Tag Archives: Legal Services Bill

Scottish Courts overstepped powers on requirements for ‘speaking’ lay assistants say msps, Justice Committee asked to investigate

Parliament_House,_EdinburghBlame Game : Did Scottish Government blunder over wording of ‘talking’ lay assistants laws, or did courts become too protective of lawyers vested interests? ACCUSATIONS of court interference & counter claims of blunders by the Scottish Government over the wording of legislationpassed by Holyrood in 2010 which conferred the right of lay assistants (otherwise known as McKenzie Friends) to address the court on behalf of party litigants have prompted a series of exchanges between msps, various court rule making bodies & the Lord President over claims the reforms intended to allow lay assistants to address courts are unworkable in their current state.

The widely praised ‘talking’ McKenzie Friend reform, was put forward in 2010 by the then Communities Safety Minister Fergus Ewing & reported by Diary of Injustice Scotland to get ‘talking’ McKenzie Friends as consumer pressure on court access & rights of audience prompts new proposals for Legal Services Bill, with the Legal Services (Scotland) Act 2010 as it was later passed at Holyrood, giving the Court of Session powers in Sections 126 & 127 of the Act to make rules permitting a lay person to make oral submissions to the court on behalf of a party litigant.

A short consultation was then launched for views on how lay assistants with the ability to address the court, reported by Diary of Injustice HERE and the provisions for ‘talking’ lay representatives came into force on 1 September 2011.

The actual rules giving lay representatives the right to speak in the Court of Session only came into force earlier this month, after lengthy discussions between the various court bodies over ensuring McKenzie Friends could not charge for their services, a move which seems to have more to do with blocking any competition between McKenzie Friends & lawyers for business and thus sheltering lawyer’s profits, than ‘protecting’ the rights of party litigant.

However, somewhere in the mess of discussions between the courts which focussed too heavily on protecting their colleagues in the legal profession from losing out materially & financially to McKenzie Friends,  it now transpires the courts have added some conditions of their own, over and above those contained in primary legislation.  effectively blocking the rights of lay assistants to address the court.

A meeting of the Holyrood Subordinate Legislation Committee held on 26 June has now taken issue with the courts own version of the rules,  which requires “the prospective lay representative to make five different declarations relating to financial interests, confidentiality, convictions and whether or not the prospective lay representative has been declared a vexatious litigant. It is then within the discretion of the Court to decide whether the lay representative may appear. It may permit that appearance only if it is of the opinion that it would assist the Court.”

The Committee wrote to the then Lord President, Lord Hamilton, asking for further details which generated a response that “the requirement on a prospective lay representative to declare previous convictions was intended to require the disclosure of all convictions, including those which are spent for the purposes of the Rehabilitation of Offenders Act 1974.”, a condition which appears the courts have inserted themselves far & above what was allowed or envisaged via the Legal Services Act (Scotland) 2010.

The Committee, not being satisfied with responses received from the Lord President, has remitted the matter back to the Scottish Parliament’s Justice Committee for further consideration, after it’s Convener, Nigel Don made it plain he felt the courts had overstepped the mark in enforcing stricter than necessary requirements for McKenzie Friends to address Scottish courts.

However a new problem for lay assistants being able to address the court has arisen, after a lay member of the Sheriff Court Rules Council apparently spoke out to the media, accusing the Scottish Government of making a mess of the wording of the Act, not the first time such accusations have been made about poorly thought out & weak or vague worded legislation concerning so-called ‘reforms’ in the justice system.

Asked for a comment on accusations made against the Scottish Government, a spokesperson for the Sheriff Court Rules Council declined to comment and the Scottish Government have not responded to queries over the matter.

Legal insiders have since speculated the wording of the Legal Services Act (Scotland) 2010 may have been purposely framed so vaguely as to allow members of the judiciary to refuse to allow lay representatives to be able to address the court on behalf of party litigants.

An insider said : “Given the recommendations contained in the civil courts review and the campaign at Holyrood to bring McKenzie Friends to Scotland’s courts, it is at the very least, suspicious that the Scottish Government’s legal directorate failed to get the wording right on a key reform which the legal profession did not support.”

