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Conflict of Interest : Replacement called for Holyrood Tory Justice Convener, too close to legal business interests for public good

04 Dec

Bill Aitken MSP, the current Scottish Conservative’s Justice Spokesman lacks impartiality in debates & investigations on legal issues. Mr Aitken, however, is mired in conflict of interest issues relating to support for the legal profession’s expressed desire to retain monopoly on legal services and regulation.

As Convener of the sole Justice Committee at Holyrood, the public interest is not being served by such activities & opinions Mr Aitken has engaged in and expressed, activities & opinions which relate directly to attempts to kill off widely accepted and much needed public interest reforms to the Scots legal system. Mr Aitken should either resign his position, or be replaced in the Conservative’s Justice portfolio to make way for someone who can handle impartiality and free, open debate.

Letter to Scottish Conservatives leader Annabel Goldie regarding Bill Aitken

Annabel Goldie re Bill Aitken 3 December 2007 Page 1Annabel Goldie re Bill Aitken 3 December 2007 Page 2

We must turn to the past to see Mr Aitken’s work for the legal profession, and a detailed history of how the Scottish Conservatives have treated the issue of legal reform …

The Scottish Conservatives have a chequered history when it comes to reform of the legal profession.

True, it was a Conservative Government which passed the Law Reform (Miscellaneous Provisions) Act 1990 which gave us the Scottish Legal Services Ombudsman and also of course, the now infamous Sections 25 – 29, which were designed to open up the legal services market for Scots long before anyone else thought of it.

Well, the Scottish Legal Services Ombudsman has as we all know, been of limited use in regulation of the legal profession .. mainly because the office did not have statutory powers of enforcement, nor, for the main, would it dare make the necessary recommendations to reform regulation of solicitors in Scotland, for fear of upsetting the Law Society and the legal establishment.

We all know the fate of Sections 25-29, the ground breaking legislation which was designed to open up access to legal services in Scotland long before Clementi took shape in England & Wales … it simply was not implemented until this year, some seventeen years later than it was designed to be implemented, due to a constant lobbying from the legal profession to keep control of access to justice.

Seventeen years is a long time for a profession, an industry, to be allowed to stall legislation which clearly was in the public interest, to allow wider access to justice & legal services, and bring down the cost of using lawyers …

You can read the latest installment on Sections 25-29 and opening the legal services market to greater choice here :

Scots Government has ‘no appetite’ for legal change

IAN FRASER

Scotland’s government and legal establishment has been accused of continuing to drag its heels on reforms intended to open up the justice system and reduce the costs of litigation.

Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 were intended to end the country’s legal closed shop by allowing people other than advocates and lawyers to have rights of audience in Scottish courts.

However the four sections of the 1990 act were dormant on the statute book for 17 years. They were finally implemented in Scotland by Jack McConnell’s government on March 19. However, nine months on, no professional bodies have secured rights of audience for members.

The rights, which ended the legal closed shop in England and Wales in 1997, can be granted to professional organisations but not to individuals. The Scottish Government is insisting that, in order to qualify, any professional body must prove it has certain “safeguards” in place, including codes of conduct, training programmes and indemnity insurance.

Campaigners for access to justice suspect the Scottish government’s failure to act on the reforms is because neither the justice secretary Kenny MacAskill nor the Lord President – who together must approve each and every application – have the appetite for change. The Association of Commercial Attorneys, whose 20 members specialise in handling construction industry disputes, applied for rights of audience in Sheriff courts on June 29. Last month, the body was disappointed to receive a letter from the Lord President, Lord Hamilton suggesting it was insufficiently well-established to be able to properly regulate its own members and therefore that it would probably find itself ineligible for rights of audience.

David Whitton, Labour MSP for Strathkelvin and Bearsden, believes this is pure protectionism. He challenged MacAskill on this during a recent debate on the legal services in the parliament, and has sent three subsequent written questions on the matter. During the debate, Whitton asked MacAskill why the rights had not yet been granted to anyone. Whitton said: “I urge the cabinet secretary to put aside his earlier prejudice and give the people of Scotland the affordable choices that currently are enjoyed in the rest of the UK.”

However MacAskill said he was “not convinced” that sections 25-29 would be of any benefit, and that he had not changed his views on the matter since writing an article in the Scotsman in February 2006. In this MacAskill said he had “yet to be convinced that the move would benefit the legal service, rather than make the situation worse There are good reasons for having a monopoly-regulated profession; otherwise, how do you regulate those not part of the organisation?”

MacAskill’s public hostility to change appears to contradict what he said in a leaked letter to cabinet colleague John Swinney. In this, MacAskill said: “You will be interested to know that the commencement of the sections came in to effect on 19 March 2007 Guidance has been prepared that covers in some detail the provisions to be contained in draft schemes and the consideration of applications. I hope this reassures you that action has now been taken to increase consumer choice in the supply of legal service providers.”

