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Scots Law should serve the public interest, not the legal profession’s need for profit.

27 Feb

Members of the legal profession constantly talk about remaining ‘independent’ from Government, public scrutiny, and even independent from the law itself – although they use it as a business model for making themselves into an industry which ranks as one of Scotland’s greatest money making enterprises .. or money making rackets, depending on your point of view.

Many members of the legal profession who have been caught up in complaints over the years, on serious matters such as fraud, embezzlement, etc .. hardly seem to think the law applies to them – and for the main they would be correct.

Just take a look at how many fraudsters & crooks are sent to jail who aren’t members of the legal profession, set against those who are lawyers … you will soon see a difference in the statistics, and come to the conclusion as many have, that lawyers can just about get away with blue murder.

To support this conclusion somewhat, a recent investigation into a lawyer who has poorly served his clients, brought about a response from the Crown Office to one of the complaining individuals saying no action would be taken against the lawyer concerned .. despite the Crown Office going on to apparently admit that crimes had taken place …

Crown Office – crime maybe does pay, if you are a lawyer …

crown office letter

How was the law serving the public or our society in that decision from the Crown Office and countless more like it over the years …

In any case, this week has so far seen lawyers congratulating themselves in the usual way of defeating the efforts of reform, stirring up a fight between Scotland & Westminster via some sections of the media on legislation long since agreed between our two countries … and lawyers talking about how the law must serve society.

If the law ever does serve society, instead of society having to serve it, I will have something much more positive to write about.

In a Scotsman article on how the law must serve the public, I noticed a particular reference to Freedom Of Information, and how it makes a ‘valuable contribution” to public authorities being regulated in their conduct of public affairs.

To quote the article itself :

“The objective of an efficient public law is that public authorities should be regulated in their conduct of public affairs. Freedom of information makes a valuable contribution to the attainment of this objective because unless there is openness in decision-making it is all but impossible to scrutinise whether any public body has proper reasons for the decisions taken.

Freedom of information gives the public access to background papers shedding light on the factors that have in fact been taken into account and the weight attached to them, facilitating challenge to unlawful, arbitrary decisions.”

Well I would agree that at least, these were the intentions of FOI legislation, but as we see across many cases of disclosure, and refusal of disclosure … FOI does not always live up to the mark, and it certainly does nothing for the legal profession itself, because the Law Society of Scotland saw to it they have an exemption from FOI – so, FOI seems of little use against lawyers, or anything to do with the legal profession which could cause significant change.

Earlier this week for instance, I was told by a source that yet again, the Scottish Government has been prevaricating FOI requests on information relating to disclosures sought on the relationship between Marsh UK, the Royal & Sun Alliance PLC insurers, and elements of the Courts Service and other parts of the Scottish Government, on the grounds of costs of disclosing the information.

I found that slightly strange, given John Swinney’s revelations of serious corruption at both the Law Society of Scotland and Marsh UK – who are financially involved with many departments of the Scottish Government, and including the GLSS – the Government Legal Services for Scotland, who themselves will I assume, be advising against disclosure for fear of the conflicts of interest and cosy financial relationships which should be revealed to the public.

Perhaps Mr Swinney could help the situation along and see the relevant information disclosed without censorship & dictates from the Law Society of Scotland, and see that the law again, serves society rather than serving the legal profession .. where sadly our Justice Secretary will not act …

The Scotsman reports on how the law should be serving the public :

Public law must serve our society

By GERRY MOYNIHAN QC

SCOTLAND has a vibrant public law, which is undergoing rapid change through a number of influences unique to our country – change to which practitioners can contribute if they recognise the full scope for innovation that these influences present.

The first stimulus was the introduction of the procedure of Judicial Review, but that was a case of the tail wagging the dog – a change in procedure influencing the development of substantive law.

Nonetheless, it has opened the courts to participation in the principled development of public law that arrived with the New Labour agenda of constitutional reform in the shape of the Scotland Act 1998, the Human Rights Act 1998 and the Freedom of Information (Scotland) Act 2002. Their interaction has given potential for a peculiarly Scots dimension to public law.

The essence of the constitutional change effected by the Scotland Act is that it brings more of a legal content to the control of legislative and executive power in Scotland.

Subject to the exception of EU Law, English law remains grounded in the principle of parliamentary (that is, Westminster) sovereignty. Scotland is different because the Scottish Parliament is not sovereign and it is expressly provided by the Scotland Act that an Act of the Scottish Parliament “is not law so far as any provision of the Act is outside the legislative competence of the parliament”, which embraces any incompatibility with the European Convention on Human Rights (ECHR).

Courts can accordingly go beyond the political act of issuing an advisory opinion that legislation is incompatible with the convention (which is all that English courts can do relative to Westminster legislation), right up to the ultimate legal remedy of quashing legislation enacted by the Scottish Parliament.

In Scotland, this fundamental shift from the supremacy of legislation goes further and affects even the implementation of Westminster legislation. The Scottish Government does not have the power to infringe human rights, irrespective of whether the infringement is based on Holyrood or Westminster legislation.

These arrangements are not, however, undemocratic, because the rule of law does not mean rule by lawyers. In the litigation concerning the validity of the ban on fox-hunting, the courts did not ask whether the ban was a good or a bad idea.

Rather, the courts scrutinised whether, in enacting the ban, the Scottish Parliament took proper account of the human rights involved and struck a fair balance between the rights of the individuals who participate in hunting and the interests of the community. To date the ban has been upheld by the courts on the view that a fair balance was struck by the democratically elected legislature whose task it is to resolve controversial questions.

