Non-lawyer rights of audience approved ‘with restrictions’ as Scottish Government continues to waver on access to justice reforms

14 Nov

Justice Secretary Kenny MacAskill will announce in the next week or so that Bill Alexander, Chairman of the Association of Commercial Attorneys, has finally been given rights of audience & representation in Scotland’s courts, the first time ever in Scotland, a non-lawyer (someone who is not a member of the Law Society of Scotland) has been able to break into solicitors monopoly over legal services.

This change in heart comes after the Justice Secretary sensationally blamed the Lord President for delays in processing rights of audience applications, a story which I previously reported here, along with video footage : Justice Secretary MacAskill blames Lord President for delays in ‘access to justice’ applications row

However, the expectations of a significant improvement of diversity in the public’s ability to choose their legal representatives have been tempered by apparent protests and intervention from the legal establishment who are concerned about losing their long held monopoly over Scotland’s multi billion pound legal services market.

Mr Alexander, who has fought a long campaign over some twelve years to gain rights of audience and widen the public’s choice of legal representation will face severe restrictions on what areas of law he will be able to practice, and today, an unnamed source at the Scottish Government claimed that Mr Alexander’s practicing certificate such as it is currently being worded, will only allow him to practice Construction Law – a very limiting field of representation which wont do much to widen access to justice in Scotland.

I have previously reported on Mr Alexander’s campaign to gain rights of audience & representation, which includes a Petition to the Scottish Parliament on the matter : Parliament to consider competition in legal services market as Scottish Government fails on access to justice reforms

MacAskill tight lippedSecretary Kenny MacAskill said today : “Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 came into force in March 2007. Since then there have been two applications, one by the Association of Commercial Attorneys and one by the Institute of Chartered Accountants of Scotland.”

Mr MacAskill refused to comment immediately on questions put to him as to why it had taken several successive Scottish administrations a total of some seventeen years to implement the groundbreaking Sections 25-29 and particularly why a serving Lord Advocate, Lord Hardie in June 1997 intervened in the issue and apparently urged the repeal of the access to justice legislation which had originally formed part of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

You can read my earlier report on Lord Hardie’s intervention in the access to justice issue, and read a copy of his own letter on the matter urging the repeal of Sections 25-29 here : Former Lord Advocate Andrew Hardie revealed as major obstacle in removing lawyer-advocate monopoly on legal representation

Hardly a confidence building exercise on the part of the beleaguered Justice Secretary, who would do well to start taking the initiative in Scotland’s ailing legal system, rather than the back seat driving method he seems to prefer, aloof from responsibility on all sorts of dire stories, from leaks of juror names, to unjustly withheld FAIs to even playing no part and having no thoughts on the Lockerbie bomber’s appeal …

Mr MacAskill admitted there were severe restrictions being placed on the Commercial Attorney’s application in a take it or leave it deal : “The Lord President and the Scottish Ministers considered that the draft scheme submitted by the Association of Commercial Attorneys met the requirements of the Act and the guidance subject to a few conditions. The Association has accepted those conditions and discussions are taking place to finalise the draft scheme.”

John SwinneyJohn Swinney may have been misled by Mr MacAskill over terms of rights of audience applications. This ‘take it or leave it’ approach by Mr MacAskill and the Lord President to access to justice applications under Sections 25-29 is a marked contrast to Mr MacAskill’s discussions during the summer of 2008 with his Cabinet colleague, the Cabinet Secretary John Swinney, where Mr MacAskill failed to disclose any such limits & conditions on areas of law to be set upon individuals or organisations applying to enter the Scottish Legal Services market :

Justice Secretary Kenny MacAskill to Cabinet Secretary for Business John Swinney 26 July 2007Kenny MacAskill to John Swinney : “You will be interested to know that the commencement of Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 came in to 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 choice in the supply of legal service providers.”

I have previously reported on that leaked letter from the Justice Secretary to the Cabinet Secretary in an article which you can also read the entire Parliamentary debate on the matter here : Leaked letter shows conflicting view of Justice Secretary over legal services market reform

Final questions were put to the Justice Secretary on whether the Scottish Government will now make up to individuals for the lost opportunities of access to justice, which have in the words of some severely affected the lives of those who have tried to find legal representation outside membership of the Law Society of Scotland during the time that Sections 25-29 were held off the legislative books, however an eerie silence descended on the normally frank Justice Secretary as I suppose Mr MacAskill does not wish to admit culpability where culpability does seem to exist, given it was the Government which clearly held the legislation from public use.

Taking the honest route and admitting responsibility, and making the attempt to put things right for a lot of people, would surely be the ‘right thing to do’ in this case, Mr MacAskill ? I have suggested something along these lines before such as this : The polluter pays – Why cleaning up lawyers sins of the past would be good for the public & legal profession alike

In relation to the second application, coming from the Institute of Chartered Accountants of Scotland, a Scottish Government spokesman would only say : “The application by the Institute of Chartered Accountants is still under consideration.” – however, if you wish to read what accountants can do to clients affairs, particularly a deceased client’s estate, read this.

I for one, would warn against approving the ICAS application under Sections 26-29 as ICAS’ style of self regulation against crooked accountants is generally as bad as, or possibly worse than the Law Society of Scotland.