A spokesman for ACA said: “We are concerned that the cabinet secretary for justice – who has an involvement in the consideration of our application – has formed a view without putting forward any evidence to substantiate how he has arrived at his position.”

Can any political party say they were clean on this ? Well, after seventeen years of all parties sitting back, and failing to do anything on this issue, the answer of course, is “No”.

The SNP, Labour, the LibDems, and of course, even the Conservative Party, who authored Sections 25-29 in the first place, all share the streak of guilt in allowing lawyers to obstruct and withhold legislation from the public which would have saved everyone a great deal of money, allowed anyone access to justice more so than has been available until now, and may well have made the Scottish Justice system a lot more credible than it is today .. if it has any credibility at all left that is …

When 1999 came around, and Scotland gained it’s Parliament at Holyrood, there was a Conservative with a differing view on legal reform. His name is Phil Gallie.

Addressing the issue without need of recourse to the legal profession, Mr Gallie put forward the issue of reform of the legal profession to the then Justice & Home Affairs Committee, Chaired at the time by Roseanna Cunningham MSP.

Unfortunately, the 1999 version of today’s Justice Committee retired Mr Gallie’s proposal, on the basis it had too much business for the time, but, undaunted by a lack of will on the part of some to look into how the legal profession ran itself, and the Justice system, Mr Gallie again brought the issue before the Justice 1 Committee of the Scottish Parliament in 2001, then Chaired by Alistdair Morgan MSP, and was successful in gaining a Parliamentary investigation into regulation of the legal profession.

Phil Gallie’s attention to detail, understanding of the complex issues, and service to his constituents in this effort was substantial and effective. I know, because I was one of those who asked Mr Gallie to put forward the issue, on both occasions, 1999 and 2001.

Scotland on Sunday 2001 : Phil Gallie secures legal profession inquiry

Legal Profession in the dock over complaints about self regulation Scotland on Sunday February 2001

2001 was then set to be a good year and for the first time, would see a significant Parliamentary investigation into the workings of the legal profession, buoyed by the fact that the likes of Phil Gallie was a member of the investigating Justice 1 Committee which would do the work, leaving no stone unturned in the Justice 1 Committee’s investigation of the legal profession. However, this was not to be.

After the summer recess, the Justice 1 Committee under the Chairmanship of Christine Grahame MSP (SNP) took up the terms of the inquiry and began establishing it’s remit.

Phil Gallie, still the Conservative Justice spokesman and member of the Justice 1 Committee began to ask questions which indicated he would be seeking substantive answers to the way the legal profession, and particularly the Law Society of Scotland conducted itself, in all things from regulatory issues to that of business, and policies towards clients, even client complaints.

Mr Gallie began to ask searching questions at Committees of the issues to be raised in the Justice 1 Committee’s “Regulation of the legal profession” inquiry, so much, and so detailed, the Conservative Party boss, David Mcletchie MSP, himself a lawyer with Tods Murray, replaced Mr Gallie with Lord James Douglas Hamilton, then an MSP, in the Scottish Conservative’s Justice portfolio, to ensure Mr Gallie would not have the chance within the Justice 1 Committee to ask the searching questions needed in the intricate inquiry into lawyers …

After Mr Gallie’s forced replacement in the Justice portfolio by David Mcletchie, the chance for a reasonable inquiry in 2001 was lost. Indeed, the remaining members of the 2001 Justice 1 Committee, including SNP Convener Christine Grahame, turned the “regulation of the legal profession” inquiry into a vote of confidence in the Law Society of Sotland, and went so far to deny the public access to much of the submitted information, even denying public appearances & testimony from people who were easily able to destroy whole sections of blatantly false testimony before Parliament by the legal profession.

I was of course, one of those who were barred from appearing before the 2001 Justice 1 Committee inquiry, even though it was Phil Gallie who had secured the inquiry after my campaign, along with a great many others, to get such an investigation.

After Christine Grahame’s Justice 1 Committee made a mess of the investigation into lawyers, the issue reverted back to the Scottish Executive and campaigners to pursue, and in 2006, the Legal Profession & Legal Aid Bill, was presented to the Justice 2 Committee of the Scottish Parliament for investigation and consideration.

Annabel Goldie MSP was Convener of the Justice 2 Committee in 2006, being also the Conservative’s Justice Spokesman. Annabel Goldie was, and is also of course, a solicitor, and thus a member of the Law Society of Scotland, which would figure highly in such an investigation, so, Ms Goldie, fearing a conflict of interest in her position as Convener and also a solicitor with a vested interest against the terms of the LPLA Bill, resigned her position as Convener, and fellow Conservative David Davidson MSP was elected in her place as Justice 2 Committee Convener.