He went onto say : “With the worries of some in the legal profession that litigants may turn to using lay assistants rather than expensive legal teams who may end up generating large legal bills with little to show for it, one could perhaps speculate the badly worded sections are no accident, and were indeed designed to impede lay assistants, or McKenzie Friends from addressing the court”

Speaking to Diary of Injustice this afternoon, a solicitor based in England said he was appalled over the wrangle in Scotland over lay assistants. He said : “Only Scotland could manage to screw up McKenzie Friends with rights of audience features no one really wants. Was it done on purpose to discredit their use as time went on ? I think this could be a possibility.”

Diary of Injustice was involved in the campaign to bring McKenzie Friends to Scotland, more of which can be read here :Bringing McKenzie Friends to Scotland’s Courts

The discussion of the Holyrood Subordinate Legislation Committee follows :Holyrood Subordinate Legislation Committee 26 June meeting

Act of Sederunt (Rules of the Court of Session Amendment No. 3) (Miscellaneous) 2012 (SSI 2012/189) (Justice Committee)

45. This instrument amends the Rules of the Court of Session by inserting a new Chapter 12B which makes provision for lay representation before the court. It also revokes the Parts of Chapter 41 which relate to applications for permission to appeal against decisions of the Upper Tribunal.

46. The instrument is not subject to any parliamentary procedure and comes into force on 9 July 2012.

47. As part of its scrutiny of the instrument the Committee asked for clarification of various points from the Lord President’s Private Office (“the LPPO”). The correspondence is reproduced in Appendix 5.

48. The Court of Session (“the Court”) has power to make rules regulating the procedure and practice to be followed in that Court, in terms of section 5 of the Court of Session Act 1988 (“the 1988 Act”). These Rules are made under that power and they modify the Act of Sederunt (Rules of the Court of Session 1994) 1994 (“the Rules of the Court of Session”).

49. This instrument makes two separate amendments to the Rules of the Court of Session: paragraph 2 inserts the new Chapter 12B on lay representation, and paragraph 3 revokes certain of the Parts of Chapter 41 which the Court declared to be ultra vires in the case of KP and MRK v Secretary of State for the Home Department. This report is concerned with new Chapter 12B only.

50. Section 126 of the Legal Services (Scotland) Act 2010 amended section 5 of the 1988 Act to insert section 5(ef) which confers power on the Court to make rules “to permit a lay representative, when appearing at a hearing in any category of cause along with a party to the cause, to make oral submissions to the Court on the party’s behalf”.

51. Chapter 12B prescribes that the party who wishes to have a lay representative make oral submissions must enrol a motion accompanied by Form 12B.2. This form must be completed by the party and by the prospective lay representative. It requires the prospective lay representative to make five different declarations relating to financial interests, confidentiality, convictions and whether or not the prospective lay representative has been declared a vexatious litigant. It is then within the discretion of the Court to decide whether the lay representative may appear. It may permit that appearance only if it is of the opinion that it would assist the Court. It appears that the Court, in exercising that discretion, will take into account the declarations made on Form 12B.2.

52. In its response of 21 June 2012, the LPPO confirmed that the requirement on a prospective lay representative to declare previous convictions on Form 12B.2 was intended to require the disclosure of all convictions, including those which are spent for the purposes of the Rehabilitation of Offenders Act 1974 (“the 1974 Act”).

53. The Committee observes that section 4 of the 1974 Act relieves persons whose convictions are spent from the ongoing consequences of having to declare a conviction. It notes in particular that section 4(1)(b) of the 1974 Act provides that such a person must not, in any proceedings before a judicial authority, be asked or required to answer any question relating to his or her past “which cannot be answered without acknowledging or referring to a spent conviction or spent convictions”. It further notes that section 4 of the 1974 Act is subject to the limitations on rehabilitation set out in section 7 of that Act, and to the exclusions set out in the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003, which is made by the Scottish Ministers in exercise of the powers conferred by section 7(4) of the 1974 Act.

54. It accordingly appears to the Committee that Form 12B.2, in so far as it requires persons to declare convictions which are otherwise spent, purports to disapply section 4(1) of the 1974 Act. The LPPO was asked to explain the basis on which such provision might lawfully be made. The LPPO takes the view that the rule-making powers of the Court in section 5(a), (b) and (ef) of the 1988 Act, when read in conjunction with section 7(3) of the 1974 Act, confer power upon the Court to make provision of this nature.

