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Justice Secretary rejects independent regulation of lawyers and public right of choice in legal services market

20 Dec

For a political party which is supposed to pride itself in being Scottish, the SNP have left Scots high & dry when it comes to the legal system and access to justice.

The SNP if anything, are fast becoming the party of injustice, in exponential quantities as the inadequacies of the Scottish legal system constantly come to the fore in daily doses of scandal after scandal with the Government seemingly unable or unwilling to do anything about it.

The spectacular failure of the World’s End trial and the infighting it generated between the Lord Advocate & members of the Judiciary, the persistent refusal of the Crown Office to hand over evidence in the Lockerbie Trial, the consistent failures of the Crown Office to disclose evidence in many other criminal cases, leading to retrials or outright collapse of prosecutions, the lack of measures to address Police recruitment & legal reforms .. you name it, the SNP have failed it, when it comes to Law & Justice.

Based on the above, and continuing problems in the Scots justice system, you could be forgiven for thinking the SNP are not a party of law & order, despite having a number of lawyers within their ranks.

The latest SNP failure in the field of legal reforms surfaced this week (among many others) where Justice Secretary MacAskill rejected calls for an independent regulator of legal services in Scotland.

There is nothing wrong with having an independent legal services regulator. In fact, England & Wales has an independent legal services regulator, and wider access to justice as part of the Clementi reforms to open up the legal services market in England & Wales.

However, there is a problem for the SNP with having an independent legal services regulator and that seems to be because Kenny MacAskill, himself a solicitor, is afraid of an independent regulator of legal services and what it will do to his colleagues, especially the ones who fiddle & rip off their clients.

You can read Justice Secretary Douglas Mill Kenny MacAskill’s response to the OFT here : Regulation and business structures in the Scottish legal profession: Scottish Government policy statement on oft response to Which? super-complaint (pdf)

Full of bitterness, xenophobia & unashamed protectionism for a lawyers right to charge the public through the nose for anything and get away with it, the SNP’s response to the OFT closes the door firmly on hopes for a fully opened legal services market and a much needed independent regulator for solicitors.

So, Mr MacAskill doesn’t want an independent legal services regulator. Does that mean he supports letting lawyers off the hook when they are caught swindling their clients ?

Maybe examples of the likes of solicitor & Tory party luminary Iain Catto’s swindles towards his disabled client is the stuff which Mr MacAskill is supporting by not allowing an independent legal services regulator ?

Do we need a few more Iain Cattos, Mr MacAskill ? Is that why you don’t want an independent regulator to police the legal profession ?

Maybe examples of the likes of solicitor John G’O’Donnell and his 25 or so negligence claims from clients is the stuff which Mr MacAskill is supporting by not allowing an independent legal services regulator ?

Do we need a few more solicitors still in practice with 25 plus negligence claims against them and clients unaware of who they are getting as a lawyer Mr MacAskill ? Is that why you don’t want an independent regulator to police the legal profession ?

For a clue on Mr MacAskill’s motives for protecting a monopolistic business against the public interest reforms of a competitive legal services market & independent regulation, we must examine a solicitor’s values who stands firmly by the policy statements & direction of the Law Society of Scotland, who for years, have lobbied against any change to regulatory practice and the legal services market.

In general solicitors who support the Law Society of Scotland’s policy of maintaining a monopolistic legal services model, where the public are forced to choose a member of the Law Society of Scotland to represent their legal interests, and who support self regulation of the legal profession, are hostile to change, will play every dirty trick in the book to stall or thwart legislative reforms, and will lash out & attack anyone who seeks to challenge their views.

There are sadly, a good number of members of the Law Society of Scotland who subscribe to these protectionist views, and Mr MacAskill seems to exhibit quite a few of them himself. Additionally, as a member of the Law Society of Scotland, Mr MacAskill will no doubt have a vested financial interest in leaving the regulatory side of things as they are with the Law Society of Scotland, should his political career fail or end, and he has to return to the legal profession.

Mr MacAskill, perhaps for those reasons, would rather herd the Scots public who may need access to legal services, into the willing open arms of the Law Society of Scotland, who for now maintain the exclusive monopoly on access to legal services in Scotland, and of course, want to keep that huge money making business which also generates convenient political influence over the likes of Mr MacAskill for themselves. A good deal, for Mr MacAskill, and his lawyer friends, and a good deal for the SNP too as they get to control who gets access to justice in Scotland. Not a good deal for Scots though.

This much is clear – The Scottish Government’s attitude to the OFT seems to be that Scots have less of a right to access to justice & legal services than the rest of the UK.

Did Scotland expect to hear such talk from an SNP administration which seems to be more concerned with protecting the rights of lawyers to regulate their own complaints and dominate the legal services market, than investing in the Scots public interest & Scots independent freedom of choice for who represents their legal interests ?

Rejection of calls for independent regulator of legal system criticised

CONSUMER groups last night criticised the Scottish Government for not backing calls to appoint an independent regulator to monitor the legal system.

Kenny MacAskill, the justice secretary, has already made it clear that the status quo is “not an option” for the profession following the Office of Fair Trading’s decision to uphold a complaint by consumer group Which? that the current set-up hinders market innovation.

But the minister’s official response to a series of OFT recommendations revealed no plans for a new regulatory body like the Legal Services Board in England.

Mr MacAskill said he was “hugely encouraged” by the profession’s response to his call for change earlier this year.

