A very Judicial success : McKenzie Friends to hit Scotland’s Sheriff Courts soon, Law Society agrees on ‘automatic right to use lay assistants’

Scotland’s Lord Justice Clerk, Lord Gill’s reform proposals helped bring McKenzie Friends to Scots Courts system. THE FINAL CHAPTER in the long running campaign to bring McKenzie Friends to all of Scotland’s courts, which began with the consideration of the issue in 2007 by Lord Gill’s Civil Courts Review, has now finally been written, as the Sheriff Court Rules Council announced this week it had finalised its consideration of rules on the use of McKenzie Friends across Scotland’s Sheriff Courts, with enactment allowing unrepresented party litigants to apply to use a lay assistant expected within a matter of weeks.

A spokesperson for the Sheriff Court Rules Council stated : “The Sheriff Court Rules Council further considered draft rules for the use of a McKenzie Friend at its meeting on 5 November. The Council agreed the substance of these and they will be submitted to the Court of Session for consideration later this month.”

The Scottish Parliament have also been briefed by the Sheriff Court Rules Council, who wrote to MSPs stating : “Current plans are for rule changes to be included within a miscellaneous instrument to be made later this month, but this of course depends on (a) when the Council’s proposed rules are finalised: and (b) the view taken of them by the Court of Session.”

However, further investigations & enquiries by Diary of Injustice have now established the original suggestion by the Sheriff Court Rules Council that McKenzie Friends be allowed to receive some form of payment for their services in the Sheriff Courts, has now been abandoned, and a similar set of rules forbidding the remuneration of McKenzie Friends, as was passed in the Lord Hamilton’s Act of Sederunt announced earlier in February of this year, which approved the use without remuneration of McKenzie Friends in the Court of Session in mid June 2010, will now also be used in the Sheriff Courts. I reported more on the remuneration issue during July, here : Lord President softens rules on Scottish McKenzie Friends, remuneration issue still out of step with England & Wales

A spokesperson for the Sheriff Court Rules Council answered enquiries on the remuneration point, saying : “The Council proposes that a similar provision in relation to the matter of expenses as to that which is already in place in the Court of Session Rules should be provided for in the sheriff court rules.”

A legal insider commented this was a rather unusual step, given there was already case law in England & Wales [N (A Child) [2009] EWHC 2096 (Fam)] to support the right or entitlement of a McKenzie Friend to charge or at least receive some form of remuneration for their services.

He said : “Personally I feel we could have done without this fuss over a McKenzie Friend being able to charge a fee or not. Forbidding it sounds almost anti competitive, and will at any rate, restrict the numbers of qualified individuals offering themselves up as McKenzie Friends. It is a counter productive attitude, and perhaps one which could be challenged later on under ECHR, with it possibly being open to interpretation of denying a party litigant the right to a fair hearing – if they cannot secure a qualified McKenzie Friend because of such a restriction.”

Law Society of Scotland now support a presumed right for party litigants to use a McKenzie Friend in Scotland’s courts. Meanwhile the Law Society of Scotland followed suit, its Civil Justice Committee stating “…there should be an automatic right to use a McKenzie Friend. However, it should be within the court’s discretion to insist on a withdrawal of a McKenzie Friend if it determines that the position is being abused.” which sets out an almost identical position to that of McKenzie Friends in England & Wales.

An official from one of Scotland’s consumer organisations who have consistently spoken in favour of McKenzie Friends commented on the Sheriff Court Rules Council announcement, welcoming the changes. He said : “I view this as a positive step in ensuring many consumers in Scotland who for various reasons do not have access to a solicitor can now enjoy a significant measure of assistance to help them as party litigants present their case in the Sheriff Courts.”

He continued : “The Civil Courts Review team and Lord Gill are to be commended for pursuing the question of McKenzie Friends in their two year investigation of civil justice in Scotland. I would also like to say the Scottish Parliament’s scrutiny of the issue also played a part in ensuring its speedy implementation.”

2007 Civil Courts Review consultation raised McKenzie Friends issue. The question of McKenzie Friends was first raised in the 2007 Civil Courts Review Consultation Paper (pdf) launched by Scotland’s Lord Justice Clerk, Lord Gill to being the Civil Courts Review. In the paper, Lord Gill stated : “The courts in England and Wales have for over 30 years allowed party litigants to be assisted in court by what have become to be known as “McKenzie friends”. They do not take on the role of a lawyer, but provide support in court such as making notes, prompting or giving advice on the conduct of the case. There have been occasions where the Court has gone further and, in particular circumstances, allowed the McKenzie friend to address the Court.148 In such cases the court has to exercise its statutory powers and grant a right of audience to the McKenzie friend. The desirability of permitting a party litigant to be represented in court by a person without a right of audience is a matter that the Review will consider.”