55. The Committee observes that the Parliament expressly conferred the power to make rules permitting lay representation before the Court when it enacted section 126 of the Legal Services (Scotland) Act 2010, inserting section 5(ef) of the 1988 Act. The Court, in its judicial capacity, has held that section 5(a) of the 1988 Act cannot be relied on to supplement any of the specific powers otherwise conferred in that section. As the Lord President (Hope) commented in Taylor v Marshalls Food Group, “[h]ad Parliament taken the view that para. (a) was as general as counsel suggested, then it would not have found it necessary to insert the new paragraph […] to allow the court to make acts of sederunt in relation to expenses.” In light of this judgment of the Court the Committee takes the view that neither paragraph (a) nor (b) of section 5 enables the Court to make provision which, properly construed, is ancillary to the power to make rules permitting lay representation conferred by paragraph (ef).

56. Furthermore, in the Committee’s view there is nothing in paragraph (ef) which permits the Court to make rules which override primary legislation, in particular the prohibition on requirements to disclose spent convictions established by section 4(1) of the 1974 Act. It appears to the Committee that the Court is seeking, in its legislative capacity, to specifically override provision enacted by the UK Parliament in a manner which is not subject to the Parliament’s supervision. It observes that such a power exists but that it is a power exercisable, post-devolution, by the Scottish Ministers and only with the express approval of the Parliament.

57. So far as the LPPO seeks to rely on section 7(3) of the 1974 Act, the Committee accepts that this is a power exercisable by a “judicial authority” (a term which includes the Court) to require the disclosure of spent convictions. However, it notes that this power is subject to significant restrictions. First, and fundamentally, there is nothing in section 7(3) to suggest that it may be exercised by the Court in its legislative capacity. In the Committee’s view, it is quite clear from the reference to that power being exercisable “at any stage in any proceedings” that it is exercisable by the Court in its judicial capacity when dealing with individual cases. It is unpersuaded by the suggestion that the exercise of the Court’s legislative functions could be taken to constitute a stage in proceedings: the very nature of the rule-making function is that the resulting rules apply in all cases, and there would be no exercise of the section 7(3) power in each individual case. The Committee also notes that this power is exercisable only where the authority, in relation to the proceedings, considers that justice cannot be done without admitting evidence of spent convictions. The LPPO has not identified why it would invariably be the case that justice could not be done, where a lay representative is involved, unless that lay representative discloses spent convictions.

58. The Committee accordingly considers that the LPPO has not been able satisfactorily to explain how the Court may, by Act of Sederunt, disapply the provisions of section 4 of the 1974 Act. It does not consider that section 5 of the 1988 Act confers any such power. Furthermore, it is unpersuaded that section 7(3) of the 1974 Act is capable of being exercised in a blanket fashion by the Court in its legislative capacity. It appears to the Committee that section 7(3) is intended for use by any court when exercising its judicial functions on a case-by-case basis in individual court proceedings.

59. For these reasons, the Committee considers that it is doubtful whether this instrument is intra vires in so far as it inserts Form 12B.2 into the Rules of the Court of Session when that form is intended to require prospective lay representatives to disclose spent convictions. That provision appears to be of doubtful vires because it purports to disapply the effect of section 4(1) of the 1974 Act in the absence of any power enabling the Court of Session to make rules to that effect.

60. The Committee therefore draws the instrument to the attention of the Parliament on reporting ground (e) as there appears to be a doubt about the vires. There appears to be a doubt whether the instrument is intra vires in so far as it inserts Form 12B.2 into the Rules of the Court of Session, when the purported effect of that form is to require a prospective lay representative to make a declaration disclosing spent convictions. That provision appears to be of doubtful vires because it purports to disapply the effect of section 4(1) of the Rehabilitation of Offenders Act 1974 in the absence of any identifiable power enabling the Court of Session to make provision to that effect.