So we are left with an impression yet again, the Scottish Government is taking one step forward and four steps backwards in the policy area of promising to widening the public’s access to justice, by on one hand, allowing rights of audience applications to be made by individuals or organisations, then heavily restricting which areas of law can actually be practised in a ‘gun to the head’ style response, thus largely maintaining the present solicitors monopoly over legal services & access to justice in Scotland.

It seems quite apparent that once again, the legal establishment, who are solely interested in maintaining their long held monopoly over legal services in Scotland, are the driving force on what will happen next, rather what should be the case of the public interest, wider access to justice, and unrivalled consumer protection being placed above those usual interests of the legal profession’s annual profits.

It is also worth noting the two individuals who must pass any access to justice applications under Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, are themselves, members of the Law Society of Scotland … surely an issue which itself should give rise to a new independent method of considering and approving such applications to enter Scotland’s legal services market …


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One response to “Non-lawyer rights of audience approved ‘with restrictions’ as Scottish Government continues to waver on access to justice reforms

  1. aweehintohelp

    November 14, 2008 at 8:45 pm

    Well, well, well, ……. Restrictions upon the area of representation, limiting it to the specific field of construction / building disputes!

    I believe that said Mr. Alexander has a law degree of some sorts, which he studied for after witnessing the dreadful “representation” service provided to a number of his clients in respects of building disputes, as provided by firms of solicitors who knew next to nothing about the construction industry, yet ran up vast “fees & expenses” familiarising themselves at his clients’ expense. I have encountered an example of this in a case unrelated to Mr. Alexander’s client base (but that case is sub judice and shall remain unnamed).

    Here’s a question of circumstance for you to ponder:- What if Mr. Alexander and/or his fellows at the Association of Commercial Attorneys receive instructions in an ongoing “construction dispute”, taking over from a firm of solicitors whose representation to date (how shall I phrase this delicately?) has been somewhat less than satisfactory. Perhaps, ex hypothesi, the solicitors in question have invoiced their former client for sums amounting to some £100,000.00 or more, yet the solicitors have failed to enter the necessary pleadings into the “Closed Record” in the Court process, in particular (again ex hypothesi) if they have failed to do so in direct contravention of explicit (even if general and terminologically non-legal) instructions to do so, which instructions they had previously received from their former client. Messrs Alexander and co will required to ask the Court for permission to have a “Minute of Amendment” received, then seek the Court’s permission that the “Closed Record” be opened-up and Amended in accordance with the said Minute of Amendment and the Answers thereto. These procedural steps being a prerequisite to present the client’s written pleadings in the proper format, in order that the client’s true case can be argued before the Court. Any such Amendment proceedings will result (almost always) in the Amending party (i.e. Mr. Alexander’s client) incurring an award of expenses against him. If there has been significant proceedings in the Court (hearings etc.) and the changes to the written pleadings are significant (say, introducing a whole new legal proposition based upon new averments of relevant factual circumstances – i.e. a new “ground of action”) and this is the ground that is more in point and more likely to be successful, then the Court has within its discretion the power to award the expenses in the cause up to the date of Amendment against the Amending party – i.e. Mr. Alexander’s client.
    In those circumstances, if the former solicitor has been inept, or worse, has failed to follow the written instructions of his client, surely the client has a stateable case for the recovery of all the costs from his former law agents, and those costs to be recovered might not be merely those incurred in the cause and awarded in favour of his opponent at Amendment, but also the recovery of all his own agent-client fees and expenses (i.e. the £100,000.00 or so) he’d paid to the former solicitors, in light of and depending upon the evidence of their negligence?

    In those circumstances, as the succeeding representatives of the client (qua successor “law agents”), would not Mr. Alexander be the only appropriate party (the one who uncovered and exposed the negligence of the former solicitor by taking remedial action to correct the errors – which incidentally would be an act in mitigation of the damages that would otherwise have been the result of the negligence in the event that the case had been lost due to the negligence) to pursue the former solicitor for the negligence?

    What comment would you make to that? I’m absolutely positive that if you asked the high heidyins the Lord President and the Justice Minister for their interpretation of how the restriction would be applied in that circumstance, they would answer that under no circumstances can anyone other than a member of the Law Society of Scotland (and therefor a co-member of the defaulting solicitor’s Master Policy professional indemnity insurance policy) raise an action for restoration of pecuniary losses resulting from alleged acts of negligence or delict by a solicitor.

    Therein lies the underlying imperative for the imposition of the restrictions. Who cares if builders are suing builders or by what means, just don’t let an outsider sue a lawyer. SHOCK, HORROR! PERISH THE THOUGHT OLD BOY!

    The whole restriction concept is going to turn out to be a meddling guddle. Far better that Mr. Alexander persists in his Petition (PE 1197) to the Scottish Parliament and gets the whole market opened up, thereby removing any potential for confusion and interference by the Law Society of Scotland – who have been and remain the DOMINUS LITIS in this whole affair.

    Good article once again Peter. Complete silence from the Hootsman and Hagrid – has been ever since Rogers went South. One does wonder whether their vaunted editorial independence has been purchased by the advertorial spread under the “LAW” heading that they publish one day a week?


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