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Scotland to get ‘talking’ McKenzie Friends as consumer pressure on court access & rights of audience prompts new proposals for Legal Services Bill

18 Jan

Debating chamberScottish Parliament will hear proposals to introduce ‘talking’ McKenzie Friend to Scotland. MCKENZIE FRIENDS FOR SCOTLAND will soon ‘move from silent pictures to the talkies’, and have legislative backing for their use in Scots Law, according to sources today at the Scottish Government’s Justice Department, after Communities Safety Minister Fergus Ewing gave testimony to Holyrood’s Justice Committee last Tuesday informing MSPs the issue of McKenzie Friends will be introduced to the Legal Services Bill during ‘Stage Two’ of its passage through the Scottish Parliament.

Fergus EwingCommunities Safety Minister Fergus Ewing reveals McKenzie Friend for Scotland reforms. Speaking to the Justice Committee, the Scottish Government’s Communities Safety Minister, Fergus Ewing said : “As the committee might be aware, we are considering introducing to the bill a number of areas at stage 2. In brief, those are McKenzie friends, which have been the subject of much discussion and debate in recent months; possible amendments to rights of audience in the supreme courts, subject to the recommendations of the on-going Thomson review; various technical amendments to the 1980 act; and the regulation of will writers.”

A spokeswoman for the Scottish Government’s Justice Department issued a brief confirmation of the Communities Safety Minister’s comments, saying : “We are considering an amendment to the Legal Services (Scotland) Bill regarding McKenzie friends.”

This change of heart comes as a surprise, after my coverage of the Scottish Parliament’s debate on Lord Gill’s Civil Courts Review, where Mr Ewing appeared to derail any early hopes of creating legislation to ensure that Scots could enjoy the same rights as court users in the rest of the UK to request and utilise the services of a McKenzie Friend. You can read my report on that particular debate, which features video footage of the Communities Safety Minister talking on the issue of McKenzie Friends, here : Holyrood debate reveals civil justice reforms & McKenzie Friends may be a long way off as Scottish Ministers stumble over Lord Gill review proposals

However, even better news awaits for Scots who find themselves in court but without a lawyer, as a legal insider today revealed the amendments being considered by the Scottish Government may go much further than just allowing McKenzie Friend in Scotland, as one of the options currently under discussion will actually give a McKenzie Friend the right to speak on behalf of a party litigant, which is a dramatic departure from the rules governing McKenzie Friends in England & Wales who are not allowed to address the court on behalf of the person they are assisting.

He said : “I understand one of the issues under discussion for inclusion in the Scottish Government’s McKenzie Friend proposals on the Legal Services Bill is to allow a McKenzie Friend to address the court on behalf of a party litigant in certain circumstances.”

He continued : “While I’m sure many would welcome these developments, I understand the Law Society of Scotland is firmly against such a move to grant McKenzie Friends full rights of audience so you can expect a few letters of sharp protest from the legal profession to the Parliament if this proposal reaches the Justice Committee intact.”

A spokeswoman for one of Scotland’s consumer organisations said she was delighted to hear of the idea that McKenzie Friends were to be given the right to speak on behalf of unrepresented court users.

She said : “If McKenzie Friends were to be granted full rights of audience in Scotland, it may greatly assist unrepresented court users who like many of us are easily lost in the maze of court procedures and legal technicalities. Allowing a McKenzie friend to speak on behalf of a party litigant may very well speed up cases and ensure that access to justice is delivered to many who cannot afford or cannot obtain any form of legal representation provided by solicitors.”

The change of heart by the Scottish Government on the issue of McKenzie Friends comes after considerable debate in the Scottish Parliament over Petition 1247, which has seen widespread support from all quarters and even support from other international jurisdictions, for the introduction of McKenzie Friends in Scotland, where for forty years, the legal profession, opposed to extending rights of audience and courtroom assistance to anyone outside the legal fraternity has ensured that McKenzie Friends were kept out of the reach of Scots court users for four decades.