61. Furthermore, the Committee draws this matter to the attention of the Justice Committee as lead committee on the instrument. This instrument is not subject to any further parliamentary procedure but purports to make substantive provision which modifies the rights and protections of individuals and disapplies primary legislation. The Committee accordingly considers that this raises an important constitutional point about the respective functions of the Parliament and the rule-making authority, and recommends that the Justice Committee consider the matter further.


Act of Sederunt (Rules of the Court of Session Amendment No. 3) (Miscellaneous) 2012 (SSI 2012/189)

On 19 June 2012, the Lord President’s Private Office was asked:

Form 12B.2, as inserted by the Schedule to this instrument, requires the prospective lay representative to make certain declarations. In particular, paragraph (d) requires that person to declare that he or she has no previous convictions, or alternatively to list those previous convictions. However, section 4 of the Rehabilitation of Offenders Act 1974 provides, inter alia, that a person who has become a rehabilitated person “…shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction…” and in particular that such a person shall not, in any proceedings before a judicial authority, be asked or required to answer any question relating to his or her past “…which cannot be answered without acknowledging or referring to a spent conviction or spent convictions…”. The Lord President’s Private Office is asked:

(a) Is it intended that a person who has become a rehabilitated person (and whose convictions are spent) should be required to disclose those convictions notwithstanding section 4 of the Rehabilitation of Offenders Act 1974?

(b) If that is the case, to identify the power which is relied upon to make such provision; or

(c) If that is not the case, to explain why it is considered that Form 12B.2 makes it sufficiently clear (in particular having regard to the likelihood that the form will be completed by those who are not legally qualified) that the prospective lay representative need not declare spent convictions.

The Lord President’s Private Office responded as follows: (a) Yes.

(b) The powers to make the court rules are contained in sections 5 and 5A of the Court of Session Act 1988. In particular, paragraphs (a), (b) and (ef) of section 5 are relevant for these purposes. The Lord President’s Private Office takes the view that the court’s rule-making powers also require to be read against the background of section 7(3) of the Rehabilitation of Offenders Act 1974, which enables the court, at any stage in any proceedings, to require evidence relating to a person’s spent convictions, notwithstanding the terms of section 4(1) of the 1974 Act, where the court is satisfied in the light of any considerations which appear to it to be relevant that justice cannot be done except by admitting or requiring the evidence relating to those spent convictions. Other exclusions of section 4(1) of the 1974 Act (including exclusions relating to certain types of proceedings in the Court of Session) are set out in the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003.

(c) In light of the answer to question (a), question (c) does not require to be answered.


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The Law Society from Hell : Scots face decade of closed shop, low quality & high cost crooked lawyers as solicitors demand access to justice monopoly goes on

law-in-scotlandAs predicted, Law Society of Scotland’s ‘one profession’ conference result : More client rip-offs on the way. ANOTHER DECADE OF LEGAL RIP-OFFS via poor regulation, consistently poor quality legal services, the worst levels of access to justice in the entire UK & the lowest possible form of consumer protection when things go wrong between clients & solicitors, is on the way for unsuspecting & unwary consumers of legal services in Scotland, according to the Law Society of Scotland ‘new strategy’ for the next decade up to 2020, published earlier this week as a result of the society’s annual conference : “Law in Scotland- One Profession”.

According to the Law Society’s Press Release following its annual conference, the society stated its new strategic aim as ‘to lead and support a successful and respected Scottish legal profession’ in its ‘Towards 2020’ strategy document and has set out five principal objectives against which it will assess and measure its performance over the coming years.

The latest ‘key objectives’ announced, which remain unachievable even after SIXTY YEARS of the Law Society of Scotland’s existence, are :

Excellent solicitor professionalism and reputation (Ignoring huge levels of fraud & theft involving clients funds, legal aid fraud, involvement in organised crime, tax fraud, criminality, etc is on the rise within the profession)

Law Society of Scotland members are trusted advisers of choice (Trust a member of the Law Society of Scotland, kiss goodbye to your life as you knew it before legal difficulties, home repossession, faltering finances, personal bankruptcy & family break up all set in as a result of clients misplaced trust)

Law Society of Scotland members are economically active and sustainable (Economically active enough to inflate fee notes & play clients along for years, charging for work which in most cases never leads to a solution to the client’s legal problems)

