RODDY DUNLOP, Dean of the Faculty of Advocates, greets me in the grand hall which leads to his office. This imperious vestibule is bedecked with the scowling portraits of previous holders of the grandest of Scotland’s civic offices. But for how long?
Among these ancient legal patricians are some now deemed guilty by modern hanging judges of cultural malfeasances. “They’ll be coming for them, next,” I tell him. He responds with a wintry smile and you wonder how the locution “come ahead if you think you’re hard enough” translates in a place like this.
A few minutes later we’re discussing free speech and specifically, Mr Dunlop’s pugilistic social media presence. What we call a “Twitter spat” has developed between him and John Nicholson, the notoriously prickly SNP MP. Mr Nicholson is the latest in a chorus-line of professional nationalists who’ve taken exception to Mr Dunlop’s acerbic interventions.
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At the start of this year he was blocked on Twitter by Joe Fitzpatrick, then Chair of the Access to Justice and Civil Justice committee and now promoted back into Government by Humza Yousaf. Mr Dunlop had expressed specific concerns about Holyrood’s decision to reject changes that would have prevented men accused of rape changing their sex during legal proceedings.
“I just find it remarkable that he would block me on Twitter. And in a situation where I’ve literally never interacted with him,” he says. “I support the right of anyone to block for abuse but in a situation where I’ve never had an exchange with the guy in my life to find that the Dean of Faculty is blocked by the man who was then chair of a committee which considers equalities, human rights and civil justice matters, is just bizarre.”
I suggest that a reasonable outcome might have been to make a phone call and arrange to discuss these matters over coffee. “Well, I’ve extended that invitation through a third party, but he’s not picked up.
“I’m always disappointed when elected politicians decide that they don’t want to hear things. Critical thinking and criticism should be welcomed and people should be prepared to engage. It’s disappointing.
“I’ve ripped into the UK Government on many occasions when they keep excoriating lawyers for doing their job. Their infantile obsession with “leftie lawyers” drives me mad.
Yet his Twitter activity has also sparked the ire of some colleagues. One KC, responding anonymously in Scottish Legal News said: “There is a feeling that this sort of thing is demeaning of the office of Dean of the Faculty.”
Mr Dunlop disagrees and suggests the opposite is true. “I think the days of Faculty being in an ivory tower and not engaging with the public are – or at least should be – long gone. I think if we’re to have modern relevance to Scotland people need to know who we are and what we do. And to that extent I think it’s been useful.”
Such views are consistent with his reputation within the legal profession as a committed defender of free speech, something he thinks is being eroded in public discourse.
“The level of harassment that I see regarding certain views is a worrying trend. The propensity to make complaints of hate crimes is a concern. The willingness of the police – and this has been primarily in England – to record things like non-criminal hate incidents is quite disturbing. There is a bit of a mission creep in turning the espousal of certain views that are almost certainly protected views in law into hate speech.
“We live in a pluralistic society and thus are entitled to hold views that are not hateful. We shouldn’t escalate views that someone else finds offensive into something that’s considered hateful.”
We discuss the disproportionate presence of privately-educated, first division judges on the Scottish bench. Mr Dunlop is a former pupil of the private High School of Glasgow and acknowledges the imbalance. Yet he’s also been pleased with the numbers of women and pupils from state schools now beginning to change the social and cultural fabric of the profession.
“It’s not good from the point of view of simple fairness in terms of diversity and allowing progress in the profession,” he says. “There’s not enough state school-educated people on the bench; there’s not enough women on the bench. Part of this is a legacy problem. At the moment the number of women in the Inner House is outnumbered by the number of men called Colin. There are four Colins and there are three women.
“Part of it has been the very slow progress of women in the profession. Women have only been allowed in for the last 100 years, but the faculty has been going for 500.
“The same is true of state schools, but it’s changing rapidly. Over half of our membership have been state-educated. We have a variety of scholarships. And the funds now available are weighted to try and address the historic imbalance.
“I was inspired by a scholar who addressed a Law Society dinner last month describing how he’d come from a very difficult background. In my opinion, he’s at the start of what looks like being a stellar legal career.”
In recent years he’s been a highly visible presence at the interface where politics meets the law. He acted for the Scottish Government in Alex Salmond’s successful judicial review following the investigation into misconduct alleged to have occurred while Mr Salmond was First Minister. He also acted for Craig Murray who was found to have been guilty of Contempt over blog posts he’d written about Mr Salmond’s subsequent trial.
These cases, as well as the legalities surrounding the limits of Holyrood’s power to hold an independence referendum have led to questions about the presence of the Lord Advocate in Government. In this, he describes himself as a traditionalist who believes the practice of both advising government and being free to prosecute has worked well for a long time. He now thinks though, that it may be time for Scotland to consider moving to the English model.
“They have a Director of Prosecutions on the one hand and an Attorney General on the other. I think that a general erosion of public trust in our politicians has perhaps – very unfairly – spread to the office of Lord Advocate. I know all of the recent Lord Advocates professionally and personally and they’re all men and women of integrity.”
He’s also dismayed by what he regards as the performative antics of a cohort in his profession who have lately signalled their refusal to act for energy companies or to prosecute climate protesters.
“I think it’s heretical to me in terms of the ethos and the credos of the Scottish Bar. We have always held to the cab rank rule. There are a variety of exceptions. If I go to a tax specialist KC and say that I want him to defend a murder tomorrow then he’s entitled to point out to me that he only does tax.
“As soon as we start just saying that out loud and admitting of the possibility that we can, as lawyers, say that we don’t think something is a just cause so I won’t plead for it, we lose our ability to say ‘don’t identify us with our clients’ and we damage the people that really matter in this discussion, the criminal advocates.
“They act for people who may well be very unpleasant pieces of work, but they still need representation and representation by people that won’t pre-judge them. If we start going down that route then where does it end?”
He’s also leading the Faculty’s resistance to proposed changes in Scotland’s jury system, specifically to remove them in cases of rape or serious sexual assault. “One of the many objections we have is again the risk of mission creep. We also don’t think it actually makes much sense. How can you say that you can’t trust a jury in a rape case yet trust them in a case of murder? In Scotland, we attach fundamental importance to our juries and it’s always been there.
“It’s not something we should give up lightly. Again, it’s about the perception of fairness and the acknowledgment that what a jury brings to the table are various different experiences of life and society. So, we very much hope that this change doesn’t go ahead. We strongly suspect though, that it will be attempted.”
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