Let’s talk about the Scottish Constitutional Question. Ahh, Yes! You tap the side of your nose and nod sagely. 18th September 2014 and all that. A defining moment for Scotland. No doubt. So let’s speak to a Scottish lawyer at the very top of the highest tree in Scotland to unpack some of this stuff.
“As the UK, we are one of a very tiny number of countries that doesn’t have a written constitution containing rights that can be enforced against the legislator,” says Christine O’Neill, the chairman of Brodies and the only solicitor-advocate on the Scottish Government’s list of standing junior counsel.
In O’Neill’s view there should always be a place for legal challenges to improper legislative decisions - and she is a persuasive and eloquent lawyer in full flow on this subject. Despite the frenetic amount of work, there’s a remarkable sense of calm in Brodies’ Edinburgh office at Clydesdale Bank Plaza, the same office tower as Cairn Energy and another leading Scottish law firm. It is the week of Brodies’ three-year strategic review, when the 78 partners gather for a major internal pow-wow to chart the firm’s course from May next year until 2017. Preparations, papers and presentations are being fine-tuned, as only lawyers with forensic precision for meaning can affect.
Yet O’Neill, petite and neatly turned out in grey suit jacket and trousers, steps into the Starship Enterprise conference room, and looks remarkably at ease.
Originally from Dumbarton, she studied public law and moral philosophy at Glasgow University, undertook a post graduate degree in comparative constitutional law at Harvard in Boston and describes herself as a ‘public lawyer.’ She also lectured at Edinburgh University for a momentous year in 1999 into 2000.
“This was seminal for me. It was the year of devolution and the creation of the Scottish Parliament and it was the year of the Human Rights Act. It was a really important year to be immersing yourself in the birth of Scottish public law, as a serious area of legal practice.”
Putting one of Scotland’s foremost constitutional experts to the test, there is a simple question: could we have a written constitution in Scotland – and still be a part of the UK?
“In a sense, we already have a written constitution because the Scotland Act – the devolution settlement – already provides legal limits on what the parliament and the government can do,” she explains patiently.
Indeed, the late Lord Rodger of Earlsferry described this as mini-constitution for Scotland.
“It has been a unique development for us to be able to challenge legislation in Scotland. If Scotland was to become independent, there would be no alternative to a written constitution. Not having a written constitution is a bit like smoking in a restaurant; it is socially unacceptable now. We couldn’t not have one,” she says.
How the courts would relate to this and the powers they would have remains for discussion, as is the style and length of the constitution, whether it mirrors an Arbroath Declaration, a Magna Carta or the American constitution that every school pupil can recite, or a much weightier document, also needs to be determined.
“There are lots of different models you can use and constitutional lawyers in Scotland are already debating whether it should be short and sharp and highly general, which gives more room for interpretation by the courts, or a more highly detailed document, giving greater clarity,” she says, remaining firmly on the fence about which direction she prefers.
Will it include human, civil and political rights, or encompass social, economic and environmental rights? You might be wondering why a business magazine is steering into such legalistic territory, but all of this will have an impact on the future, and serious business people should have an informed view.
“There is a suggestion from those who are in favour of independence that in the event of a ‘yes’ vote there would be a constitutional-making exercise that would involve more than lawyers. I think that’s a sensible idea,” says O’Neill.
However, for O’Neill, it is imperative that constitutional change enjoys popular consent – and that the majority buys into the settlement. She advocates the American notion of ‘civics’, which means that ordinary people understand and are informed by the constitution and its often controversial amendments.
“I like the idea of civics in schools, whether we have a written constitution or not. Not just the rules but the context for the rules and rights. It’s about going beyond the superficial,” she says.
From 2000 until the present day there has been a great deal happening in the sphere of public law. With the Scottish Parliament legislating and the mechanisms of the Scottish Government developing cephalaopodic tentacles, there was flurry of policy and therefore public law work. This gradual development has included the Freedom of Information Scotland Act, in force since 1 January 2005, which created the Scottish Information Commissioner and, in addition, the creation of the Scottish Public Service Ombudsman, who handles complaints about councils, the NHS and government agencies. This has been a bounty for Brodies and O’Neill and her team.
“We acted in the first legal challenge to a decision of the Ombudsman. We were acting for Argyll & Bute Council on a question of free personal care for the elderly. This was unique to Scotland,” she says.
