Scottish Government’s protection for lawyers business monopoly wins, as ‘bullied’ Holyrood delays access to justice reforms until 2014

12 Feb

Kenny MacAskillKenny MacAskill vowed to protect lawyers. Greedy lawyers celebrated last night as the Scottish Parliament effectively barred the public until at least 2014 from the freedom to choose their legal representatives, as the latest petition to bring the free market to Scotland’s monopolistic legal services market, failed after intervention from Justice Secretary Kenny MacAskill and elements of the Scots legal establishment, worried their profits would tumble as people wised up to cheaper, better quality and independently regulated legal services.

Petition 1197, brought to Holyrood by Bill Alexander, who has fought a long battle to open Scotland’s monopolistic legal services market, currently controlled by the Law Society of Scotland, was closed by the Holyrood Petitions Committee after a meek hearing, with only two members of the Petitions Committee even bothering to voice their views.

Petitions Committee thwarts efforts to bring wider public access to justice in Scotland.

One of those speaking, firstly to apologise to the Committee and everyone involved in the petition, was Nigel Don MSP, parliamentary assistant to Kenny MacAskill who recently came to fame for creating a series of property transactions to allow him to claim £688 a month from the public purse to pay his mortgage.

You can read more about Mr Don’s mortgage claims here : Influencing Justice reforms in Scotland worth ‘price of a mortgage allowance’ as MacAskill’s ministerial aide gets £688 a month to fund capital flat

nigel_donNigel Don ‘got the wrong end of the stick’. Mr Don, who was ‘pulled up’ for his comments by Justice Secretary MacAskill in his letter to the Petitions Committee demanding the petition be closed, firstly had to apologise for his lack of understanding of the issues involved, which generated his earlier, somewhat lengthy talk on the virtues of using a Law Society solicitor during the first hearing of the Petition late last year.

However, Mr Don in this week’s Petitions Committee hearing, simply could not resist overtly supporting the legal profession’s demands to protect their business monopoly, and after making his initial apology, claimed that solicitors were right to defend their business monopoly, and that people who want to get into court should “get themselves qualified to do so”.

Nigel Don said this week : “My reading of the large number of words we’ve got in front of us is that basically what the professionals are doing is defending their patch which is what you would expect them to do but having said that I think they might very well be right and that really if you want to represent people in court the message is get yourself qualified to do so”.

Comparing Holyrood’s two hearings of the access to justice petition, one can see a general lack of will to bring access to justice to the Scots public …

Holyrood’s earlier hearing of access to justice Petition during November 2008

You can read about and watch the earlier hearing of Petition 1197 which took place last November, here : Scottish Parliament calls for ‘access to justice’ moves as solicitors struggle to maintain monopoly on legal business

As the current system stands, by way of rights of audience applications, which Mr Don knows full well along with the rest of us, it takes approval from the Justice Secretary, the Lord President, and seemingly a ‘back door’ approval from the Law Society of Scotland to get an application for rights of audience considered, let alone passed, for individuals or organisations to offer the public legal services in Scotland.

Justice Secretary Kenny MacAskill to Cabinet Secretary for Business John Swinney 26 July 2007MacAskill’s letter to Swinney on access to justice – Ministerial misinformation ? Difficulties in pursuing access to justice applications have been well documented in previous articles I have written on the subject, even on one such occasion, leading the Justice Secretary to mislead & misinform John Swinney, the Cabinet Secretary for Finance, over the ease of how access to justice applications were being considered by his office.

You can read more about that leaked letter from the Justice Secretary here : Leaked letter from MacAskill to Swinney on legal services ‘misleads’ Cabinet Secretary Swinney & Parliament on legal services admissions

Lord HamiltonLord Hamilton took the blame for delays. In one incident, involving the actual application of Petition 1197’s author, Bill Alexander who was seeking rights of audience & representation in the Scottish courts, the Justice Secretary Kenny MacAskill took over a year to consider matters, then famously blamed the Lord President, Lord Hamilton, for holding up approval of the application, which ended up being granted swiftly after an earlier article I wrote on the matter here, along with the video of Mr MacAskill’s pitiful blame game with the Lord President :

Kenny MacAskill plays the blame game with Lord Hamilton over access to justice applications :

Lord Advocate Andrew Hardie - Repeal Sections 25-29 of Law Reform Act 1990Lord Hardie wanted Scotland’s 1990 ‘access to justice’ laws repealed. Also let us not forget that revelations from a bitterly contested Freedom of Information request, made by the same petitioner, Bill Alexander seeking information on why Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 had been delayed for 17 years, exposed papers which implicated a former Lord Advocate, now High Court Judge, Lord Hardie, who had sought the repeal of Scotland’s very own ‘monopoly busting’ legal services legislation which if enacted two decades ago would have given all Scots more freedom of choice in legal services, rather than the continued protection of ‘use a solicitor and pay the earth if you want something legal done in Scotland’ for all these years.

