Scotland: Barristers swear blind loyalty to each other, solicitor claims
A Scottish silk has been removed from a Competition Appeal Tribunal (CAT) panel set to hear a challenge to the rules of the Faculty of Advocates, the Scottish Bar.
Mr Justice Roth, acting president of the CAT, said that although he was sure Ian Forrester KC could decide the case objectively, “the fair-minded observer would be concerned that… there could be a risk of unconscious bias”.
However, he rejected Patrick McAuley’s challenge to the other members – Scottish judge Lord Richardson, a member of the Faculty, and Scottish solicitor Peter Anderson – and his request for an all-English panel.
Mr McAuley is a Scottish solicitor with a supervision condition on his practising certificate imposed by the Law Society of Scotland. He wanted to instruct an advocate on two cases where he is representing himself.
He contends that the Faculty of Advocates’ instruction to members to refuse services to solicitors who do not have unrestricted practising certificates is an abuse of a dominant position contrary to the Competition Act.
The first ruling in the case was Mr McAuley’s challenge to the panel, in which he said: “The Faculty of Advocates is a group in Scottish society who swear blind loyalty to each other to allow each to gain the most success in society possible by any means possible.
“Lord Richardson would be sitting on the bench with an emotional connection to the respondent and justice not being seen to be done.”
Mr Forrester, meanwhile, was a member of the Faculty and “heavily involved” in its administration – he is a member of its complaints committee – while Mr Anderson was a member of the Law Society of Scotland, “a party related to the case” and which Mr McAuley has had cases against, making him “emotionally involved too”.
He indicated that his concern was “subconscious”, rather than conscious, bias.
Roth J noted that most higher court judges in Scotland were previously advocates and therefore members of the Faculty.
“If that alone were sufficient to preclude them from hearing a case where the Faculty was a party, and as most such cases would be brought in the Scottish courts, it would be difficult for any case involving the Faculty to be heard.”
However, there had been such cases without any suggestion the judges were affected by actual or apparent bias.
There was no evidence to support the assertion that members of the Faculty “swear blind loyalty to each other”, and it was “strongly rebutted by the solicitors for the Faculty”.
Lord Richardson had also taken a judicial oath and, while this was “not a sufficient basis for displacing a perception of subconscious bias if there are strong factors pointing the other way”, there were no such factors here.
“A professional judge, by his or her experience, is accustomed to put aside any personal inclinations they may have when deciding cases.”
The fair-minded observer – the test for judicial bias – “would not have any concern” that Lord Richardson might be biased, he decided.
Mr Forrester, however, was in “a rather different position” as a practising member of the Faculty and subject to the rule at issue, and having a limited involvement in its work.
“Although personally I have no doubt that Mr Forrester, as a very respected former judge of the EU General Court, would decide the issues in this case entirely objectively, I think, on balance, that the fair-minded observer would be concerned that in these circumstances there could be a risk of unconscious bias.”
Roth J also held that, simply because Mr Anderson was a solicitor, he did not think the fair- observer would consider he was emotionally involved in the case “such that there is any real possibility that he would be affected by bias in deciding it”.
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