At present, lawyers cannot go into partnership with non-lawyers, but the OFT believes consumers would benefit if these “alternative business structures” were overhauled.

Julia Clarke, a campaigner with the Which? group, said: “This is a missed opportunity to put consumers at the heart of reforms to the Scottish legal profession.

“We feel that, unless an independent body is created to regulate lawyers and advocates, consumers will be let down.”

and now for the Herald’s report on the same story :

Minister keeps alive chances of superstore lawyers

ALAN MACDERMID

The Scottish Government has not ruled out the possibility of supermarket solicitors or legal firms run by people who are not lawyers, Justice Secretary Kenny MacAskill said yesterday.

Third-party ownership of legal businesses are among the options being considered for reform of the Scottish legal system demanded by the Office of Fair Trading.

Currently, lawyers cannot go into partnership with non-lawyers, but the OFT believes consumers would benefit if these “alternative business structures” were overhauled.

This has raised the spectre of supermarkets offering legal services as they do with in-house pharmacies and optician services.

But Mr MacAskill affirmed his stance that Scotland will not be pushed into a new professional framework based on reforms in England and Wales.

After a meeting with Philip Collins, chair of the OFT, he made clear Scotland’s legal profession had to change in the light of a changing marketplace, nationally and globally. However, a Scottish solution needed to be found, he said.

The controversy has been brewing since Which?, the magazine of the Consumers’ Association, issued a complaint to the OFT that the legal set-up in Scotland disadvantaged the consumer, and called for reforms including a new supervisory body.

The government’s response makes clear there are no plans to set up a new regulatory body like the Legal Services Board in England. But Mr MacAskill set out four possible models for multi-disciplinary practices and third-party entry to legal services.

They are – law firms with a minority of non-lawyer partners to assist in the management of the firm; law firms with a minority of non-lawyer partners offering alternative legal services; lawyers in a multi-disciplinary practice who are not in majority control; and third party ownership of legal businesses.

He said: “We consider some forms of alternative structures could well provide benefits to consumers.”

But Which? campaigner Julia Clarke said: “This is a missed opportunity to put consumers at the heart of reforms. Unless an independent body is created to regulate lawyers consumers will be let down.”

Following is the Scottish Government’s weak timid response to the OFT recommendations, blindly following the Law Society of Scotland’s policy which is so obviously pro legal profession and anti public …

Scottish Government policy statement on OFT response to Which? super-complaint

Scotland’s legal profession

18/12/2007

The Scottish Government today published its response to the Office of Fair Trading report on alternative business structures for the legal profession.

Justice Secretary Kenny MacAskill made clear that Scotland’s legal profession had to change in the light of a changing marketplace, both nationally and globally, and that a Scottish solution needs to be found to the issues affecting the Scottish legal profession.

The response sets out how the Government is working with the profession and others to take forward reform, and the timetable for future action.

The main issues highlighted by the response are:

* No plans to set up a new regulatory body like the Legal Services Board in England
* Early progress needs to be made on potential new business models for legal services
* Expect Law Society and Faculty of Advocates to put forward detailed proposals for consideration by the Government and approval by their members by Spring 2008.

After a meeting with Philip Collins, Chair of the Office of Fair Trading, Mr McAskill said:

“This Government is committed to a strong and independent legal profession. We are determined that Scottish law firms should be able to compete internationally and that our legal system should be more attractive to major businesses.

“Hand-in-hand with this aim, we must improve access to justice for our citizens, and ensure that consumers of legal services are properly protected. People’s needs for legal services are very different from what they were 50 or even 20 years ago, and legal services need to reflect that. At the same time, we must protect quality and the core values of the profession.

“Since becoming Justice Secretary, I have made reform of the legal profession one of my personal priorities. As a former partner in a law firm myself, I am very proud of the profession I once practiced in. It has already changed and must change further so it continues to provide an excellent service to consumers and businesses.

“However, in considering changes to the profession we will not blindly follow an English model. I therefore welcome the OFT’s conclusion that the Scottish legal market requires an appropriate Scottish solution. We are a small country with a small legal profession – we need to use the advantage that gives us in being able to adapt quickly to new challenges.

“Last September, I challenged the leadership of the profession to bring forward firm proposals for change. I am hugely encouraged at the way in which they have responded so far. It is vital that we keep up the momentum, and the Government will be working with the profession in the early months of 2008 to turn the emerging ideas into real and practical reform.”

‘Which’ submitted a super-complaint to the Office of Fair Trading (OFT) asserting that the current regulation of Scottish legal forms restricts choice to consumers and prevents the formation of alternative business structures. In its reponse the OFT has not assumed that the changes currently being proposed in England and Wales through the Legal Services Bill will be automatically suitable for the Scottish market.

The OFT recommended that by the end of 2007 the Government should publish a statement which details its policy views on:

* How it considers legal services in Scotland should be regulated
* How the restrictions outlined in the super-complaint can be lifted
* A timing commitment for these aims

The OFT further recommended that the legal professions in Scotland take full advantage of these opportunities and that the Faculty of Advocates and the Law Society of Scotland lift any of their own practice rules which contribute to the restrictions discussed in their response.

On November 1 this year, the Law Society of Scotland published a consultation paper entitled ‘The Public Interest: Delivering Scottish Legal Services – A Consultation on Alternative Business Structures.

The issue was debated in the Scottish Parliament on November 15, when the Government’s approach was unanimously endorsed.

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Posted by on December 20, 2007 in Politics, Scots Law, Scottish Law

 

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