In this case a judicial review was taken and Argyll & Bute was successful, but the whole issue of personal care remains a complex issue.
“We then saw the beginnings of the process of challenges to the Acts of Scottish Parliament. This is unique because in the UK context we don’t generally challenge the Westminster parliament. It’s not possible to do so because of the concept of sovereignty,” she says.
Yet, elsewhere in the world, parliaments laws can be challenged.
“There have been challenges in the fields of criminal law and mental health. This firm has been involved in the commercial side when it is likely to impact on business clients,” she adds.
Indeed, Brodies was involved in challenging legislation concerning pleural plaques, an asbestos-related lung condition which is not itself a disease and usually has no symptoms. The firm represented the insurance companies writing employers’ liability insurance. It was challenge to an Act of the Scottish Parliament which came into force in June 2009, which confirmed that pleural plaques cause personal injury and enabled actions to be raised for damages.
“This was very controversial, with strong views aroused by the challengers but pretty significant legal issues at the heart to it which needed to be resolved.”
This went to the Supreme Court in London in June 2011 and the Act was declared valid but in the process the court insisted on re-writing the rules for Scotland on who could bring such challenges.
O’Neill and her team also went to the House of Lords with the first case under FoI, challenging the release of childhood leukaemia statistics on the basis that such figures might identify children who were diagnosed with leukaemia. The outcome was the statistics were not released.
“It is essential for democracy that there are checks and balances. I have no fear of legal challenge. I don’t regard courts as undemocratic, simply because judges are unelected, that’s a fallacy. Democracy is the sum of all of its parts: the judiciary, the executive and the parliamentary legislators. You need those balancing factors. This is not a criticism but it will always be a tendency for elected politicians to look to the views of the majority. In protecting the rights of minorities, it is very important that they have a legal process that can put a stop to political action,” she says.
O’Neill acknowledges the good luck and timing to be studying her specialism of ‘civics and public law’ at such a fortuitous time. Nevertheless, her arrival at Brodies coincided with the firm’s decision to expand in the field of public law.
“It is about the law which governs what the state can do, which includes any aspect of government. I act for a lot of public authorities but I also act for commercial organisations or individuals who might be affected by government or parliamentary decisions,” she says.
“Even when I was a pretty junior lawyer, the firm was prepared to invest in that practice. That’s been immensely important to me.”
If O’Neill was a stick of Edinburgh Rock, she would have Brodies stamped right through her, such is her passion for the firm. While her specialism is public law, she stepped up to represent the whole firm as chairman earlier this year.
“In our view, we are the strongest independent Scottish law firm operating in the jurisdiction, with offices in Edinburgh, Glasgow, Aberdeen and we’re the only Scottish firm with a presence in Brussels.”
She says Brodies' aim is to be ‘best in breed’, which means being the first choice in Scotland for any sector where clients want quality legal judgement. The firm has over 560 staff with 343 legal staff and announced revenues of £46 million for the year ending April 2013, which was a 7.5% increase on the previous year.
“We like to be transparent about how things are in the firm: it’s one of the advantages of being a limited liability partnership, in that you have to go to the market every year and say how the firm is doing. We think we are in a pretty strong position and we’re pleased that we’ve managed to maintain our growth throughout a challenging period for the whole market, not just for legal services. However, it is good for Brodies that there is a healthy legal market in Scotland. We need healthy competition in the market in Scotland.”
O’Neill doesn’t want to be drawn into discussion about other law firms’ woes but puts Brodies’ progress down to the firm’s clear strategic planning process.
“We have done this for more than ten years, looking at market conditions and the economy and looking at areas where we think our clients are going to need legal services. We then plan our investment and growth for the next three years around this. We also try and stick to the plan. Of course, there will be bumps and ups and downs, but having a plan makes it easier to stick to it.”
There is flexibility but the plan is to keep the firm on a steady course. How has Brodies done so well, when others have disappeared or merged in the last five years?
“One of the things we have is diversity; we’ve never had all of our eggs in the one basket. We offer the full range of legal services and we’ve been careful not to withdraw from certain sectors that might be less fashionable.”
For example, Brodies has retained a very strong private client practice serving some of Scotland’s high net worth individuals and landed families, when other commercial firms have hived off into separate investment entities. It also has a strong commercial property practice and it has enjoyed expansion in Aberdeen.