Consumer Focus Scotland have supported the idea of McKenzie Friends in Scottish courts for years. The Scottish Consumer Council (now renamed Consumer Focus Scotland) responded to the consultation paper in March 2008, over a year before a petition was filed at the Scottish Parliament on the issue, backing the call to introduce McKenzie Friends. The Scottish Consumer Council’s response stated : “We would welcome recognition by the Scottish courts of the need for discretion to allow some form of ‘McKenzie friend’ to accompany and possibly represent a party litigant in appropriate cases.”

Which? also backed McKenzie Friends. The Which? consumer organisation replied to the consultation paper in April 2008, also supported the introduction in Scotland of McKenzie Friends, stating : ”Some litigants cannot afford or cannot find a lawyer to represent them and may find it beneficial and useful to be represented by a non lawyer. We feel this should be permitted. We support the idea of Scottish courts allowing ‘McKenzie friends’ to accompany and perhaps represent a litigant where appropriate, provided appropriate safeguards are introduced.”

Lord Gill’s Civil Courts Review recommended the implementation of McKenzie Friends for Scotland. The results of Lord Gill’s Civil Courts Review were published in August 2009., his report finally recommended the implementation of McKenzie Friends in Scottish Courts, stating : “If the court considers that it would be helpful in any case, a person without a right of audience (a ‘McKenzie friend’) should be permitted to address the court on behalf of a party litigant. The court should have discretion to refuse to allow any particular person to act as a McKenzie friend on grounds relating to character or conduct and to withdraw a permission to at as such at any time. The rules of court should specify the role to be played by such persons and should provide that they are not entitled to remuneration.”

A little help from Australian Barrister, Ian Hanger QC supported McKenzie Friends for Scotland. Lord Gill’s recommendations on McKenzie Friends also had a timely note of support from the original McKenzie Friend himself, Ian Hanger QC, who wrote to the Scottish Parliament, supporting the introduction of McKenzie Friends into Scottish Courts. Ian Hanger QC wrote in his letter : “In Australia, most of our courts have the power to permit a non-qualified person to, in effect, represent a litigant. A McKenzie Friend does not have a right to address the court. That right is confined to quietly assisting the unrepresented litigant. The Australian experience has been that it has worked successfully. … I cannot see that the floodgates would be opened by permitting, in appropriate cases, the presence of the McKenzie Friend to help the unrepresented litigant. In some cases you will get a brilliant law student who will provide enormous assistance to the Court .. I would urge the Parliament to permit the appearance of the McKenzie Friend.”

Insiders at Holyrood and from the legal profession point to Ian Hanger’s invaluable and timely letter to the Scottish Parliament in support of McKenzie Friends as ‘having sealed the deal’ on McKenzie Friends coming to Scotland.

Lord Woolman granted Scotland’s first Civil Law McKenzie Friend request Two months after Lord Gill had recommended the introduction of McKenzie Friends to Scotland’s Courts, and nearly 40 years since they were introduced to England & Wales, the first ever civil law McKenzie Friend in Scotland’s Court of Session was granted by Lord Woolman in a long running civil damages action which named Motherwell College, North Lanarkshire Council & Edinburgh Law firm Simpson & Marwick as defenders. The case, a medical injury claim M.Wilson v North Lanarkshire Council & Others (A1628/01) was again recently in the headlines, here : FIFTEEN year wait for justice against Motherwell College marks poor state of Scotland’s ‘Victorian’ Justice System on European Civil Justice Day

McKenzie Friends made official in Court of Session by Lord Hamilton. In June of 2010, Scotland’s Lord President, Lord Hamilton implemented rules & guidance on the use of McKenzie Friends in Scotland’s Court of Session as of 15 June 2010. This speedier than expected implementation came about after intense media coverage online and in the national press, ensuring after Lord Hamilton’s Act of Sederunt announced earlier in February of this year finally took effect, anyone who cannot obtain legal representation for litigation which demands a place in Scotland’s highest court, now have the right to file a motion requesting the services of a McKenzie Friend to assist their case.

The final chapter is now written for McKenzie Friends in Scotland. This time, despite occasional judge bashing, Holyrood bashing, attempted & thankfully unpublished bashing of a senior Scottish Minister for not supporting a petition, media bashing, Law Society bashing, and even claims by some for credit for something which was already set in stone at least a year before (that pushing at an open door feeling), the legal system got it right … or perhaps ‘mostly right’, albeit having to be spurred on by individuals cases who have greatly been denied access to justice for so long in the Scottish Courts. We all, of course, have a great deal to thank Lord Gill for in his Civil Courts Review conclusions and his comments which have led to speedier than usual reforms in the Scottish justice system.

We should also not forget the help from our Australian cousins, Scottish politicians such as MSPs Margo MacDonald & David Whitton who both raised the political profile of the McKenzie Friends issue, the Scottish Government who have introduced a ‘talking McKenzie Friend with rights of audience’ via the Legal Services (Scotland) Act 2010 (pdf), the significant media coverage, both online and in the national press, the help of consumer organisation Which? and the dedication of those working for our Scots consumer champion in the form of Consumer Focus Scotland, which the Westminster based coalition Government plans to axe, in what must certainly be an act of cutting off one’s nose to spite one’s face, or perhaps, limit the powers of consumers to stand up to big business & vested interests.