From the Scotsman 21 February 2006

Scots Tory leader steps down from key post to avert row

MICHAEL HOWIE

THE leader of the Scottish Conservatives has resigned from a key parliamentary post in an effort to head off a “conflict of interest” row.

Annabel Goldie is stepping down as convener of the powerful Justice 2 committee just before it begins scrutinising proposals for a major shake-up of legal services, including plans for an independent legal complaints body.

Ms Goldie is a partner in the Glasgow law firm Donaldson, Alexander, Russell & Haddow and a member of the Law Society of Scotland, which under the proposals will see its powers of self- regulation reduced. She is no longer a practising solicitor, but despite that has decided to quit to avoid a potential conflict of interest.

She said: “I have intimated to the parliament my desire to step down from the Justice 2 committee.

“This is a suitable time to do so as the committee will be looking at legislation on the regulation of the legal profession. Stepping down now avoids any perception of a conflict of interests.”

Under rules of parliament, committee members are expected to disclose a potential conflict of interest, but are not required to step down.

Political opponents questioned how long she could have continued such demanding twin roles.

Nicola Sturgeon MSP, the deputy leader of the SNP, said: “I have always wondered whether she could combine being leader of a party with leader of a committee.”

The Justice 2 Committee’s inquiry into the LPLA Bill began swiftly in early 2006, and addressed many of the failings of the past attempts to look into the issue, including the failed SNP chaired version of 2001-2003 which managed to make matters worse for Scots when it came to legal services & regulatory reform.

After stormy questioning sessions, which saw revelations of direct interference by Law Society Chiefs such as Douglas Mill in client cases against negligent lawyers, revelations of many anti client policies, false testimony from insurance firms, themselves indicted on corruption charges for market fixing in other countries, open confrontations between Law Society executives and politicians on conflicting evidence & testimony, the public were finally allowed to speak and have their day in Parliament, attesting to experiences with the Scots legal profession, so much, and so bad, the LPLA Bill cleared the Justice 2 Committee with a recommendation for vote & passing into law.

See my earlier reports on goings on at the LPLA Bill hearings in the Parliament :

The Corrupt Link Revealed – How the Law Society of Scotland manages client complaints & settlements.

Victims of the Scottish Legal Profession testify before the Justice 2 Committee, Scottish Parliament

The Law Society of Scotland did not take the prospect of losing control of complaints lying down of course … and mounted an intense public campaign of obstruction, deceit and threat to prevent the LPLA Bill being passed, and sequestered the support of several MSPs to put forward their views and amendments to the Parliament. One of those taken on board by the Law Society to promote the legal profession’s campaign against reform, was Bill Aitken MSP.

While Law Society Chief Executive Douglas Mill was busily preparing a legal challenge against the Scottish Parliament & Executive over the passage of the LPLA Bill, by drafting in the English QC Lord Lester of Herne Hill to author a bizarre opinion that ‘it was a lawyers human right under ECHR to regulate complaints against lawyers’, Bill Aitken was steadily discussing & preparing a raft of amendments to the LPLA Bill which the Law Society of Scotland required to be implemented before the bill would finally pass.

In short, Bill Aitken was the Law Society’s gun, placed to the head of the Parliament.

One of the amendments Mr Aitken raised against the LPLA Bill, was the Law Society’s demand that the LPLA Bill’s proposal of a £20,000 fine limit which the new Scottish Legal Complaints Commission would be able to impose & enforce on lawyers found to be crooked, would be reduced to a meager £5,000, making the fine system proposed in the bill useless. Mr Aitken was acting for the legal profession in proposing such amendments, certainly not the public interest

See my earlier reports on Mr Aitken’s actions on behalf of the legal profession against the reforming LPLA Bill here :

Law Society of Scotland lobbies Scottish Parliament to pass anti consumer amendments on LPLA Bill threatening Court action if demands not met

Amendments to Scottish Executive LPLA Bill reveal possibility of contempt charges against Law Society officials.

Many of Mr Aitken’s amendments did not pass, including that of limiting the fine system for crooked lawyers, but his actions demonstrated a clear course of support and affiliation to the Law Society of Scotland, and thus, a support for the actions and words of the Law Society of Scotland and many of it’s officials in the debate on the LPLA Bill.

Notwithstanding the efforts of Mr Aitken, the Law Society, and their allies to prevent passage of the LPLA Bill, the legislation was passed after a debate in Parliament in December 2006, which even saw John Swinney MSP enter the fray once again, informing Holyrood he was in possession of even more evidence to show a culture of interference, obstruction, and corruption at the Law Society of Scotland when it came to regulatory practice.

Legal Profession & Legal Aid Bill finally passed by Scottish Parliament, with amendments.