“We spent a lot of time thinking about how we could get into the Aberdeen market. We took it slowly and carefully. We were not the first Central Belt firm to open in Aberdeen. But we think the strategy we adopted, of bringing in the highest quality people from an Aberdeen base, was fundamental to making that a success.”
The proof is in the pudding with a fast-growing presence of 54 lawyers, including 13 partners, in the city and the oil and gas practice, led by Clare Munro, who held an in-house role with a supermajor before joining Brodies. Greg May, her colleague and fellow partner in the oil and gas team, was also in-house legal counsel with an energy giant.
“Oil and gas clients need lawyers who understand their industry, and we’ve drawn from an impressive talent pool who have that in-house expertise. They also have that commercial approach too,” she says.
“In all areas, we have focused on what the market needs from us. We’ve also been disciplined financially. We don’t have bank debt and we think sound financial management is key. I used to think it was nice thing we didn’t have an overdraft; now I think it is really very important.”
This financial prudence has been instilled during a prolonged period of leadership by Bill Drummond, the formidable managing partner, who remains head of Brodies’ operational board, alongside finance director David Edwards. Drummond must take much of the credit for Brodies’ long-term stability and strategic success.
“Leadership is really important at all levels of the firm. We are pretty well organised and we have a structure that has been in place for more than a decade, where there is a strategic board,” says O’Neill.
This is chaired by O’Neill, working alongside Drummond with three other partners, elected by the other partners.
“We also expect our partners to lead by example in their practice areas, to be ambassadors for the firm and to engage with wider civic society, not just the legal profession.”
One of O’Neill’s themes is on thought leadership, which is a buzz phrase, but means that the firm is seen to be participating in debates about law reform in Scotland and beyond. It is about discussing issues which impact on clients, contributing to consultation responses to government, giving evidence in parliament on law reforms, and writing learned papers on legal or academic matters.
“From a client perspective, they have confidence that their lawyers not only understand the law but the context in which they operate. We should have lawyers who have the breadth of knowledge and perspective to contribute to these debates and not just at partner level. We have to have lawyers at every level, speaking to clients, blogging if you like, and being quoted,” she says.
It is not rent-a-quote comment for the sake of it; O’Neill says it has to be the appropriate space for speaking out.
“It is not the role of the legal profession to be trying to influence policy where you have substantive political issues. But if you can give input on the workability of a proposal, the potential unforeseen circumstances or where a legislative proposal fits into the overall scheme of the law, then that is a valued contribution.”
Brodies, like all of Scotland’s law firms, operates in a highly regulated environment and needs to ensure that it has strong safeguards in place for compliance. “These are the nuts and bolts. We have a risk management committee where we have partners and colleagues whose role is to focus on risk and compliance for the firm. This committee undertakes a huge range of work to ensure compliance and improving information security, because it is on enormously important for clients.”
Then there is the ethical heart within the firm, which she says focuses on behaviour.
“This is the culture of professionalism and good governance, which is the responsibility of all the partners. The way our partners are rewarded is not just about fee-earner revenue. It is focused on a range of behavioural qualities including leadership, a collegiate spirit and sharing work and opportunities with colleagues.”
O’Neill says the first, last and only has to be the best interest of the client. “You can’t devise legal services with a view of maximising your own revenues because the client will see through that.”
In 14 years she cannot remember a situation when she has suggested to a client that litigation is the ‘best option’.
“Litigation may be a necessary option: but litigation is almost never a good thing. Public authority clients may have no option but to defend a piece of legislation or a policy. Similarly, litigation may be something that commercial clients engage in for a range of different reasons, but I can’t think of it being a ‘good’ option.”
When O’Neill started her legal career at Brodies she was taken under the wing of David Williamson, QC. [‘He was an incredible litigator and a strong influence.’] Even today when she plucks an old file from the library with his hand-writing, she laughs because she now writes like him.
She also singles out Joyce Cullen, her predecessor as chairman, as one of her influences. [‘Joyce is the whole package; she is an incredibly clever lawyer. She has great judgement. If I was in trouble, she’s my first phone call, That’s my test.’]
“What the lawyer is there to do is provide the client with judgment. This is my mantra to younger lawyers and it was taught to me by people I respect. What the client wants to know is, ‘What would you do – knowing about my circumstances and with the benefit of your legal knowledge?’ That’s not about advice but making a recommendation and supporting them through whatever choice they make. That’s the job in a nutshell.”