I don’t know about you, but I’d call that team work, all the way from the benches of Scotland’s Court of Session on a bleak winter’s day, to the great cities of Australia, which are no doubt about to enjoy a long luxurious summer. As a journalist, its been fun, and hopefully informative & helpful to all, to write about it. This McKenzie Friend has now left the building.

 

McKenzie Friends from today in Court of Session, Lord Gill’s ‘super’ McKenzie Friend with rights of audience proposal joins Holyrood’s Legal Services Bill

McKenzie Friends made official in Court of Session by Lord Hamilton. McKenzie Friends are officially available to all Scots court users & party litigants in the Court of Session as of today, 15 June 2010, after Lord Hamilton’s Act of Sederunt announced earlier in February of this year finally took effect, allowing anyone who cannot obtain legal representation for litigation which demands a place in Scotland’s highest court, to file a motion requesting the services of a McKenzie Friend to assist their case.

McKenzie friends as we are all probably now well aware of, are lay individuals who assist party litigants in court, for example by providing moral support, helping with court documents, or giving discrete advice. The Lord President has now clarified the situation in the Court of Session through an Act of Sederunt which comes into force today. Lord Hamilton has also notified the Sheriff Court Rules Council which will consider the matter at its meeting tomorrow, 16 June 2010. This will include an acknowledgement that lay assistance to party litigants is possible; a description of what form this assistance can take; and a presumption in favour of allowing a party litigant to have such a lay assistant.

A McKenzie Friend’s friend – unswerving support from Margo MacDonald MSP helped bring McKenzie Friends to Scotland’s Courts. The success of the campaign to bring McKenzie Friends to Scotland, kicked off by Petition 1247 filed by Stewart MacKenzie at the Scottish Parliament’s Petitions Committee, and supported by several law reform campaigners & groups, consumer organisations such as Consumer Focus Scotland & Which?, included key support from MSPs such as Margo MacDonald & David Whitton, and even support from the original McKenzie Friend himself, Australian Barrister Ian Hanger QC, all backed up by developments during November 2009 which saw Scotland’s first civil law McKenzie Friend allowed in the Court of Session by Lord Woolman during M.Wilson v North Lanarkshire Council & others (A1628/01), was hailed today by Scottish Parliament insiders as a collective effort showing the system of public petitions had worked well, helping to bring in a reform which had also been recommended by Scotland’s Lord Justice Clerk, Lord Gill who had spent considerable time on the issue of lay representation as part of the two year Civil Courts Review.

Whilst I would characterise the year long campaign to bring McKenzie Friends to Scotland as being more of a struggle between the Lord President, the Scottish Parliament, the Scottish Government and supporters, there is no doubt a reform which featured heavily in Lord Gill’s Civil Courts Review has made it to existence much sooner than if things had been left to the courts system itself to allow. After all, Scotland has been without McKenzie Friends for forty years, an omission no one is yet willing to explain substantively, and apparently an issue the Petitions Committee feels it cannot seek answers to.

Application for a McKenzie Friend in the Court of Session will cost £45. There are also some questions remaining over access, costs & funding of McKenzie Friends in Scottish Courts after the Court of Session Rules Council minutes revealed some ‘devil in the detail’, most notably on fees(proposed by the Lord President to stand at £45 per motion for a McKenzie Friend), which have been sharply criticised by some as party litigants are often unrepresented and have been put in a position of being a party litigant more because they cannot afford the expensive legal services of Scotland’s legal profession rather than the constant argument from the Law Society of Scotland that their cases are not worthy of courtroom attention. Given the costs of travel to the Court of Session and other associated costs, it is hoped the £45 fee may be looked at in a sympathetic light as applications for McKenzie Friends being to reach the Court of Session.

While Scots will be stuck with the £45 fee for the time being, fees for applications of McKenzie Friends/lay assistance in the English family courts (pdf) apparently stand at £175, using the Application Form C2 (pdf). However, party litigants have been able to circumvent the fees by writing to the judge enclosing the CV of their intended McKenzie Friend, according to individuals well experienced in the McKenzie Friend process in the English courts.

The Scottish Government have lodged a promised amendment to the Legal Services Bill proposing McKenzie Friends with a right to address the court. While questions remaining over the use of McKenzie Friends (Lay Assistants) in Scotland’s Sheriff Courts will be answered at tomorrow’s Sheriff Court Rules Council meeting, chaired by Lord Hamilton himself, another benefit has emerged from the successful introduction of McKenzie Friends to Scotland’s Court of Session .. in the form of a recent amendment lodged by the Scottish Government to the Legal Services Bill, which proposes to allow Lord Gill’s Civil Courts Review recommendation of a ‘super’ McKenzie Friend with a right of audience, who will be able to address the court as well as assist their party litigant with all the other tasks associated with a McKenzie Friend up to now.

A Scottish Government spokeswoman said: “We have lodged amendments to the Legal Services (Scotland) Bill to allow provision for lay representatives, who do not have a right of audience, to address the court on behalf of a party litigant, in certain circumstances.”