The Law Society of Scotland is the professional body and regulator of choice (Another decade of corrupt regulation of complaints against crooked lawyers where solicitors cover up for their colleagues)

The Law Society of Scotland is a high performing organisation (High performing for solicitors, non performing for clients)

The 4m Crooked Lawyer - Daily Record 1991The Law Society of Scotland’s vision for next 10 years – we should expect more multi-million pound crooked lawyers. The now familiar annual claims from the Law Society of Scotland cut little truth in terms of reality, as the levels of frauds committed by crooked lawyers against their clients are significantly on the rise in Scotland, doubtless due to the recession & general downturn in business which has brought about many new creative ways by law firms to rip off clients, including use of Scotland’s Sheriff Courts to pursue clients for alleged fees due for non existent work on court cases which commonly never see a court room or a legal remedy.

Cameron RitchieLaw Society President Cameron Ritchie. Commenting on the Law Society’s desire to remain in charge of exactly who in Scotland it decides should have access to justice, the Society’s current president, Cameron Ritchie, said: “The pace of change for the legal profession, like others, has been tremendous in recent years and of course there has been the additional challenge of the economic downturn. It’s vital for any successful organisation to take time to step back from the day to day operations and look at where we are headed. We must plan what our key priorities should be and how we can best anticipate future opportunities and challenges in order to properly support the profession, which in turn helps our members better serve their own clients, now and into the future.”

The Law Society further stated that a review of its work was initiated by its Council and the final strategy, approved by Council members last month, has had input from groups of members, faculties and firms, as well as senior management and staff at the Society. The Council has considered economic, social and political change which is likely to impact the legal sector and the opportunities these change could bring in addition to any challenges for members.

The statement did not make any mention the Council of the Law Society of Scotland was branded “fundamentally dishonest at its core” by a now former Council Member, John McGovern who, it is claimed “has been critical of the Society’s policy on ABS, and has campaigned against the dual functions of representation and regulation being vested in the Society, amongst other issues.”.

Law Society President Cameron Ritchie again : “The outlook for the next few years remains challenging and we know that solicitors will continue to feel the effects of a tough economic climate. Social change will also impact on our members as consumers of legal services become increasingly well informed and will seek the best and most cost effective services available to them. This makes reputation and quality assurance for solicitors and their firms even more important. As a professional body, it will be our role to promote a deeper understanding of the solicitor brand to the public.

Mr Ritchie said the Law Society was now looking to bring in more female solicitors into the profession. he continued : “The legal sector itself is changing and we are seeing a younger profession with the gender balance swinging towards females. There are also pressures on some specific areas of legal practice, such as the criminal bar, and a growing number of ’employed status’ solicitors.”

Fergus Ewing Scottish ParliamentFergus Ewing, Communities Minister in 2010 was made a laughing stock after Law Society forced him to announce major pro-lawyer changes to a wider-consumer-choice-in-legal-services law. The Law Society also praised the Legal Services (Scotland) Act 2010, (a much watered down out version of the UK Legal Services Act 2007) which took the SNP Scottish Government three years longer than Westminster MPs to consider, and was only passed after the Law Society heavily amended its intentions, at one point turning Community Safety Minister Fergus Ewing into a shrivelled-up laughing stock after Mr Ewing was forced by the Law Society to withdraw major parts of the reforming legislation which had intended to put consumers in charge of their own access to justice although not to the same degree as consumers in England & Wales enjoy. Such were the amendments ordered by the Law Society to the Scottish Government’s legal services bill, the latest timetable from the Scottish Government has indicated that alternative business structures are unlikely to become a reality until at least summer 2012.

An earlier article reporting on how the Legal Services (Scotland) Act was passed, is here : ‘Choice’ but not as we know it : Legal Services Bill passed, Scots access to justice remains mostly under Law Society’s control and the chequered history of the Legal Services Bill at the Scottish Parliament can be read here : Legal Services Bill for Scotland, giving consumers no access to justice.

More examples of how the then Community Safety Minister Fergus Ewing danced to the tune of the Law Society of Scotland & its members, can be found HERE, HERE, & HERE.

