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Justice Secretary MacAskill blames Lord President for delays in ‘access to justice’ applications row

10 Sep

Justice Secretary Kenny MacAskill, in response to questions from David Whitton MSP on the subject of applications from legal groups seeking rights of representation to expand public choice and competition in Scotland’s legal services market, has blamed delays of over a year in considering applications on ‘hearing back’ from the Lord President’s, Lord Hamilton’s office.

Lord Hamilton‘Lord President to be told to get a move on’ Lord Hamilton is blamed by the Justice Secretary for delays in applications from non-lawyers for rights of audience & representation of the public in Scotland’s Courts system …

Justice Secretary Kenny MacAskill – Delays and buck passing – an attempts to save solicitors monopoly of legal services ?

Association of Commercial Attorneys application for rights of audience

2. David Whitton (Strathkelvin and Bearsden) (Lab): To ask the Scottish Executive what progress has been made in processing the application from the Association of Commercial Attorneys for third-party right of audience in Scotland’s courts under the provisions of sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. (S3O-4076)

The Cabinet Secretary for Justice (Kenny MacAskill): I acknowledge the attention that David Whitton has given to this issue on behalf of those who are involved, including his constituent. He has submitted previous questions and has engaged in correspondence on the matter.

Mr Whitton will know from the inquiries he has already made that the association recently clarified its status by incorporating itself as a limited company and submitted a revised draft scheme in late June. I have now completed my consideration of the association’s application and, as the process requires, I have passed my views to the Lord President. I will ensure that Mr Whitton continues to be kept informed as to progress and the outcome.

David Whitton: As the cabinet secretary said, there has been correspondence between us on the matter. When he wrote to me in June, he commented that the provisions had been in place for a year. It is now over a year since the association made its application. However, there seems to have been a flurry of activity since I lodged my question last week.

Mr MacAskill said to me previously that he would judge the application on its merits, despite his prejudiced published opinion. I now ask him when the decision will be made on the vital matter of third-party representation in Scotland’s courts. Can he get in touch with the Lord President’s office to persuade it to get a move on as well?

Kenny MacAskill: I cannot give a definite date, as it will depend on hearing back from the Lord President’s office. I advise Mr Whitton—as I did in my initial answer—that we have submitted our position to the Lord President, who will have to consider matters. I am sure that he will do so expeditiously. I am advised that he is currently on holiday—doubtless taking a well-earned rest—but I am sure that he will deal with the matter promptly on his return.

The very poor performance by Justice Secretary Kenny MacAskill under questioning over the reluctance of the Scottish Government to open the legal services market up to those applying under the existing legislation, certainly shows there is no appetite on the Scottish Government’s part to serve the public interest and give greater choice and variety to the Scots public in legal representation.

Mr MacAskill was asked at one stage during the questioning to contact the Lord President’s office “to persuade it to get a move on” … only to be met with a reply of further delay and without any definite date …

This all goes contrary to a letter from the Justice Secretary Mr MacAskill to his Cabinet Colleague John Swinney, last year, which led everyone, including Mr Swinney and the Scottish Parliament to believe a very different approach was being undertaken to such applications under Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 :

Justice Secretary Kenny MacAskill to Cabinet Secretary for Business John Swinney 26 July 2007You will be interested to know that the commencement of Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 came into effect on 19 March 2007. The Sections provide for rights of audience and rights to conduct litigation in the Supreme Courts to be granted to members of professional or other bodies, subject to approval in each case of a draft scheme embodying certain safeguards such as training programmes and indemnity insurance. The legislation does not provide for applications from individuals. 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 voice in the supply of legal service providers.”

MacAskill tight lippedJustice Secretary Kenny MacAskill over a year ago told Cabinet Colleage John Swinney I hope this reassures you that action has now been taken to increase consumer voice in the supply of legal service providers.”

John SwinneyCabinet Secretary for Finance John Swinney remains to be reassured over one year on from Mr MacAskill’s now laughable, albeit bogus claim of “increased consumer voice in the supply of legal service providers”

Importantly, the delays and unreported constant refusals of such applications for rights of audience & representation by Mr MacAskill and the Lord President highlight the dangers of having two individuals in charge of access to justice in a democracy.

It is the case, sadly, that two men, and a private self governing institution control you, the public’s access to justice and legal services in Scotland.

The two men in question are Justice Secretary Kenny MacAskill and the Lord President, Lord Hamilton. The self governing body is of course, the Law Society of Scotland which acts for the legal establishment to protect itself and its members from any changes not in its interests.

Those same two men, Justice Secretary Kenny MacAskill, and the Lord President, Lord Hamilton, are or have been members of that same private self governing institution, the Law Society of Scotland, whose purpose for decades has been to keep monopoly control of the public’s access to legal services by successfully campaigning to keep access to justice legislation out of the public’s reach for some seventeen years.

You can read just what kind of tactics the legal establishment have used to thwart competition in the legal services market in relation to access to justice reforms contained in the Law Reform (Misc Provisions) (Scotland) Act 1990 here : Lack of access to legal services in Scotland

Here are a couple of earlier reports also relevant to today’s story :

Leaked letter shows conflicting view of Justice Secretary over legal services market reform

Former Lord Advocate Andrew Hardie revealed as major obstacle in removing lawyer-advocate monopoly on legal representation

Surely in view of the difficulties those who currently control access to justice in Scotland seem to have in opening up the legal services market to competition, the issue should be passed to either a new independent body created for that purpose, or a Parliamentary Committee to ensure such applications are dealt with independently from the legal profession itself, and that effective, transparent and accountable procedures are established for opening up Scotland’s legal services market to non-lawyers sooner rather than never.

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