“In the report of the Scottish Civil Courts Review (“SCCR”), it was noted that “there may be exceptional circumstances in which it would be appropriate to permit a McKenzie friend to assist a party litigant and, with the court’s permission, to address the court”. It went on to recommend that “a person without a right of audience should be entitled to address the court on behalf of a party litigant, but only in circumstances where the court considers that such representation would help it”. We intend to implement this recommendation, so this will be the first recommendation of the SCCR, requiring primary legislation, to be implemented.”

So, compliments to the Scottish Government on this one … the first recommendation of Lord Gill’s Civil Courts Review to hit the streets in a usable form for court users in Scotland’s civil justice system. Lets have more please, including the reforms suggested by Lord Gill on Class Actions and also digital recordings in court which many would welcome being implemented in the present rather than far in the future.

I reported on the issue of transcripts of proceedings in Scotland’s courts in an earlier article here : Scottish court users advised to ‘take along a note taker’ as omissions in civil court transcripts jeopardise consumers access to justice and clearly Lord Gill feels the matter of digital recording facilities in Scotland’s courts would assist the interests of justice, confirmed to me by many litigants involved in civil actions where the events which took place in court are often omitted from interlocutors and later references made by opposing legal teams.

Lord Gill recommends digital recordings of all civil court evidence. The extent of problems with court transcripts and recordings, was referred to in Chapter 6 of Lord Gill’s Civil Courts Review, where the Lord Justice Clerk stated : “Currently where evidence is recorded in civil cases this is done manually by a shorthand writer. In our view it would be more efficient to record digitally all evidence in civil cases, as happens in criminal cases. The cost of this should be borne by the SCS. The availability of digital recording facilities in all courtrooms would contribute to more flexible usage of accommodation. We understand, however, that to equip a court fully for digital recording could cost up to £15,000. That may be prohibitive in smaller courts. Mobile facilities could be made available in those courts when required. If parties required a transcript of the evidence a charge would be made for this service. In many instances a recording of the evidence would be all that would be required.”

Clearly problems do exist with transcripts of courtroom activity, which as Lord Gill concludes himself, would easily be curtailed by the digital recording of all evidence in civil cases. You can download Lord Gill’s Civil Courts Review at the following links : Civil Courts Review

Volume 1 Chapter 1 – 9 (Covers McKenzie Friends, procedures, use of information technology in courts, advice etc, 2.99Mb)

Volume 2 Chapter 10 – 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb)

Synopsis (215Kb)

How about it Mr Ewing ? It wouldn’t take much to produce an additional amendment to the Legal Services Bill putting forward Lord Gill’s recommendation on recordings of all civil court cases. Given the terms of the Civil Courts Review and Lord Gill’s proposals, I’m sure the Scottish Parliament would support such a move, which would be welcomed by many …

While there is still some work to do on McKenzie Friends in Scotland, to ensure Scots have the same entitlements as our English cousins, I would like to thank all involved who have cooperated in my series of reports on McKenzie Friends over the past year, thanks going especially to the original McKenzie Friend, QC Ian Hanger, MSPs such as Margo MaDonald and David Whitton, and the many officials from the Scottish Court Service, Scottish Government Scottish Parliament and others who have spoken out when it counted, or given statements to complete my coverage.

Also, and not least, my thanks go to all those unrepresented party litigants who have told me of their stories, all of whom have endured a considerable denial of their access to justice over the years in Scotland, simply because their cases were either too controversial or involved parts of the establishment which the legal profession were too close to. I hope through my reporting on the petition and the campaign to bring McKenzie Friends to Scotland, I have given you all a voice and a chance of access to justice denied for too long …

The Petitions Committee of the Scottish Parliament will again discuss Petition 1247 later in the summer.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

 

Scottish Legal Complaints Commission refuse to repay £1.7million public funds as board member revealed to sit on Government Accounts scrutiny quango

Scottish Legal Complaints Commission refuses to repay millions in public funds. IT HAS EMERGED through investigations that the Scottish Legal Complaints Commission, who are angrily refusing calls from consumers & politicians to repay the huge sums of public funds, over £1.7million so far put in by the Scottish Government to create the hapless complaints quango, have a currently serving board member who also holds a paid position on another Scottish Government quango, the Accounts Commission for Scotland which inspects public finances in Scotland’s local government sector, claiming to help achieve ‘best value’ in public services.

