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Scottish Executive drops FOI disclosure battle over restrictive access to Courts while thousands go without representation

05 Oct

 The Scottish Executive has decided not to take the Bill Alexander FOI disclosure battle to the House of Lords, so, unless a few documents are going to go missing (which many suspect) .. we should get some good indications soon as to the strength of the legal profession’s lobbying and all those political manoeuvres which kept those parts of the Law Reform (Misc Provisions) Act 1990 inactive, which would have opened the highly restrictive markets of legal & courtroom representation to the public – and perhaps avoided many of the problems our Scottish legal system faces today.

You can read more on my coverage of the Alexander FOI disclosure battle here :
Scottish Executive fails to block FOI disclosure on records of restricted access to Courts

Scottish Executive thought to be blameworthy for allowing restrictive practices in legal services

Many of the current problems of lack of legal representation in Scotland may not have actually existed, if access to the courts had been opened up years ago, as were intended in the Law Reform Misc Provisions Act 1990 – but for the fact of course, the legal profession saw the writing on the wall for their way of life – where certainly much of their work & income at the time came from legal aid.

Currently, if you want to get into Court, you have to use a lawyer or an advocate, and if you want to use an advocate, you have to use a lawyer – despite claims to the contrary where the Faculty protests that advocates will work direct for clients.

This was to have been broken with sections in the Law Reform Misc Provisions Act 1990, which, if implemented as they should have been at the time – the public would have had a wider choice as to whom they could choose to represent their affairs.

Sadly, this never happened, due to powerful lobbying from the legal profession which kept these much needed reforms off the books – all because of money – just in the same way the legal profession have lobbied to keep the small claims amount at a few hundred pounds in Scotland – so that for anything else, you will of course, need the services of a lawyer. Good for them, but not good for us.

Anyway, watch this space, and watch the newspapers soon for the revelations which may or may not come out in the Freedom of Information disclosure on the Bill Alexander request .. .which will depend on how honest some people at the Scottish Executive are feeling in terms of which documents are actually released …

Not to be outdone by the imminent release of such documents which may or may not portray the legal profession & the Law Society of Scotland as a bunch of political manipulators, the traditional way out of the media spotlight on such issues, is to come up with a few distractions – and we have had a few of those this week …

One of these now long running distractions, is the battle over legal aid payments between the so-called ‘family law’ lawyers, and the Scottish Executive over who gets paid what & how much from the Legal Aid budget.

While the issue is publicly portrayed by the Scottish legal profession as being a dispute solely between those ‘family law’ lawyers who make their bread & butter from legal aid, and the Executive – in reality, the strings of the major players in this battle are being pulled by those at the Law Society of Scotland’s HQ in Drumsheugh Gardens.

Helen Hughes, the Chair of the Family Law Association, is the latest of many from the legal profession to join the fray over who gets what from the legal aid budget – blaming the Executive for the alleged failure of the ‘Block Fees” system of legal aid payments and taking the easy way out …. but the reality of the situation is that it’s the lawyers who are causing what are now called ‘legal aid deserts’, as the Herald newspaper reports quoting Helen Hughes :

“Hughes, a partner in Paisley-based law firm McAuley McCarthy & Co, said: “It is, today, impossible for private individuals to find a lawyer prepared to take on interdicts on a Legal Aid basis in the Highlands and Islands, Dumfries and Galloway, the Borders, Edinburgh, Glasgow and East Kilbride. My firm is getting numerous calls each day from would-be clients in these regions pleading for representation.”

Yes .. well, of course, the problem with all this is that the legal profession has been used to getting it’s way for so long, it got used to charging what it wanted for work, getting the money from the legal aid budget and hence we have this situation today where long overdue limits on the milking of taxpayers money have been turned against the public by the legal profession, in the form of denying legal representation to those who most need it – in order to get more money. Some, would call that blackmail.

I’m sure the legal profession think their tactics are doing them a lot of good in their fight to get more money – after all, everyone at some time or another, needs legal representation – but this battle over legal aid, with all the dirty tricks, sleazy meetings with political allies & spin from the legal profession itself, just makes the argument greater for fully independent regulation of all legal professionals, and the immediate implementation of sections of the Law Reform (Misc Provisions) Act 1990, to open up access to the courts in terms of who can represent clients – currently restricted to lawyers & advocates due to some 17 years worth of lobbying from the legal profession to keep it that way.

Maybe the family lawyers should choose a new representative in their quest to gain more legal aid. How about Donald Findlay QC ? After all, he is Scotland’s top legal aid earner – and who better for the Law Society of Scotland to head such a campaign to get even more money out of the taxpayer for lawyers pockets …

Some may speculate, the apparent problems of the Law Society and the publicity drive to portray lawyers as overworked and poor .. may well be linked in the battle over legal aid ….

Here is the article from the Herald, and a couple of others I failed to mention recently – one amazingly reporting that the Law Society of Scotland is virtually broke – probably an indication of the price of keeping all those crooked lawyers away from clients they ruined – and perhaps even the rather costly battle over the LPLA Bill .. with all those favours & bungs flowing like a river I hear …

http://www.theherald.co.uk/business/law/display.var.1284691.0.0.php

Jamieson urged to turn clock back and abolish ‘block fees’
IAN FRASER March 25 2007

Family law in Scotland is under threat, says Helen Hughes, chair of the Family Law Association.