Law Society President Cameron Ritchie added: “In addition to this we also have to be aware of the political context in which we work and the changes coming down the track which will affect the profession. Given the cross party support for the Scotland bill we can predict further devolution of powers to the Scottish Parliament and we know there is strong political will to see reforms proposed by Lord Gill introduced. We await the outcomes of the ongoing reviews by Lord Carloway and Lord McCluskey. Within such a period of change, we want everyone, whether they are a solicitor or member of the public, to be able to understand our organisation’s purpose and vision for the next five to 10 years.”

The Scots public do not need to wait to understand the Law Society of Scotland’s purpose & vision for the next ten years, as the last two decades of record levels of client fraud & corruption within the Scottish legal profession, held together by the Law Society and its persistent crop of leaders who ensure the legal profession’s vested interests come before consumers, serve as warning from the past the same will continue until fully independent regulation of legal services is a reality, and anti-consumer closed shop institutions such as the Law Society of Scotland are consigned to the dustbin if history.


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The Crooked & The Crooked : Scottish solicitors claim banks & financial services ‘are historically too crooked’ to own Scots law firms

slasBanks are too crooked to own law firms, FSA is rubbish at regulation, say Scottish Law Agents Society. BIZARRE CLAIMS that High Street Banks and other ‘Financial Service Providers’ are TOO CROOKED to hold majority ownership in equally crooked Scottish law firms have emerged today in a response from the Scottish Law Agents Society to a Scottish Government consultation on proposed changes to the ownership of law firms as laid down in the Legal Services (Scotland) Act 2010, passed last year by the Scottish Parliament only after a raft of changes & amendments had been ordered by the Law Society to water down the Scottish Government’s initial proposals to expand Scotland’s closed shop legal industry.

The Scottish Government consultation on which categories of regulated professionals other than solicitors should qualify to meet the 51% ownership requirement in the Legal Services (Scotland) Act 2010 has caused fierce bickering within the Scottish legal profession over their decades old control of Scotland notorious closed shop solicitor dominated legal profession where members of the public who require access to justice or the courts are forced to go solicitors who are members of the Law Society of Scotland.

Today, amid the fears of lawyers the financial industry will come into Scotland’s legal profession and scoop up law firms, or even open their own and bring much needed competition into the legal services marketplace where solicitors have got used to charging sky high fees for doing very little work on behalf of their clients, the Scottish Law Agents Society issued a series of damning accusations against the financial services sector, essentially claiming financial services providers are historically too corrupt to own a majority stake in a Scottish law firm.

In a response to the Scottish Government consultation, the Scottish Law Agents Society claimed : “The financial services industry over the last 30 years does not inspire confidence in the professional standards in the industry. There have been widespread scandals with the mis-selling of endowment policies, personal pension plans, home income plans, precipice bonds and other structured investment products. Currently there is a further scandal with the mis-selling of payment protection insurance.”

The same is true of the legal profession in Scotland. Solicitors have spent decades mis-selling legal services to clients who end up paying extortionate fees for useless and often unsuccessful litigation.

The response from SLAS continued : “The key to each of these scandals is the selling of the products. Notwithstanding the veneer of professionalism the old adage that financial products are sold and not bought remains true. The whole culture of financial services remains one of sales rather than the provision of professional services where the professional puts the interests of the client ahead of his own interests. The regulatory scheme which has applied since the Financial Services Act 1986 has done little to curb this culture.”

While it is true regulation may well have done little to curb bad practice in the financial services sector, it is equally true regulation in the legal services sector, provided in Scotland by the Law Society of Scotland, Scottish Legal Complaints Commission, Scottish Solicitors Discipline Tribunal & last but not least, the Faculty of Advocates, has collectively done little or nothing to curb the incessant corruption, client rip offs, negligence, dishonesty and bad service which continues to plague Scotland’s legal services sector today.

The statement from SLAS also attacked the Financial Services Authority, claiming : “The present regulator of financial services is the FSA and, despite its wide ranging powers, the provisions of the Legal Services (S) Act 2010 with tests of fit to own and fit to manage are not sufficiently robust to allow us to have confidence that the public would be protected from a sales culture approach which could lead to the mis-selling of legal services.”