Dr Linda Pollock, paid for SLCC & Accounts Commission quango appearances. Documents now reveal that Dr Linda Pollock, a board member personally appointed to the hugely expensive, scandal clad Scottish Legal Complaints Commission by Justice Secretary Kenny MacAskill, receiving over £209 per day for putting in appearances to the limited number of SLCC board meetings currently published, also receives a staggering £6,216 a year for only 24 days work as an appointee to the Accounts Commission, whose main role is to secure the audit of local authorities in Scotland and to help those bodies to achieve Best Value in their activities. The Accounts Commission website also reveals Dr Pollock holds another quango position within the Nursing and Midwifery Council for which she receives £260 per day remuneration

From the release of the SLCC’s board members expenses claims by the Scottish Government, it can be revealed today that Dr Pollock claimed a staggering £15,635.39 in expenses during the first nine months of the Scottish Legal Complaints Commission’s work during the time it received nearly £2 million from the Scottish Government, and before the law complaints quango even did any work on consumer complaints against members of the legal profession. The figures also show that collectively, the SLCC’s board members claimed a staggering £130K in expenses for the first nine months of 2008 on everything from travel, hotel rooms, to lunches and even car parking.

Best Value ? : SLCC Board members Expenses – What the public paid for.

Interestingly, the Scottish Legal Complaints Commission fought against the release of the above information, claiming its board members would suffer ‘mental health’ problems if the public & legal profession were told just how much was being claimed in expenses. I covered this in an earlier article, here : Expenses secrecy scandal as Scottish Legal Complaints Commission seeks ban on information requests to protect lawyers ‘mental health & safety’

SLCC Chair Jane Irvine. Jane Irvine of the SLCC was asked for comment on whether the SLCC intended to repay the public purse from the vast surplus funds currently held by the Legal Complaints Commission, who insiders now confirm are studying ways of possibly using the millions held by the quango to appease calls from the Law Society of Scotland to reduce the ‘complaints levy’ which pays for the SLCC’s operational costs of considering complaints made by the public against solicitors & law firms in Scotland. However, the SLCC refused to comment, and are rumoured to be very angry the issue of repaying the near £2 million taxpayer funded start up costs has resurfaced in the public arena.

You can read my earlier coverage of the SLCC’s first annual report, announcing the gigantic surplus of £1.5 million here : Scottish Legal Complaints Commission reveals it passed most complaints about lawyers back to Law Society, has failed to act on Master Policy report and the Law Society of Scotland’s call to use the surplus to pay back solicitors, instead of many financially stricken public services in Scotland, who could do with the money more than lawyers back pockets, here : Consumer protection ‘a low priority’ as Law Society demand Legal Complaints Commission’s ‘crooked lawyer’ complaints levy be reduced

Politicians and consumer organisations have now joined the call for the Scottish Legal Complaints Commission to repay the vast amount of public funds which helped to start up the quango.

David Whitton, Labour MSP for Strathkelvin and Bearsden David Whitton, MSP for Strathkelvin & Bearsden commented on calls for the law complaints body’s 1.5million surplus to be used to reduce the levy instead of repaying public sector input of nearly 2 million said : “I most. Certainly do not believe the surplus should be used to reduce the levy. If there is a surplus of that size it could be used to greater effect elsewhere in the justice system say in funding more drug and alcohol rehab facilities or running more stringent community sentence orders.”

Mr Whitton went on to call for intervention from the Justice Secretary in the row over the huge amounts of money held by the SLCC, saying “The Justice secretary should be getting involved to ask why the money is not being put to the use it was intended for.”

A senior official with one of Scotland’s main consumer organisations said today he believed the Scottish Legal Complaints Commission should repay taxpayers the full amounts pumped in by the Scottish Government to start the hapless law complaints body.

He said : “Clearly the SLCC are being selfish in refusing to repay money which could be better spent on public services such as education, health and local government services, who are all being forced to cut back on jobs and the services they provide. It is very unfair for the SLCC to be sitting on that much money when the rest of the country is in trouble.”

When asked about the revelations that SLCC board members also sat on the Audit Commission quango, he said : “If I were in that position, I would find it very difficult to reconcile my duty to ensure best value for public services while at the same time sitting on a quango which is sitting on nearly 2 million pounds, mainly for its own benefit or that of the legal profession.”

The Accounts Commission have refused to make any detailed comment, but were visibly angry in communications over the revelations. Their spokesman would only say : “As the Accounts Commission has no statutory role in regulating or scrutinising the SLCC, this is not an issue over which it can take a position.”

No one was available at the Scottish Legal Complaints Commission to answer further questions this afternoon and the question of whether the SLCC can be made to repay the millions put in by taxpayers will now be taken up by politicians & campaigners.

Better giving the money to hospitals, education and keeping us all safe & sound, rather than simply emptying it into board members expenses claims and the back pockets of the legal profession ?

 

Holyrood debate reveals civil justice reforms & McKenzie Friends may be a long way off as Scottish Ministers stumble over Lord Gill review proposals

Scottish Parliament debated Lord Gill’s Civil Courts Review. Last Thursday’s Scottish Parliamentary debate on the Civil Courts Review recommendations made by Scotland’s Lord Justice Clerk, Lord Gill has left most onlookers and legal insiders with a worry that many of the reforms proposed in the two year review on Scotland’s Civil Justice system, including the implementation of McKenzie Friends & Class Actions, will suffer long delays and in some cases, may almost certainly never be implemented in ways which would help ordinary Scots gain significant improvements in using Scotland’s “Victorian” justice system.

