I attended the Commonwealth Lawyers Conference in Glasgow Scotland recently. The Magna Carta display was a feature and the Rule of Law in its many different forms was a continuing theme throughout the conference. But I suppose I learned the most in two areas.
The first area of interest was the different training of lawyers in different countries. As an example, in Scotland there are about 11,000 Scottish solicitors. They are very protective of the brand. They have specific areas of practice, such as divorce work, and only Scot solicitors can do that work. However there are many who refer to themselves as lawyers but cannot do what the Scot bar does. It may be those others are unregulated but I didn’t have time to figure that out.
I was also interested to learn that only about 50% of law graduates from the UK Universities go on to practice as lawyers. In the UK you can get an undergraduate degree and then take a one year “Law Conversion” year and obtain a law degree. You are then required to seek admission to the bar which requires a position with a firm. The articling program appears to vary but I understood it requires about a two year program where the clerk is paid a “subsistence” wage. However, a great deal of time is spent training the principals to make sure the student learns well.
It appears that the admission program is similar throughout the UK. However the smaller countries of the commonwealth have a variety of different models, from no skills training solely to in-office learning. I also learned much more about the Ontario admissions program and was surprised to learn that the four months education module included significant distance learning.
The second area of interest is the Latimer House Principles (LHP). Several lectures at the Conference dealt with the appointment of judges. Political interference or perceived political interference creates both a perception and sometimes a reality of a less than independent judiciary. The public should be entitled to a fair, open, impartial hearing. This principle dates back to the Magna Carta.
About 20 years ago the LHP were adopted in principle by the Commonwealth countries. The LHP required creation of judicial appointment committees comprised of members of the public, experienced lawyers, representatives of the Executive branch, and judges, The committees would evaluate and independently appoint the judiciary. This would satisfy the open transparent and impartial requirements. These committees come in various sizes, shapes and effectiveness. Some are far removed from government, such as in the UK, but the criticism is that the process becomes too much like a civil service exam and interview. Some view the UK process as cumbersome and not attracting qualified candidates. Some think the UK process creates barriers. Other processes in other Commonwealth countries continue to be more or less a “tap on the shoulder” model. In that process, you are deserving of appointment and you are a friend of the government. Others still have a feeling of “political interference”. There have been some examples in the Commonwealth of outright interference though requests to resign or worse.
Canada falls somewhat short of the UK independent process. The problem of course is that the public has the right to expect that judicial appointments are not controlled by the legislative or executive branches of government. The mystery shrouding the judicial appointment process is as much a part of the problem as the process itself. Most of the bar and the judiciary have confidence a good job is being done. However we continue to see events in Canada which give rise to the belief that political considerations have too great an influence on appointments. The public needs confidence that the process itself is open, fair, and transparent to deliver a qualified and independent judiciary. It would appear we have some work left to be done in Canada.
As an example the Federal Government has an obligation to appoint a Judicial Advisory Committee for each province and have that Committee meet. They cannot just sit on their hands. We can together improve this process. It takes effort, commitment and courage but these characteristics were needed as long ago as 1215.
The LHP also have application to the judicial discipline process. The process is so rarely needed (thank goodness) it lacks fluidity and is very formal. I think this also can be worked on. It needs to allow the public to know that judges are accountable and not above the law. We know that Judges are serving the public but they need to improve this Discipline process.
I very much enjoyed this conference and I brought back some material which will assist Benchers and staff in their work.
Oh, by the way Glasgow Scotland is a terrific place. I know now that Glasgow and Edinburgh have a friendly rivalry resulting in few jokes. I will share these with you in person.