While Scotland’s legal fraternity were generally against the implementation of McKenzie Friends in Scotland, the UK’s Ministry of Justice, several consumer organisations including Which? & Consumer Focus Scotland were very much in favour of extending McKenzie Friends, and Holyrood also received a key supporting representation from the original McKenzie Friend himself, Australian Barrister Ian Hanger QC, whose presence in McKenzie v McKenzie 1971 originated the entire concept of a McKenzie Friend, which has now reached across the globe to many international legal jurisdictions.

You can read my earlier coverage of Ian Hanger QC’s support for the introduction of McKenzie Friends in Scotland, here : McKenzie Friends for Scotland gain support from ‘original McKenzie Friend’ while Scottish Government hint at delays to civil justice reforms and reports of support from the Ministry of Justice & consumer organisations, here : McKenzie Friends for Scotland backed by Ministry of Justice & Consumer Focus as Holyrood petition moves to end 40 year Scots access to justice delay

Also, not forgetting that Lord Gill’s Civil Courts Review supported the introduction of McKenzie Friends to Scotland, which I featured in an earlier article, here : Scots Law ‘shake up’ as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

One of the strongest political supporters of McKenzie Friends in Scotland, has been independent MSP, Margo MacDonald, who attended all sessions where the Scottish Parliament’s Petitions Committee discussed the McKenzie Friends issue.

Margo MacDonald MSP – instrumental in bringing McKenzie Friends to Scotland.

Lord WoolmanLord Woolman granted first use of McKenzie Friend in Scotland’s civil courts. It is widely thought that Ms MacDonald’s support has been instrumental in ensuring the McKenzie Friends debate reached the critical stage that Scotland’s courts were eventually forced to grant the first use of a McKenzie Friend in Scotland, after a ruling in the Court of Session, issued by Lord Woolman in mid November in the long running civil court damages action of Wilson, Martin v North Lanarkshire Council & C Simpson & Marwick, finally establishing a legal basis for the use of McKenzie Friends in a Scottish court, albeit Lord Woolman’s ruling only permitted the McKenzie Friend to sit behind the party litigant … an issue which most see as continuing to obstruct court users while opposing counsel have no such impositions of difficult seating arrangements.

You can read my coverage of the first use of a McKenzie Friend in Scotland, here : First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice

Lord Woolman’s initial ruling in Wilson, Martin v North Lanarkshire Council & C Simpson & Marwick,, and a second ruling in TODS MURRAY v [Defenders] (1) ARAKIN LIMITED; and (2) Mr Andrew McNamara on 1st December 2009, came after the Lord President, Lord Hamilton and Scotland’s Justice Secretary Kenny MacAskill both claimed in letters to Holyrood’s Petitions Committee there was no need to introduce McKenzie Friends to Scotland as such assistance had already existed in Scottish Courts. However, both the Lord President & Justice Secretary’s claims were not supported by facts as an investigation revealed that all McKenzie Friends requests up to Lord Woolman’s November 2009 ruling had been refused by Scottish judges in civil action cases.

You can read my earlier report on Lord Hamilton’s ‘claims’ to the Scottish Parliament, here : Lord Hamilton accused of ‘being deluded’ over McKenzie Friends in Scotland as judge’s attack on Holyrood petition contradicts courtroom reality

You can read all my earlier reports on the battle to bring McKenzie Friends to Scotland here : McKenzie Friends for Scotland – A battle worthy of a McKenzie Friend

While we wait to see what proposals the Scottish Government have in store for a ‘talking’ McKenzie Friend for Scotland, and no doubt, what rules will govern their use and surely, what guidance the court must follow when a request is made for the use of a McKenzie Friend, you can read the full guidance from the Lord President of the Family Division on the use of McKenzie Friends in England & Wales, which can be downloaded here : President’s Guidance: McKenzie Friends.

What we need is a similar model of guidance, expanded, and importantly, ensuring that McKenzie Friends are dealt with as a Human Rights Article 6 issue, for use in Scotland’s courts as is the case in the rest of the UK.

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