Justice Secretary Kenny MacAskill spoke of Lord Gill’s criticisms of Scotland’s Civil Justice System. The tone of the debate, opened by Justice Secretary Kenny MacAskill, began on a ‘positive’ note, where high hopes for improvements to Scotland’s Civil Justice system were aired by Mr MacAskill, along with the usual compliments for the legal system as it currently stands (in failure). Mr MacAskill said : “Scots law and the Scottish courts have served us well in civil matters for many years but, last Wednesday, the Lord Justice Clerk, Lord Gill, presented me with the “Report of the Scottish Civil Courts Review”, which is a hard-hitting report and the first system-wide review in modern times.”

Mr MacAskill went on to say : “In his opening paragraphs Lord Gill pulls no punches. He says: “The basic structure of civil jurisdictions in the Scottish courts remains much as it was in the late nineteenth century”.He continues:”changes in the social and economic life of Scotland … have left us with a structure of civil justice that is seriously failing the nation. Reform is long overdue.”

“Those conclusions are unavoidable. Our civil courts now operate in a rights-based, property-owning, consumer-oriented, insurance-reliant society of a sort that would have been unrecognisable a century ago. A reliance on ad hoc reforms has delivered a system of civil justice that is unfit for today’s purposes. Lord Gill states: “The practitioners of 100 years ago would have little difficulty in picking up the threads of today’s courts. The severe summary is that the structure is “seriously failing the nation.”

Scotland’s Justice Secretary Kenny MacAskill opens Holyrood debate on Civil Courts Review :

Margo MacDonald MSP asked Kenny MacAskill when justice reforms would begin. Early intervention from independent MSP Margo MacDonald on the question of which areas had been identified by the Justice Secretary for a start, along with comments from the Liberal Democrat Justice Spokesman Robert Brown on points made by Lord Gill that his report ‘was not to be cherry picked and should be dealt with as a whole’, appeared to leave Mr MacAskill grasping for explanations as to what could and could not be done by the current Scottish Government.

Further hints at delays to Lord Gill’s proposals were compounded by questions from Scottish Labour MSP David Whitton, on the subject of McKenzie Friends, which also left Mr MacAskill struggling for an immediate solution to the forty year old McKenzie Friend ‘Scottish problem’ , the blame of which sits squarely with the Courts and Scotland’s legal establishment.

Strathkelvin and Bearsden MSP David Whitton asked for introduction of McKenzie Friends in Scotland. David Whitton intervened early on in Mr MacAskill’s opening speech, asking asked the Justice Secretary about the issue of McKenzie Friends in Scotland. Mr Whitton said : “Is one of the issues on which the cabinet secretary thinks we can all reach agreement the introduction of the McKenzie friend process?”

Justice Secretary MacAskill replied with a less than immediately hopeful statement : “I am more than happy to consider it. Lord Gill commented on that process, as did those involved in providing support through citizens advice bureaux and others. I am more than happy to meet Mr Whitton or his front-bench colleagues to discuss it because we are genuinely open to ideas. We do not insist on any formula. As I said, if we can agree on changes that are within our control, we will seek to do so. If changes are within the domain of others we will encourage them to act, if that is Parliament’s view. Other matters will require to await the outcome of an election and, presumably, the availability of legislative time. The shape of reform will require endorsement and, in some cases, enactment by this Parliament. There will be those in the chamber and beyond with particular interests in the course of reform, whether that involves McKenzie friends or other ideas. They will want to ensure that their interests are protected, be they of the cause or constituency type. That is to be expected and welcomed”

Strathkelvin and Bearsden MSP David Whitton spoke further on the issue of McKenzie Friends for Scotland :

David Whitton MSP said during his speech : “My colleague Cathie Craigie and several other members touched on the need for the introduction of McKenzie friends in Scottish courts. The cabinet secretary knows about my interest in third-party rights of representation. Indeed, only a couple of months ago, the Association of Commercial Attorneys finally earned the right for its members to appear in court, but only after a lengthy process, which at times seemed to involve an obstructive approach from the Scottish legal establishment. It is to be hoped that the recommendation on the introduction of McKenzie friends does not suffer similar delays. That is why I welcome the cabinet secretary’s earlier remarks in response to my intervention.”

He continued : “We must make expeditious progress on Lord Gill’s enlightened recommendation on McKenzie friends. The first thing that can be done is for the courts to grant McKenzie friend rights with immediate effect. There is no need for legislation from the Parliament, as it is within the powers of the courts to grant those rights. That would demonstrate the intent that things are going to change. The public want that change, Lord Gill has recommended it, the consumer associations support it, and it is an equitable and compassionate remedy for some of the access-to-justice restrictions in Scotland.

Mr Whitton’s references to the Association of Commercial Attorneys application for third party rights of representation refers to a long battle by the ACA’s Chairman, Mr Bill Alexander, seeking rights of audience under Sections 25-29 of the Law Reform (Miscellaneous Provisions) Scotland Act 1990, which I have reported on previously, here : Association of Commercial Attorneys Rights of Audience in Scotland

The outcome for the ACA was less than fair, due to the fact they were given a heavily restrictive practicing certificate for construction law only, with their application apparently being fought & lobbied against by the legal establishment at every stage. The ACA’s battle to gain rights of audience may also indicate a long struggle ahead on the issue of McKenzie Friends and other access to justice reforms proposed by Lord Gill.

