary attracted over three million views per episode on the BBC.  That is rather more than can fit into the Lawnmarket.  It speaks of the unmet curiosity about what goes on in our courts and tribunals. 

Those watching these documentaries did not simply see the administration of justice, they saw its deeply personal impact, its relevance to their own lives, and the solemnity and professionalism of all those involved. 

We continue to engage positively with journalists, whose insights are helping shape our next steps.  In parallel, we are publishing a broad range of statistics covering business levels in our criminal and civil courts, our tribunals, and the Office of the Public Guardian.  To cynics, statistics are dry and dis-trusted but having clear metrics about what is happening in the justice system is essential to public understanding and myth-busting.

I also welcome the increase in the number and scope of sheriff court opinions being published.  This is work in progress and the sheriffs principal are looking at how sheriffs can be supported to increase volumes further. 

While the progress to date across the board is both positive and encouraging, it serves as a foundation – not a finish line.  To realise fully the principles of Open Justice, we must now focus on deepening its reach and broadening its impact.

There is more we can do to enhance public and media access to documentation, sentencing and livestreaming.  We need to do more to open up the courts to the public in modern and accessible ways, taking full advantage of technology.  For example, we should consider whether the media should be permitted to film and broadcast more of a sentencing hearing than just the judge’s sentencing remarks.  We need to think creatively about enhancing public access to the civil courts in a wider range of hearings that do not involve the evidence of witnesses. 

By nature, advancing Open Justice must be an inclusive and accessible endeavour so that we do not directly or indirectly exclude participation.  We must understand perspectives from across Scotland and collaborate with others if we are to get a clear understanding of the challenges and the opportunities. 

So we are examining how we can strengthen engagement with a broader range of stakeholders.  This does not just mean justice organisations; it includes the third sector, universities and colleges, in order to bring a broader insight into the way Open Justice can be developed.  As I touched on in relation to the rule of law, it also means seeing the potential for improving judicial, staff and public education on Open Justice in order to build public awareness, support and confidence in our justice system. 

There is an appetite for this, both within the system and among the public, and we must feed it. 

The public expects and is entitled to openness and transparency in how all of us work.  They are entitled to high standards and ethical behaviour.  It is for all of us to lead by example.  The judiciary, with the support of the profession, have been successful in reminding people why the legal profession must, ultimately, be regulated by the Court.  It is now for the Court to demonstrate that regulation of the legal profession can be done more effectively, more transparently and more openly.  The Court takes this responsibility seriously. 

Regulation of the branches of the profession rightly remains with the individual regulators but there is a step change underway, with more scrutiny of their work.  The public expects modern, transparent regulation, fit for the 21^st Century.  If the public cannot see how the machine works, it will not trust it.  I am pleased that both the Law Society and the Faculty of Advocates are actively working to modernise their procedures. 

I mention these efforts and our continued resolve to build on them because it is not just a task for the judiciary or the courts and tribunals service.  It is a shared task and one which is and will accrue wider benefits to our jurisdiction.

Ambition for our jurisdiction

I want to turn to ambition.  Our jurisdiction is already successful but Open Justice is raising its profile and bringing our achievements to a broader audience.  As many of you know, we already have strong ties to other jurisdictions. We regularly host foreign delegations keen to see how we do things.  That is because our legal sector is innovative and, together, we have introduced many successful reforms over the past 25 years. 

The introduction of group proceedings has created a new avenue for litigation and the Scottish Civil Justice Council is examining what more might be done in that area.  As the impact of climate change  increases, litigation involving environmental issues will become a greater feature of our forum.  It is important that our court rules are able to facilitate that.  The Council’s latest work on the Aarhus Convention will assist but more may be required.  As it focuses its strategy, it will want to hear from a broad range of voices what opportunities there are for expanding civil business.

Our jurisdiction is open for business.  We have a world class, highly professional and forward-thinking judiciary, economical and efficient courts and highly-skilled practitioners, with turnaround times the envy of many of our neighbours.  The judiciary are doing everything we can to foster the forum. Our leading law firms are working across borders and employing lawyers qualified in multiple jurisdictions.  I hope that they will increasingly see advantages for their clients in making commercial contracts subject to Scots law and of prorogating the jurisdiction of the Scottish courts.  

