McKenzie Friends for Scotland ‘a human rights issue’ as petition response accuses Scottish Government of blocking access to justice reforms

15 Sep

Scottish GovernmentScottish Government officials accused of consistently blocking access to justice reforms. The latest responses to the Scottish Parliament petition to bring McKenzie Friends to Scotland’s courts, accuse current & successive Scottish Executive administrations of ‘deliberately and wilfully obstructing access to justice reforms in Scotland’ while identical legislative reforms which were implemented in the rest of the UK up to forty years earlier and without problem, before even being considered for action by Scottish Ministers.

So damaging have these forty year long delays been to Scots access to justice, the petitioner and indeed many others are now warning Holyrood’s Petitions Committee “against leaving the introduction / issue of a McKenzie Friend to the Justice Department of the Scottish Government”, citing several examples of horrific delays to law reforms in Scotland and a remarkable lack of action, giving way to an almost prejudiced approach by Justice Department officials to implementing legislation which has mostly passed without incident or obstruction in the rest of the UK many years ago.

0002McKenzie Friend response condemns political resistance to improving access to justice. In a direct quote from responses received by the Scottish Parliament, it is claimed : “The Justice Department and its predecessors have had a long held resistance to any attempt to create greater access to justice and they cannot be trusted to act in the interests of the Scottish people. In 1995 they ignored a direct instruction by the Secretary of State for Scotland Michael Forsyth, to commence Sections 25-29 of the Law Reform (Misc. Provisions) (Scotland) Act 1990, despite the fact that the [then] Lord President Hope had agreed to the commencement of the legislation.”

You can download & read the latest response to the McKenzie Friend petition HERE and view other responses on the Scottish Parliament’s website here : Written Submissions for Petition 1247

michael forsythScottish Secretary Michael Forsyth’s instructions to enable access to justice laws were defied by civil servants. Sections 25-29 of the Law Reform Act 1990, commonly accepted as the first attempt to break open lawyers control over the legal services market, came to nothing due to resistance from both politicians, many of whom were too close to the Law Society, and civil servants, who themselves apparently wanted to leave the Law Society in charge of access to justice in Scotland, even to the point of defying Ministerial orders issued by the then Scottish Secretary Michael Forsyth, to implement the access to justice changes in order to benefit Scots choice in the legal services market.

Swinney & MacAskillCabinet Ministers promised each other reforms were enabled but reality told a different story. Even though Scotland, England & Wales implemented the 1990 Law Reform Act in 1990, it took another 17 years (and having to survive one secret attempt by a serving Lord Advocate to repeal Sections 25-29) before the Scottish Government decided in early 2007 to enact those sections of the law allowing non-lawyers to enter Scotland’s legal services market, while the same sections of law were enacted in England & Wales almost instantly in 1990. However, even after letters passed between Justice Secretary Kenny MacAskill and the Cabinet Finance Chief John Swinney during mid 2007 alleging all was well with applications by non-lawyers under Sections 25-29, it took nearly 16 months of dithering, passing the buck and arguments between the Justice Secretary and the current Lord President, Lord Hamilton, before one single application from the Association of Commercial Attorneys under the 1990 terms being passed under being passed under highly restrictive conditions.

A litany of delays to other significant reforms in laws benefiting ordinary Scots have been attributed to the same ‘resistance’ at the Justice Department who seemingly wish to keep the dangerous Law Society of Scotland in charge of the individual’s access to justice. Some examples of delays to legal reforms in Scotland follow :

Small ClaimsSmall Claims limits were delayed for 19 years in Scotland on the orders of the Law Society. The Small Claims limit, kept artificially low in Scotland at a meagre £750 for a staggering 19 years, as a result of intense campaigns from individual legal firms and the Law Society of Scotland, itself while the rest of the UK had a small claims limit of £5000. This huge & long lived discrepancy between Scotland & England effectively forced people to employ law firms across Scotland at huge expense to recover small debts that could otherwise be handled speedily and cheaply in the English Courts.

Sections 25-29Access to justice laws were held back for 17 years on orders from the Law Society & Scotland’s legal establishment . Sections 25-29 of the Law Reform (Misc. Provisions) (Scotland) Act 1990, enabling non lawyers to work in the Scottish legal services market were not implemented by the Scottish Government’s Justice Department until 2007, a timescale of 17 years, whereas in England the equivalent 1990 Act was implemented in 1990 and worked very well.