Fergus Ewing caught out on McKenzie Friends issue. While the debate began on a somewhat positive note, the debate certainly ended on a significant stumble by the Communities Safety Minister Fergus Ewing over the question of McKenzie Friends, who indicated in his replies to questions from David Whitton MSP that a quick implementation of even the basic proposals in Lord Gill’s Civil Courts Review such as allowing McKenzie Friends in Scotland’s courts, was not going to be ‘all that quick’ …

Community Safety Minister Fergus Ewing stumbles over McKenzie Friends for Scotland after 40 years of existence in England & Wales.

David Whitton intervened once more on the McKenzie Friends question. During the debate’s closing speech by Community Safety Minister Fergus Ewing, Strathkelvin and Bearsden MSP David Whitton again raised the subject of McKenzie Friends and their sooner rather than later implementation in Scotland. Mr Whitton said : “I bring the minister back to my comments about McKenzie friends. He mentioned that there was wide consultation on their use and varying reports about their effectiveness, but I am sure that he acknowledges that Lord Gill recommends firmly that they should be introduced. Indeed, they already work in jurisdictions south of the border, so I do not understand why we need to delay too long before we implement that recommendation.”

Fergus Ewing replied ‘its not an easy matter to be a McKenzie Friend’. Community Safety Minister Fergus Ewing replied with a less than clear cut answer, leaving many to suspect the battle to implement McKenzie Friends in Scotland is far from over. Mr Ewing said : “David Whitton is right that the recommendation is that McKenzie friends should play a role in Court of Session actions. However, my understanding—my recollection of reading that part of the report—is that there is the caveat that it should be at the discretion of the judge who is handling the case to ensure that McKenzie friends are used appropriately for each case. It is not an easy matter to be a McKenzie friend and, particularly if the case is complex, there could be issues with the appropriateness of using one. I think that Lord Gill also states that, in family actions, it may not always be appropriate for a family member to act as a McKenzie friend because of the potential conflicts of interest.”

By clicking the following You Tube links, you can watch the reaction from Scotland’s political parties and several MSPs to Lord Gill’s recommendations, which for the main offered a broad approval of Lord Gill’s report and hopes that many of the issues raised in the two year appraisal of Scotland’s Civil Justice system can be implemented. The test of course will be whether the Civil Justice reforms proposed in the review will be implemented, and how long implementation will take …

Civil Courts Review debate : Scottish Conservative Justice spokesman Bill Aitken MSP

Civil Courts Review debate : Scottish Labour Justice spokesman Richard Baker MSP

Civil Courts Review debate : Scottish Liberal Democrats Justice spokesman Robert Brown MSP

Civil Courts Review debate : Cathy Jamieson MSP

Civil Courts Review debate : Shirley Anne Somerville MSP speaks on Class Action reforms

Civil Courts Review debate : Nigel Don MSP

On the whole I would say the debate was positive, albeit there are obvious indicators the implementation of Lord Gill’s recommendations will take time, and will be met with obvious & stiff resistance from the legal establishment. Several solicitors and legal insiders I have spoken to since the debate point to many uncertainties over Lord Gill’s proposals, resistance from the legal establishment over changes that many within its ranks do not want, and the inevitable arm twisting of politicians by the likes of the Law Society of Scotland, who although have welcomed Lord Gill’s report, are actually fuming over many of the proposals to give the public greater access to justice, and the chance to bypass Scotland’s hugely expensive solicitors to do it.

I honestly feel that as far as McKenzie Friends go, there will have to be some kind of legislation to ensure that having a McKenzie Friend is a Human Right, and not something at the whim or discretion of the court. The court has after all, kept out McKenzie Friends from Scotland for some forty years, and both the governing bodies of Scotland’s legal profession – the Law Society of Scotland and the Faculty of Advocates, do not even recognise the fact that McKenzie Friends are treated as Human Rights issue in England & Wales, and in many jurisdictions around the world.

If we are to have certainty over the McKenzie Friends question, and many other recommendations of Lord Gill, I foresee the legislative route must be used to force the courts to ensure access to justice for all, rather than access to justice only for those the court feels should have it.

The legal establishment and the courts, will again no doubt argue that we are special in Scotland, and have a peculiarly special legal services market which may be damaged by some of Lord Gill’s proposals including McKenzie Friends. However, the truth is, we are only special in Scotland because the legal establishment actively denies access to justice to those it does not want to achieve access to justice.

 

Parliament to consider competition in legal services market as Scottish Government fails on access to justice reforms

The Scottish Government’s promised access to justice reforms, long stalled by Justice Secretary Kenny MacAskill and members of the Judiciary such as the Lord President, Lord Hamilton, have been brought into question by new moves to get the Scottish Parliament to consider the issue of opening up the lawyers monopoly over the Scots legal services market.

