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Scottish Parliament calls for ‘access to justice’ submissions as solicitors struggle to maintain monopoly on legal business

21 Nov

The growing public lack of access to legal services and choice of legal representatives has come into sharp focus at the Scottish Parliament this week, as the Petitions Committee considered Petition PE1197 from Mr William Alexander of the Association of Commercial Attorneys, asking the Scottish Parliament “to urge the Scottish Government to reform the legal system to adopt the Scandinavian system of allowing unrestricted access to legal representation before the court for example by allowing non-lawyers to appear in court on behalf of other parties.”

Holyrood calls for submissions on Access to Justice


I have reported on Petition PE1197 in an earlier article here : Parliament to consider competition in legal services market as Scottish Government fails on access to justice reforms

The Petitions Committee agreed to seek responses on the issues raised in the petition from the Scottish Government, Faculty of Advocates, Law Society of Scotland, Scottish Law Commission and the Scottish Legal Complaints Commission.

However, members of the Committee did not feel moved to ask the public for their own submissions on how difficult it has been to secure access to legal services and the Scottish Courts system, for fear it seems of receiving detailed and harrowing accounts of how members of the public themselves have been prevented from securing access to justice in Scotland.

If however, you feel you have been denied or hindered from obtaining access to legal services, legal representation, or access to Scottish Courts, you can write a submission to the Scottish Parliament’s Petitions Committee on your experiences or problems with access to justice in Scotland and email it to : petitions@scottish.parliament.uk

Contact details of the Scottish Parliament’s Petitions Committee :

Scottish Parliament Petitions Committee,
Scottish Parliament
Edinburgh EH99 1SP

Clerk to the Committee: Fergus D Cochrane
Assistant Clerk: Franck David
Assistant Clerk: Zoé Tough
Administrative Support to the Committee: Eileen Martin
Contact: 0131 348 5982
RNID Typetalk service: 18001 0131 34 85982
Fax: 0131 348 5088

During the short four minute presentation of Petition PE1197, Bill Butler MSP (Labour) suggested there were specific points that responses should be sought on whether a precedent on widening rights of audience had been set after the the Scottish Government had granted rights of audience (albeit restricted rights of audience) to the Association of Commercial Attorneys giving a right to conduct litigation and secondly whether there are plans to expand those rights of audience to other groups and whether such changes are desirable … and what impact there would be on the legal system in the light of such changes.

I reported earlier on the Association of Commercial Attorneys being given limited practising rights here : Non-lawyer rights of audience approved ‘with restrictions’ as Scottish Government continues to waver on access to justice reforms

However, spectators to the debate were troubled by Nigel Don MSP who seemed to drift off in an interpretation of Petition PE1197 as being that of a request to allow anyone to represent themselves in the Courts, which of course, is not what is being asked via the petition.

One spectator to the debate said “Mr Don seems to have got the wrong end of the stick which is worrying as he is a member of the Justice Committee, and I would have thought his experience in legal issues and the fact he is the Parliamentary Liaison Officer to Justice Secretary Kenny MacAskill would have ensured he picked up on exactly what the petition was about which is widening rights of access to audience & representation for non lawyer professionals to represent members of the public, rather than what Mr Don claimed which was people being able to represent themselves in court”

A source close to the Petitions Committee claimed “the Law Society may try to undermine the petition at a later stage because they (the Law Society) wouldn’t be happy others were attempting to encroach on solicitors business”.

We must expect a degree of obstruction from the legal profession to the public’s wishes of wider access to justice as solicitors and the legal establishment have been far too used to holding a monopoly over legal services in Scotland for hundreds of years, a monopoly which has brought billions of pounds of profits to Scotland’s legal firms that many solicitors wish to keep for themselves in what is currently a very anti competitive, protectionist Scottish legal services market.

Opening up access to justice in Scotland, by granting rights of audience to non lawyer qualified professionals who are independently and effectively regulated would go a significant way to addressing the problems of many across the country who have been denied access to justice by a legal system which currently allows the legal profession to effectively chose the clients and cases it wishes to represent, and at costs to clients, which the legal profession currently determine itself.

Clearly there is a genuine public interest in the progress of Petition PE1197, where many individuals in Scotland, and indeed, whole groups of people have found their access to justice hindered or prevented by the likes of the Law Society of Scotland and other industry groups & regulators who don’t wish to see certain kinds of cases or individuals gain access to legal representation or Scotland’s Courts.

I therefore urge anyone who feels their access to justice or access to legal services have been restricted or denied, to make a submission to the Scottish Parliament on their experiences.

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One response to “Scottish Parliament calls for ‘access to justice’ submissions as solicitors struggle to maintain monopoly on legal business

  1. aweehintohelp

    November 21, 2008 at 8:33 pm

    Oh dear Mr. Dunn.

    I think you rather misunderstood the issue.