You can view some of Mr Swinney’s comments during the 2006 LPLA Bill debate in which he reveals significant problems with access to justice and corruption within the Law Society of Scotland by visiting InjusticeTV.

The Legal Profession & Legal Aid (Scotland) Act 2007, as the LPLA Bill is now known goes forward in implementation, although scattered reports of interference and threat from the Law Society still reach me, particularly it seems, interference in the formation of the new Scottish Legal Complaints Commission, in which a senior source at the Scottish Government claims “the SNP don’t have a clue on how to go about this” and “the Law Society are never off the phone these days” badgering against the full spirit of the LPLA Act .. as could be expected.

However, the LPLA Act is not the only piece of legislation to change the Scottish legal landscape which is worrying lawyers.

Even more worrying to the legal profession, is the idea of opening up the legal services market and thus breaking the monopoly on access to legal services currently held by lawyers & advocates, where, if you want to get to court, or use critical legal services, you must use a solicitor who is a member of the Law Society of Scotland.

See an earlier report I wrote on OFT recommendations to open the legal services markets and the Law Society’s resistance to those public interest reforms here :

OFT recommends lifting of lawyers monopoly on access to justice & legal services in Scotland

Law Society of Scotland reject Which? ‘interference’ & “super complaint” to OFT against lawyers monopoly on access to justice

The Law Society of Scotland support retaining the monopoly on access to legal services, and restricting your choice of legal services & legal representatives. The Law Society of Scotland also supports retaining exclusive control over regulation, and has threatened legal challenges if it is not allowed to remain in charge of complaints.

Bill Aitken, who is now the Scottish Conservative’s Justice spokesman and also the Convener of Holyrood’s sole Justice Committee, which must consider issues such as these, also supports retaining the monopoly on access to legal services – in the interests of keeping the profits of the legal profession healthy, and as I have reported above, also supports lawyers retaining control over regulation, so far as to even congratulate and praise the very same people who have threatened Parliament & the Government with legal challenges if their professional interests are not met and served.

You can read about Mr Aitken’s recent comments & policy on legal reform here :

Access to Justice : Holyrood Justice Convener praises Law Chief who threatened, lied to Parliament, while SNP dither on reforms

The question is, or perhaps I should say, the standard is : would Annabel Goldie MSP have done the same in her position as Justice Spokesman & Convener of a Justice Committee ?

Would Annabel Goldie have publicly supported retaining a monopoly on legal services and denying the public access to justice if she had been Convener of a Justice Committee ?

No, I don’t think she could have supported such an outright protectionism as Convener of the Committee responsible for considering it. Ms Goldie is a solicitor, she has a vested interest in retaining a monopoly of legal services, and in any case, the wider public interest must be served by a Convener of a Parliamentary Committee, not that exclusively of a profession or a supporting profession.

Would, perhaps, Annabel Goldie have publicly supported retaining control over regulation and proposed amendments to legislation which came direct from the Law Society itself if she had been Convener of a Justice Committee ?

I doubt very much Ms Goldie, in a position of being Convener of a Justice Committee, would have supported the Law Society retaining control of regulation, as again, she is a member of the Law Society of Scotland, and has a vested interest in her governing body retaining control over regulation. This very issue is why Annabel Goldie resigned her position as Convener of the Justice 2 Committee in 2006.

Bill Aitken, while not a solicitor, shares those same conflicts of interest, perhaps to a greater extent, given his willingness to propose anti public amendments to much needed public interest reforms, and express support for the Law Society and individuals within the legal establishment who have directly threatened the Parliament & Government with legal action if their wishes were not met.

Mr Aitken’s position on these issues, as Convener of the single Justice Committee now in the Scottish Parliament, and Scottish Conservative Justice Spokesman, does not serve the interests of impartiality and the public interest. He is expressly serving the legal profession in his views and deeds, and as Convener his view may well be unduly influential. He should therefore be replaced.

The same high standards of impartiality and avoiding of conflict of interest, demonstrated by Annabel Goldie, who respectfully and admirably, applied to herself in 2006 and resigned from the Justice 2 Committee to serve the public interest, should now be applied to Mr Aitken.

The Scottish Conservatives therefore need a new Justice spokesman, and Parliament & Scotland need an impartial Justice Committee Convener dedicated to serving everyone’s interests, not exclusively the professions & business.

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1 Comment

Posted by on December 4, 2007 in Politics, Scots Law, Scottish Law

 

Tags: , , , , , ,

One response to “Conflict of Interest : Replacement called for Holyrood Tory Justice Convener, too close to legal business interests for public good

  1. davidorkin

    December 4, 2007 at 7:29 pm

    Thank you for providing all this legal background. I found this post to be very interesting.

    David Orkin

     

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