Petition PE 1197, raised by Bill Alexander, a member of the Association of Commercial Attorneys, comes on the back of a series of gaffes, excuses, and outright prejudice by the Justice Minister against applications from individuals outside the powerful but corrupt lobby of the Law Society of Scotland to apply for rights of audience & representation which would allow the public to choose their legal representatives, bringing more badly needed competition into Scotland’s woefully poor quality legal services market.

Petition PE1197 – Allowing non-lawyers to enter the legal services market : A Petition by Bill Alexander calling on 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.

Mr Alexander, who has been campaigning since 1995 for reform of legal services in Scotland goes onto describe his efforts to open the Scottish legal services market, efforts which have been obstructed by several political administrations, and always by the legal profession.

Mr Alexander : “I have been actively involved in the application by the Association of Commercial Attorneys under Sections 25 to 29 of the Law reform (Miscellaneous Provisions) (Scotland) Act 1990 and it is now clear that in the unlikely event of the application being approved, the restrictions on the areas of practice are such that there will still be a fundamental lack of choice for parties who cannot afford a solicitor or who may not want to instruct a solicitor in matters pertaining to Contract and Delict.

The Access to Justice Department and the Lord President’s office have interpretated the Law Reform Act in such a manner that they do not consider that access to justice should be a determining factor in considering any application.”

In a recent story on this issue, I reported on the exposure of Mr MacAskill’s duplicity in stalling moves to open competition in the legal services market. You can read more about that story here :

Justice Secretary MacAskill blames Lord President for delays in ‘access to justice’ applications row

You can also watch Mr MacAskills very weak parliamentary performance on the issue, blaming everyone else including the Lord President, Lord Hamilton for the delays to legal services reform :

Justice Secretary Kenny MacAskill blames Chief Judge Lord Hamilton on delays over legal services market reform

Mr Alexander’s petition to seek the opening of the legal services market, which is supported by David Whitton MSP, has been raised because to-date, all access to justice applications made under Scotland’s existing legislation contained in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 have been refused by the Scottish Government, after taps on the shoulder from the legal establishment, who view legal services as their fiefdom, to the exclusion of all others.

Mr Alexander goes on in his parliamentary petition to explain a bit more on how unfair the Scottish closed shop lawyer monopolised legal services market is to the Scots public, obstructing access to justice at almost every level, where in effect, it is the legal profession currently, who determine the public’s access to justice, rather than a person’s own choice.

“At the moment the cost restrictions on access to justice means that there are people in Scotland who are being denied access to their Article 6 Human Right to a fair hearing in an impartial tribunal with a reasonable time. With the decision to only consider new complaints from the 1st October 2008 by the Scottish Legal Complaints Commission (SLCC) the prospects for the many people who responded to the consultation on legal services who felt that they had a complaint are also effectively being denied access to justice.”

While Scotland seems to be left out of legal services reform, which was recommended by the OFT at Westminster, Scandinavian countries enjoy a more open view of their legal services markets.

You can read more about the OFT recommendations to open the legal services market, and how the Scottish Government have stalled legal services reform for over a year since the OFT acted, here :OFT recommends lifting of lawyers monopoly on access to justice & legal services in Scotland

… and you can read more of my previous reports on access to legal services reforms, and the legal profession’s struggle to hold them back here : Access to Justice reforms in Scotland delayed by legal interests

Mr Alexander details in his petition, the more opened legal services markets in other countries, which work well, presumably because their legal profession’s don’t have such a grip on power and politics …

Mr Alexander continues : “In the Scandinavian countries they have a very liberal legal system where non-lawyers are allowed to appear in court on behalf of other parties.

It is my belief that the people of Scotland, if a system similar to Sweden and Finland was adopted, were to be given a degree of encouragement and support, that they would acquire a greater knowledge and respect for the law of Scotland which would be a benefit to society as a whole, with the potential further benefits of greater access to justice, a reduction in legal costs to individuals and the public purse, a potential reduction in violence if people are encouraged to reach for a law book as opposed to a weapon to resolve a dispute, more self confidence and self belief and an end to a monopoly which has caused actual physical harm to people over the decades.

I am confident, having been involved in this subject matter for many years, that there are, in fact, no justifiable reasons why there should be an automatic presumption that the people of Scotland would not willingly embrace and be proud of this new legal system. It would also ensure that no-one in Scotland had to face the prospect of having to appear in court without representation unless they wished to.”

Opening the legal services market up to competition is a must, but as we can see, there seems little appetite from the Scottish Government on this issue, where even the Justice Secretary himself appears unable to slip the Law Society’s puppet strings controlling policy moves to block wider public choice of legal representation and increased consumer safeguards against rogue lawyers.

Perhaps it will take more than the Scottish Government to make the moves and open up Scots lawyers private monopoly over legal services, and if the Parliament itself fails, the OFT might have to step in north of the border to protect the public’s right of access to justice where the Scottish Government itself is failing to protect.