    In Scots Law it is a fundamental and long established undisputed right that an individual may present his own case (especially a defence) in Court. Such people are called “Litigants in person” (in the old term) and or “Party Litigants” per the present day Rules of Court.

    The Petition is really seeking the equivalent of the right of an individual to appear as a “Makenzie Friend” (as allowed in the law of England & Wales) on behalf of another individual. It seeks to remove the absolute denial of any “right of audience” to anyone who is not an “approved professional person”. The Petition seeks to question whether this restriction should be there at all or whether, rather, it should be open to all-comers as in Scandinavia (Sweden and Finland).

    The CORE ISSUE being raised relates to the following: if an individual cannot get “professional representation”, at present his only option is to act as a “litigant in person” / “party litigant”. The individual is at a great disadvantage (as Mr. Dunn noted by his questioning of the advisability of adopting this course) given his absolute lack of experience of presenting a case, but even more relevant, is his absolute ignorance of the Rules of Court and the absence of any knowledge of court procedure. Accordingly, the Petition seeks to raise the question – would it not be better that this unfortunate unrepresented individual was allowed to ask a more articulate “friend” to come and speak on his behalf and present the case for him, rather than as occurs in the present state of affairs, where the Court requires that he attempt to present his case by himself no matter his discomfort or inability to articulate a reasoned argument?

    Mr Dunn did of course raise the issue of the duties and obligations of a solicitor appearing in the Court, by stating that such a solicitor does so as a quasi Officer of the Court. In Scotland this is not established under direct statute as I understand is the situation in England, but it is established by practice and in terms of the authority delegated to the Law Society of Scotland and by the Society’s Rules & Regulations being approved by the Lord President (the senior Scottish Judge).
    It is of course the express duty of an Advocate or Solicitor Advocate that he must bring before the Court ALL THE RELEVANT LEGAL AUTHORITIES which may have a bearing on the case. The following words excerpted from a Judgement from the House of Lords sets out the principle rather well:–
    “…this house expects, and indeed insists, that authorities which bear one way or another upon matters under debate shall be brought to the attention of their Lordships by those who are aware of those authorities, whether those authorities. This observation is quite irrespective of whether or not the particular authority assists the party which is so aware of it. It is an obligation of confidence between their Lordships and all those who assist in the debates in this House in the capacity of counsel. … It was the duty of such persons, if they were so aware, to have directed the attention of leading counsel to the section and to its possible relevance, in order that they in turn might have brought it to the attention of their Lordships. A similar matter arose in this House some years ago, and it was pointed out by the then presiding judge that the withholding from their Lordships of any authority which might throw light upon the matters under debate was really to obtain a decision from their Lordships in the absence of the material and information which a properly informed decision requires; it was in effect to convert this House into a debating assembly upon legal matters, and to obtain a decision founded upon imperfect knowledge. The extreme impropriety of such a course cannot be made too plain. ….”

    It is impossible to believe that this benevolent and proper conduct occurs all of the time (as indeed was the case of the conduct being criticised by their Lordships quoted above), and indeed the Judiciary themselves are aware that this is not always the case, as their questioning from the bench reveals. However, cognisance must be given to the fact that our system of judicial determination is one known as “litis contestation” – it is a contest of competing argument, and the principle upon which it is founded is that (hypothetically – all things being equal) the contest will bring to light the true issues before the Court so that the Court’s decision will be given upon the true circumstances and actual legal relationships which are at the heart of the dispute between the parties all in accordance with the established law. The downside is that if you have an inept representative, you may get a bad result.
    It is for this reason that a party litigant is at an even greater disadvantage than he can imagine; he/she will be without comprehension of half of what is underpinning the discussion that is taking place before him/her. It is one thing to hear the words specification and relevancy, and have a vague idea of their meaning, it is quite another to comprehend the legal definition and to follow the interpretation of those two words in respect of the subject matter of a legal debate.
    The presence of a party litigant in the court will indeed slow things down and may result in injustices going uncorrected – the malversant party escaping due to the inept presentation by the party litigant. The actual decision by the Judge may well be entirely legally correct, given the Rules of Procedure and written condescendence etc., but the result may still be unjust in the broader sense.
    Surely the opening up of the system might be in the interests – not merely of the smoother operation of the system by removing from some of the least articulate “litigants in person” the burden of trying to articulate their case (who would in the main be gladly relieved and happy to pass the task to a “Mackenzie Friend”); but also in the interests of natural justice by (even if only slightly) levelling off the playing field a bit.

    The present monopoly being a denial of access to justice (allowing the monopolist to pick and choose who gets access to justice), would the loosening of the prohibition against the appearance of a “Mackenzie friend” not tilt the system a bit in favour of the consumer of the “dispute resolution service” that is the civil court system in Scotland?

    If the “Mackenzie friend” were required to always be acting “gratuitously”, then the chancers and confidence men (like Martin Frost) might be repelled. That is the main danger – charlatans posing as able representatives – and the removal of the ££££ might keep them at bay (what other incentive might there be for such people?).

     

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