David Johnston QC: Amid the gloom, reform and modernisation may be on the cards

20 January 2009

Published Date: 12 January 2009, Scotsman

It is, thankfully, not often that a new year begins in such an atmosphere of gloom and with such modest expectations for the 12 months ahead. The plunge from crunch into recession has been a rapid one.

Where does this leave the legal profession? We will not escape the recession, and those who depend on the buoyancy of the corporate sector or the housing market have already felt the chill. Others will follow. Yet, it is surely appropriate to adopt a more positive approach.

What is there to look forward to? One side-effect of the downturn, in law, as elsewhere, may be a renewed determination towards reform and modernisation. Various moves in this direction are under way already and should prove to be to the ultimate benefit of consumers and businesses in Scotland. In April, we can expect the conclusions of Lord Gill's Civil Justice Review. This follows earlier reforms to the criminal justice system, regarded as having improved its efficiency. In civil justice, the aim must be, consistent with achieving justice, to reduce delays and costs.

Meanwhile, Kenny MacAskill, the justice secretary, has set store by the contribution the legal profession might make to stimulating Scotland's economy. The political vision is that Scotland should seek to establish itself as an international hub for alternative dispute resolution (ADR). The proposed Arbitration Bill is one of the key instruments for achieving this ambitious goal. If that is to happen, rapid progress towards enactment of the bill is needed.

It will also have to be complemented with a programme of investment in the relevant skills and facilities, and

ADR procedures will need to be subject to time limits. The prospect of lengthy and expensive hearings currently acts as one of the main deterrents for businesses, which might otherwise submit their disputes to arbitration. Time limits do not feature in the current bill. With suitable amendment, the bill is capable of opening the door to international arbitration in Scotland.

Alongside these developments, the debate about the structure of the legal profession itself is likely to intensify. The prospect of alternative business structures is coming closer.

Reforms due to come into force south of the Border in 2010 will make it possible for the English legal profession to adopt these structures. There is bound to be pressure for Scotland to follow suit.