Other jurisdictions are taking cases that as a matter of law should be heard here because they have effective marketing despite a more expensive product that can take longer to deliver.  We must not be shy of promoting our jurisdiction.  We must have ambition for it to succeed. 

Our legal services sector generates £1.5 Billion for the Scottish economy.  It contributes to wider economic prosperity by the employment of thousands of people.  Yet few are aware of this.  What more can we do, together and individually, to market Scotland, to highlight the economic value our forum generates, to make it the forum of choice for dispute resolution? 

Our competitors may be larger and possess a lot of the market share but Scots are wily and agile and we can achieve more if we organise.  I am happy for the senior judiciary to work with you in actively marketing our forum and I value your ideas on how we can bring more business to our courts and tribunals.  When it comes to marketing our jurisdiction as a place to do business, if Lord Kitchener had been a judge he might have said: your court needs you.

Reform

Building on the theme of ambition, there is an ongoing need for reform of the system.  It is a need because there is no alternative.

To understand where we are, we must look – very briefly – back to where we were.

Those of you who were practising 25 years ago will remember only too well what it was like.  Paper was king, court delays ran into years and some practitioners and judges wore their IT illiteracy as a badge of pride. 

As Lord Gill put it in the Scottish Civil Courts Review in 2009, practitioners from 100 years ago would have had little difficulty in picking up the way things operated.  He described the Court of Session as running on the “principles of crisis management”[5].  Things have changed out of all recognition since then.  What we regard as normal today would have been considered fanciful science fiction then.  Yet, here we are. 

And where we are is a new era.  An era in which the world around us is changing rapidly, public expectations are evolving apace and demand on our services is outgrowing our capacity.  Opportunities to do things in different ways abound and are rapidly needed. 

There are challenges ahead but we should also celebrate the recent successes.

Recent successes

The Scottish justice system has punched above its weight when it comes to service improvement and delivering efficiencies through collaboration. 

We have seen the introduction of the Digital Evidence Sharing Capability that allows digital evidence from crime scene to court room.  That has been heralded as world-leading.

The use of remote provision of evidence in the High Court has averaged over 50% since May 2024, saving substantial police and professional witnesses’ time. 

Evidence by commissioner suites across the country are supporting a more trauma-informed approach for witnesses and complainers by pre-recording their evidence. 

We have also seen the progress of the summary case management project which, under the leadership of Sheriff Principal Anwar, is scaling from promising pilot to national norm. 

These are changes that not only benefit the courts, they create savings that cascade across the justice system.  The national rollout of summary case management is expected to reduce the number of avoidable summary trials by over 3000 a year and, in turn, reduce the number of police witness citations alone by 50,000.  These are not trivial savings and they are freeing up resources to do other things.

The benefits demonstrated by the summary case management project have inspired us to explore what might be gained by developing an equivalent approach for solemn cases.  So initial work is underway on that.

We have the collective potential to work towards a digital justice system in which for most civil cases the litigation process is undertaken end-to-end online. For example, court orders should be made online and, therefore, instantly received by parties.  Automated notices, alerts and warnings can be sent to the parties and their lawyers to prevent default. The systems should be ‘smart’ in the sense that non-machine-readable text will only be used where necessary. Of course, there will still be in-person and video hearings, but the aim would be to have all the administrative, background and routine parts of the process carried out electronically.  Systems like this are already being developed in other jurisdictions.

The basic idea is that enabling individuals and businesses to access legal services and dispute resolution online in a coherent and interconnected way will provide greater access to justice at a reasonable cost and speed and in a way that promotes sustainability. Such systems will be far better suited to the technological age.

Legal aid

Such initiatives are only successful if all involved are able to play their role.  Legal aid matters.  A healthy criminal defence bar is as essential to the administration of justice – to the rule of law – as a well-funded police or prosecution service.  The frustrations expressed do not go unnoticed.  But it is a trite observation that, if doing the same thing over and over does not change the outcome, perhaps a new approach may be worth exploring.  The successes I mention have been wrought through a collective, collaborative approach across the sector. 

Covid recovery

In that context, I must mention the courts’ Covid recovery programme.  I do so, not to blow a trumpet but to underscore a point.  With government support and the dedication of practitioners, the number of outstanding criminal trials has been reduced from over 43,000 to around 16,000.  In simple number terms, the system has recovered from Covid.  Contrast the position in other jurisdictions, where the backlogs are growing.  