The need for a fair balance between the rights of the individual and the needs of the community runs through the ECHR and now lies at the heart of Scots public law.

There has been a suspicion in some quarters that Scottish judges went too far in deciding that a person charged with a criminal offence should be automatically acquitted in the event of an unreasonable delay in being brought to trial. That result seemed to give undue precedence to the rights of accused persons over the rights of victims of crime and the general public, who under the convention are entitled to the protection of an effective criminal justice system.

That imbalance has now been corrected by the Privy Council, which recently decided that an unreasonable delay does not necessarily require an acquittal.

The objective of an efficient public law is that public authorities should be regulated in their conduct of public affairs. Freedom of information makes a valuable contribution to the attainment of this objective because unless there is openness in decision-making it is all but impossible to scrutinise whether any public body has proper reasons for the decisions taken.

Freedom of information gives the public access to background papers shedding light on the factors that have in fact been taken into account and the weight attached to them, facilitating challenge to unlawful, arbitrary decisions.

We are at the start of a dynamic process that could lead to a distinctive public law built on a fusion of the new constitutional arrangements for Scotland, human rights and freedom of information.

The task we have is to formulate a constructive public law that is responsive to the key objective of producing a tolerant and broad-minded society which is respectful of the rights of the individual while attending to the needs of society as a whole.

• Gerry Moynihan QC is a member of Axiom Advocates. He gave last week’s Third Thursday Lecture on public law.

Anyway, while some in the legal profession lecture us on the law having to serve the public, others in the legal profession seek to deny the public even an input into long needed reforms to the legal services market, preferring to spout forth the Law Society’s policy of censorship and targeting campaigners & critics, rather than engaging the public and resolving their sins of the past, known to be many.

Here follows an article from the Scotsman, written by a lawyer, on how the legal profession view the rest of us, as we view many of them ….

The article ends with a vitriolic attack on critics of the legal profession and campaigners for change, proving perhaps that a little falling ice provides no seeing of the light .. and preferring to reinforce the Law Society’s mantra of ‘lets silence anyone who could be a threat or have input into reforms against lawyers interests’.

The Scotsman reports :

Lawyers … and other reptiles

By Donald Reid

IDLING on The Scotsman website, I found some feedback on my last piece. I’m so flattered. It’s all hate mail.

One correspondent, however, inadvertently gave me a good bit of advice, namely to read Jess Brallier’s (now out-of-print) book, Lawyers and Other Reptiles. It’s wonderful. I have always loved lawyer jokes and quotes, and this book is full of them. All I can say is the title is a bit hard on reptiles. What have they done to be cast as bedfellows with the lowest form of living scum?

My favourite quote so far is from the New Yorker: “I told you that you should’ve got yourself some legal advice before running to a lawyer.”

It hints at several of the reasons why such expressed vitriol against our noble profession so proliferates. The first reason is money. Lawyers are expensive. If you “run” to a lawyer, the chances are you’ll get a bill, and a hefty one at that. No-one likes bills, and an easy way to externalise this dislike is to blame the biller rather than the billed. In the excitement of their initial consultation, I find it hard to get clients to face the financial reality of their principled crusade, or their precarious venture. I have to tell them that the practice of the law, and the results obtainable, are not necessarily the same as the client’s perception of justice.

Yes you should think twice before going to a lawyer. The fact that the money you pay him or her is substantially to cover the overhead he or she has to maintain in order to give you the service you seek is not an easy swallow. After all, you’ve seen his/her Merc.

But the quote is tellingly ironic as well. How can you get legal advice on whether to get legal advice? The fact is you can’t really. Lawyers are no doubt expensive, time-consuming, anxiety-broking vultures (now we’re insulting scavenging birds), but they are necessary. You can’t avoid them. One of the ironic outcomes of the political drive to treat lawyers like bad children is the enormous length of the engagement letter that solicitors are now required to issue before any work is done. My tongue is not entirely in my cheek when I say that clients should perhaps get a different lawyer to check over the intended lawyer’s terms and conditions. But who checks the terms and conditions of the checker?

I think the main reason for books such as Brallier’s is this: lawyers don’t deserve it, and the lawyer-bashers know this full well. The jokes are only funny because they are jokes. They express the angers and frustrations of litigants and clients precisely because their lawyers have not caused the problems, but rather have earned a living out of them. I can understand the epithet “parasite” but it can be used, with greater or lesser justification, upon all sectors of service industry. Yes, there are some very serious cases of bent, greedy and self-serving lawyers. But if these were the norm, rather than demonstrably the tiny minority, the whole joke culture would collapse. After all, no-one makes jokes or collects pithy sayings about perverts or genocidal maniacs, bankers or any other persons held to be truly reprehensible. Do they?

These critics will say that they are the victims of bad lawyers whose actions have damaged or ruined them beyond any joking. Perhaps they are right; certainly they are humourless; but they are a minority. They allege corruption at the very core of the profession and its governing body, which is surely beyond credibility. Is it right to allow them such influence in current demands for reform? There may be a few rotten apples. But the tree is still healthy.

I’m not joking

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One response to “Scots Law should serve the public interest, not the legal profession’s need for profit.

  1. 1epc

    November 29, 2008 at 3:27 am

    The expedency of cases being mandated properly, is just scrathing the surface. What I think needs to be done, is hold the greededr more accountable for their astions. Yes, the reality of exemption is just that a reality, buit on the other hand, justice is long overdue for individuals who are being used to enhance the lifestyle of the “organization”.
    Society should take a closer look(not just at Scotland), but right here in the U.S. The patern, isn’t far apart, at all;not at all!

     

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