Regulatory reform17 years delay to regulatory reform in Scotland. The first calls for reform of regulation of Scotland’s notoriously corrupt legal profession were made in 1990 and yet it took another 17 years before the Legal Profession & Legal Aid (Scotland) Act 2007 came into being, creating the half house and nowhere-near-independent Scottish Legal Complaints Commission, which is now viewed by many as little more than an expensive copy of the Law Society itself. England & Wales however, gained independent regulation of their legal services market in 2007, with the creation of the Solicitors Regulation Authority.

McKenzie Friends40 years delay of bringing McKenzie Friends to Scotland. McKenzie Friends were first used in England & Wales an incredible 40 years ago in 1970, but resistance from politicians, civil servants, and the Scottish legal establishment kept out of reach, the Scots public’s highly sought after privilege of having a McKenzie Friend assist those who could not obtain access to justice, while the rest of the UK’s population used the McKenzie Friend facility with little or no problems, and no resistance from lawyers south of the border.

Class ActionsClass Actions delayed by 27 years in Scotland after first proposals in 1982 from Scottish Consumer Council. Yet another area of Scots Law dragging its feet to the rest of the UK is that of Class Action or multi party action, which has been the subject of numerous recommendations over the past 27 years, by the Scottish Law Commission, Scottish Consumer Council, and now Petition 1234 at the Scottish Parliament, calling for their introduction to Scots Law. Earlier this year even the Dean of the Faculty of Advocates Richard Keen, supported the need for Class Actions in Scotland, although Mr Keen’s keenness to take on the Banks in multi party actions seems to have waned recently … leaving it to campaigners and members of the public to yet again pick up the trail.

While ‘delay’ has obviously been the main tool employed by Scotland’s legal profession against any changes which may encroach on its business market – that of representing individuals in Scotland’s courts & handling legal issues for clients, another important factor has been introduced into the debate on bringing McKenzie Friends to Scotland – that of the question of Human Rights.

Having a McKenzie Friend is a Human Right in England & Wales but why not in Scotland ? In England & Wales, where McKenzie Friends have been used in the courts for some forty years, it is now widely recognised that the issue of an individual being able to call a McKenzie Friend to assist the presentation of their case in the courts system comes under the Human Rights Act 1998, with suitable advice given by the Lord President of the Family Division stating : “When considering any request for the assistance of a MF, the Human Rights Act 1998 Sch 1 Part 1 Article 6 is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request.”

The only opposition so far to allowing McKenzie Friends for Scotland, comes from the Law Society of Scotland and the Faculty of Advocates, who both appear worried their members lust for ever higher profits through ripping off clients will be dented by the introduction of what may end up as a very cheap or even free service for thousands of party litigants in Scotland who either cannot afford or cannot secure the services of a Law Society controlled solicitor to pursue their case.

You can read my earlier reports on the Scottish legal profession’s opposition to the introduction of McKenzie Friends in Scotland here : ‘Control Freaks’ at Law Society say “No” to McKenzie Friends as Holyrood submission signals resistance to Lord Gill’s civil justice review & here : Legal profession ‘afraid of losing profits & control of access to justice’ as Faculty of Advocates protest against McKenzie Friends for Scotland

A Scottish Government insider today condemned many of his own colleagues for being slow to address the rights of Scots to access justice by their own choice, claiming “The general attitude in the Scottish Government is the Law Society controls anything to do with justice. Ministers and many civil servants are apathetic to calls to reform the system, preferring to simply let the legal profession steam roll along as it has always done. No wonder the public get a raw deal against lawyers in Scotland.”

A statement issued from the Scottish Human Rights Commission confirmed they would be addressing the Scottish Parliament’s Petitions Committee on the question of McKenzie Friends, however Citizens Advice Scotland bizarrely claimed they did not have the resources to make a McKenzie Friends submission to the Parliament, although a CAS spokesman confirmed they support the idea.

All eyes are now on the approaching publication of Lord Gill’s Civil Courts Review, which is rumoured to contain recommendations on the introduction of McKenzie Friends for Scotland. Whether the Justice Secretary & the Scottish Parliament will follow the public interest by acting on Petition 1247, implementing Lord Gill’s recommendations on McKenzie Friends for Scotland, or perhaps instead attempt to maintain the legal profession’s monopoly over courtroom representation is something many will await with interest and expectation.


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