Alex SalmondFirst Minister claimed arc of prosperity for Scotland, but no arc of justice for Scots ? While some in the Scottish Government continue to rant on about the ‘arc of prosperity’ of Scandinavian countries, which they promote that Scotland could have followed as a model of independence (although the credit crunch & global downturn has put paid to that), it seems the fabled ‘arc of prosperity’ which Scotland could have mirrored, does not include bringing any Scandinavian ‘arc of justice’ for the Scots public, given that those same Scandinavian countries have a much more open legal services market, which does not restrict public choice of legal representation.

ScottishGovernmentThe current Scottish Government consultation into legal services reform, dubbed “nothing more than a delaying tactic” by Scottish Government insiders, will not bring the envisaged opening up of legal services in Scotland, and delaying matters even further to the 8th program of ‘Law Reform” to be held by the ponderously slow Scottish Law Commission from 2010 to 2014 means there is, in reality, little prospect of ordinary consumers benefiting from an opened legal services market in Scotland for many years to come.

Why must Scots suffer the lack of freedom to choose their own legal representatives and competitively priced legal services when many other countries allow such a freedom of choice ?

It seems to be simply all down to the ‘greed is good’ mentality of some in Government & politics, who are no doubt financially & politically benefiting from the protection of undeservingly long held business monopolies by the likes of the Law Society of Scotland who control the closed markets of access to justice and the regulation of legal services.


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2 responses to “Scottish Government’s protection for lawyers business monopoly wins, as ‘bullied’ Holyrood delays access to justice reforms until 2014

  1. aweehintohelp

    February 12, 2009 at 8:03 pm

    Well, well, McAskill directs the Committee to brush it under the carpet and that’s an end to that then. Off you go Mr. Alexander and join in the “consultation” viz law review “Number 8”.
    In case anyone didn’t know – this consultation includes, in part, a reference to “McKenzie friend” representation which is allowed in England & Wales.
    Such assistance to an non-professionally-qualified “litigant in person” assists the Court in having the case of the unskilled (possibly inarticulate) party litigant better presented and therefore more easily comprehended. This assists the Court in reaching a “just” ajudication. This is hardly controversial.
    In Scotland, however, where the lawyers interests are placed above the interests of justice any form of skilled/knowledgeable assistance being provided to a party litigant whose case the Law Society of Scotland has decided it does not wish to have presented in Court (i.e. a negligence case against a solicitor = lawyers withdraw from acting at the last minute, etc., etc. – you know, the standard tactics) McKenzie friends are barred from assisting a party litigant from presenting any part of his case (e.g. narrow technical points of law and case references etc.).
    Voila – case dismissed on grounds of being irrelevantly pled. Please note, the facts are not considered, the case is “dismissed” for lack of relevant legal pleadings (style and form) rather than any actual “real” legal point being adjudicated upon. If a real decision is reached (i.e. an issue is actually heard and adjudicated upon) then the result of the case being lost would not be “dismissal”, but rather “assoilzie” or “absolviter”. Of such instances there are many cases in the books.
    What a shower of delinquent little time serving non-entities we have up there at Holyrood. Wholly absent any application to their duty to the public, concerned solely with (as you say Peter) maintaining their snouts firmly in the trough along with all the other wheelers.

    A quick question to you Peter :
    – do you think all the delaying tactics (kick it into the long grass of the consultation – result (if any) delayed to 2014 at the earliest) has something to do with the 5 year prescription and limitation of actions per the 1973 act?
    – or do you think it is all merely force of habit?
    – or do they truly expect to continue with their corrupt cosy little world, which borders on the operation of a protection racket that combines extortion with impunity?

    Sick to the back teeth of the lot of them, together with their unprincipled cronies in the Scottish Government and the weak knee’d lackey members of the Scottish Parliament.

    Regards – and keep on writing. This blog will one day will form an extraordinary public record of the lengths that the Scottish public had to go to in order to overturn this entrenched poision at the heart of our democracy/justice system.

  2. petercherbi

    February 13, 2009 at 11:46 am


    The way the debate seems to have went, I am beginning to think that such legal services market reforms would have a better chance of coming to fruition in North Korean than Scotland …. such as our politicians seem to be steered by lawyers, bankers & money over the years.

    Probably what is happening is a combination of all three of what you say … the legal profession and politicians have got so used to protecting each others backs, because there are so great stakes at risk in terms of their mutual benefits & profits, that no matter what is suggested by way of reforms, if it is contrary to their hold on access to justice in any way shape or form, those reforms, will be talked away into the grass, or in some instances, allowed to happen (such as in the case of the SLCC) then taken under the wing again to ensure no meaningful change occurs.

    It all comes down to money as many people are now realising, and there is a lot of money (and political influence) at stake if the legal profession loses its monopoly on public access to justice.


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