She lays the cause of the crisis firmly at the door of the Scottish Executive’s “block fee” payment system for civil legal aid work.

Since the itemised fee system was scrapped in 2003, solicitors have been earning less for civil legal aid work than they did before 1992, and families at the lower end of the social scale are finding it nearly impossible to find legal representation across a range of major family issues from child custody to divorce settlements.

Hughes has written a highly- critical letter to Justice Minister Cathy Jamieson urging her to turn the clock back and scrap the “block fee” regime.

In her letter, Hughes said: “Many ordinary Scottish people are finding that they are unable to instruct a solicitor to deal with their separation/ divorce or child care issue on a legal aid basis.

“To enable the people of Scotland to access the rights available to them by law we need a Legal Aid system which provides sufficient remuneration for solicitors. The block fee system does not provide such remuneration.”

According to Hughes, the block payment system, introduced in October 2003, has made law firms increasingly reluctant to take on civil family law cases and interdicts on a Legal Aid basis. As a result, victims of domestic violence are finding it virtually impossible to persuade a solicitor to represent them. And in recent months large tracts of Scotland have become virtual legal deserts.

Hughes, a partner in Paisley-based law firm McAuley McCarthy & Co, said: “It is, today, impossible for private individuals to find a lawyer prepared to take on interdicts on a Legal Aid basis in the Highlands and Islands, Dumfries and Galloway, the Borders, Edinburgh, Glasgow and East Kilbride. My firm is getting numerous calls each day from would-be clients in these regions pleading for representation.

The situation has become so acute that SLAB – the Scottish Legal Aid Board – is to finance its own directly employed network of solicitors in Legal Aid offices in the worst-hit areas. The first of these is expected to open in Inverness this autumn. A SLAB spokesman said it is being introduced as a “safety net.”

According to Hughes, “block fees” take no account of the fact that many family law cases are what she describes as “high maintenance”. She said: “Most such cases are complicated factually and often involve complex legal argument. In addition, we’re often dealing with people who are highly stressed, who require not only legal advice but additional guidance when their marriage or relationship ends. When such cases also involve domestic abuse and child-related issues, the time spent on a particular file rises immensely. The issue is one of access to justice.”

Hughes said, if the current regime is allowed to persist, “not only will the people of Scotland find it increasingly difficult to obtain a solicitor on a legal aid basis but those that do will increasingly find that their cases are dealt with by less experienced solicitors, which will undoubtedly have an impact in the way cases are presented to the court and in the long term adversely effect the development of family law in Scotland. Not to mention the impact on the lives of clients.

“The Executive deserves to be congratulated on their efforts in developing family law through legislation such as the Protection from Abuse act and the Family Law act.

“But if the people of Scotland are unable to find a solicitor to undertake their case on a legal aid basis one has to ask the question, “What was the point of introducing such legislation?”

A motion was unanimously carried at the Law Society of Scotland’s annual meeting in early March urging the Executive to review the rates of Legal Aid.

A spokesman for the Executive said: “We have been aware of concerns expressed by the Family Law Association in respect of fees for civil legal aid Following a recent report into civil cases by SLAB, ministers have announced that civil legal aid fees and eligibility levels will be reviewed.”

“The Executive needs to ensure public funds are used to their full potential and although it can encourage, it cannot compel private sector firms to provide legally aided services.

“A number of steps are being taken to ensure that there is a nationwide supply of legal aid services to provide access to justice for individuals.”

.. and now, the rather embarrasing story that the Law Society of Scotland is short of money … or, is it ?

http://www.theherald.co.uk/business/news/display.var.1256624.0.0.php

Wage bill pushes Law Society into the red
PAUL ROGERSON, City Editor March 13 2007

The Law Society of Scotland slipped more than £500,000 into the red last year and has revised its budgetary plans in a bid to restore depleted cash reserves.

A steep hike in the Edinburgh-based body’s wage bill was largely to blame for the loss.

In its annual report, the governing body for Scotland’s 10,000 solicitors reported a deficit of £537,000 for the year to October 31. Income climbed £365,000 to just over £6m, mainly as a consequence of increased subscriptions. However, spending soared by £762,000 to £6.6m, after salary costs rose by £495,000 to more than £3.7m.
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This increase came despite a slight fall in total full-time equivalents from 121 to 116. It includes some £88,000 in severance payments. Accounting rule changes also triggered a sharp rise in the costs of servicing staff pension plans.

Society treasurer Jamie Millar stressed in the report that although the balance sheet shows a cash surplus of £581,000, this is only because higher subs relating to the next financial year were banked early. He added: “If the advance income had been received (after the year end) there would have been a cash deficit of £851,000 at October 31. This deficit is hidden in the accounts due to timing…as the cash deficit worsens the bank overdraft is being utilised earlier and for longer each year.”

Millar told The Herald: “The Society has stringent budgetary policies and procedures in place to manage our overheads and expenditures and is presently reviewing our strategic direction. We are planning further changes to improve our effectiveness.”

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Posted by on October 5, 2007 in Law

 

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