This demonstrates that, with the right support and positive collaboration, what might once have seemed impossible can be overcome.  Our collective inventiveness is what led to the creation of juries in cinemas.  While trials were suspended in England and Wales, our jurisdiction was able to keep running, continue to administer justice and maintain public confidence. 

These improvements and the recovery are, though, only part of the story.

New normal

For we are now seeing a new and higher level of serious criminal cases being registered.  This is a “new normal”; a trend that was masked by Covid and has since accelerated. 

The demand is driven largely by changes to policy or practice made by the Scottish Government, the Crown or the Police.  Culture change in our society also plays its part.  Those changes are entirely laudable and necessary.  I mean no criticism of them.  But their logical and inevitable consequence is a general and sustained rise in case numbers. 

It reflects the increased resourcing afforded to police and prosecutors and their focus on proactive investigation of historical sex offences and domestic abuse cases.  This leads to more complex, time-consuming prosecutions. 

These, in turn, increase confidence in the justice system leading to greater numbers of victims reporting offences.  A predictable increase in those being sentenced to imprisonment follows and we can quickly see the inter-connectedness of the system and the need for a whole-system approach to it.  A whole-system approach does not mean regarding it as a monolith, it means finding common ways of working and developing shared services that many can benefit from within the wider system.

The increase in volumes is not only a feature of the criminal courts. 

There has been an explosion in tribunal case numbers.  The number of appeals registered in the Scottish Tribunals rose by 32% last year alone.  The Social Security tribunal’s case load grew by nearly 60% last year and the General Regulatory Chamber’s business level is projected to rise by 75% this year.  These are case loads in the thousands and such percentage increases pose an enormous challenge. 

The work of the Office of the Public Guardian has also soared, with applications for a power of attorney up by 38%.  Our ageing population is only going to see that increase.

The challenge

So, how do we tackle these challenges?  We must channel the words of David Lynch: “Negativity is the enemy of creativity”.  We must be positive about what we have achieved and take heart that we can do more.  We must be inventive and work together.

If the thread running through our successful response to previous challenges has been technology, the needle has been adequate funding. 

The clearing of the Covid backlog was achieved in no small part by the provision of temporary funds from the Scottish Government.  This was as essential as it was welcome.  Should that temporary funding be removed, as night follows day, an avoidable backlog will be created.  Business will get stuck, waiting periods will grow and the reputation of the system – including its ability to operate in a trauma-informed or victim-centred way – will erode.  Our ambition for change will be frustrated.

In financial terms, especially when set against the societal benefits, the justice system is extremely good value and comparatively cheap.  We manage to do a lot with very little.  A point we make regularly to government. 

The investment made in other jurisdictions has been considerably greater.  And the benefits there are clear. 

Singapore’s judiciary, courts and legal system are internationally renowned for their efficiency.  By the end of this year, fully digital courtrooms will be in place at all levels, featuring AI-driven real-time transcription of proceedings, remote video hearings as a standard option and even blockchain-based evidence handling for tamper-evident integrity.  That jurisdiction imposed strict procedural timelines and mandatory pre-trial mediation for civil and lower level criminal cases, resulting in cases that once took years now being concluded in months. 

Other jurisdictions are on the same path.  Estonia’s courts are practically paperless.  England and Wales received £1.3 billion in funding for their digital transformation project.

Digital transformation is crucial for our future, not just in the courts and tribunals but to the wider system – and to your practice as well.  I encourage you to embrace the possibilities which new systems and technologies are bringing. 

If we are to compete with other jurisdictions and attract business then we need a justice system that is as efficient, just and respected as we can make it.  We must get better at explaining what we do to those whom we serve and we must have the ambition to change what we can and play our part in achieving that. 

Conclusion

We have come a long way from where we were 25 years ago.  While much has changed since 2001 in how we go about our work and the environment in which we do it, the values of our jurisdiction and our justice system have remained – and will remain – constant.  Your continued contribution to that is considerable and much appreciated. 

I hope to get the chance to speak to some of you during the coffee break to hear your ideas for how we can improve what we do and what we can contribute to that.

I shall not detain you from coffee any longer and thank you again for listening and wish you an engaging and enjoyable conference. 

END