It should be noted the response from the Scottish Law Agents Society fail to contain any references to many Scots law firms who are themselves caught up in similar scandals of mis-selling of mortgages & financial products and even legal services to clients who are then forced to lodge complaints with the Law Society of Scotland and Scottish Legal Complaints Commission. Unsurprisingly the Law Society & SLCC are reported to be ignoring such complaints.

While SLAS went onto cover themselves by stating : “It would degrade significantly the intended benefits of the Act and indeed the rationale for liberalising the provision of legal services if regulated professions were restricted only to those of Solicitor and Accountant”. Although it would require approved regulators to evolve and enforce robust “fitness for involvement” tests, it would be inconsistent with the purpose of the Act to deny the opportunity to participate in the provision of legal services to other regulated professionals.” the response indicated they would be happy to form “associations between solicitors and surveyors or indeed any regulated profession as defined in Article 3 of European Directive 2005/36 with one exception“, that exception being the Financial Services Industry.

I am not surprised solicitors are happy to form associations with the likes of surveyors.

Law firms forming associations with surveyors is something I’ve seen first hand in Edinburgh and particularly in the Scottish Borders, usually ending up in a very corrupt arrangement where surveyors dish out fraudulent valuations to house buyers or sellers or solicitors on behalf of executry estates of deceased clients, resulting in one particular case I remember where a single solicitor ended up owning twelve properties, some purchased through middle men after it took years to sell particular properties of deceased clients which ended up being sold in some cases for a quarter of their value during the property value boom between 2000 – 2008.

The response from the Scottish Law Agents Society also came down hard on will writers & confirmation agents, stating : “Will Writers and Confirmation Agents are not professionals. At present they require no proper education and training. The qualifications needed to do that work properly requires the same training that solicitors receive. A full training in and understanding of the law on all aspects of property law, succession, taxation etc, are required to offer proper advice. It is obvious that no one should offer services in Will writing and Confirmation without current practising solicitors trained in that area.”

SLAS continued : “Furthermore we note that there are no adequate mechanisms for consumer complaints to be made and investigated free of cost to the consumer and no evidence of adequate professional standards or disciplinary procedures. There is evidence of widespread consumer detriment in the quality of services provided and in the marketing practices of will writers.”

Clearly standards must be kept, but with the ever increasing amount of fraud by solicitors against executries & wills in Scotland, reaching into the tens of millions of pounds each year or by some estimates much more, I hardly think trusting regulation of the legal services market to the likes of the Law Society of Scotland and the remains of the current self-regulation of solicitors gang, including the SLCC, will do anything to improve regulation, increase public confidence or increase consumer protection in Scotland’s best-to-be-avoided legal services marketplace, even after terms of the much-watered-down Legal Services (Scotland) Act 2010 takes hold.

The Scottish Government were asked to comment on the SLAS response and their accusations against the Financial sector. A spokesman for the Scottish Government said: “The Legal Services (Scotland) Act 2010 will modernise the Scottish legal profession, and will offer firms of every size the flexibility to adopt a business model that works for them and their clients. It will give Scottish firms greater opportunities, within a robust regulatory system, to expand and compete effectively, both within and outwith Scotland.”

“The consultation in question sought views on those who should be permitted to own a majority or controlling share in the new licensed legal services providers. All responses will be analysed and considered along with other evidence before a decision is taken. A report on the consultation will be prepared in due course, and will be available on the Scottish Government website.”

We are therefore left to ask ourselves as consumers of legal services, are banks & financial services providers too crooked to own outright a law firm, or is it just these law firms are themselves too crooked to want anyone else to own them or compete in their markets ?

Judge for yourselves on the evidence aplenty already reported on Diary of Injustice, although you may be forgiven for coming to the conclusion neither of the professions can really be trusted with our financial or our legal & justice needs.


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Review of 2010 : Scots legal system ‘remains Victorian’, party litigants, court users & consumers face a continued battle for access to justice

Court of Session EdinburghScotland’s Court of Session still rules over ‘Victorian’ justice system. WHILE 2010 has brought a few, welcome, if ever-so-slightly-forced-by-media-attention reforms & changes in Scotland’s creaking ‘Victorian’ civil justice system, there is still, undeniably a long way to go for the Scottish Government, Scottish Parliament & Scottish Courts in ensuring access to justice, legal services & access to the courts for all Scots, especially those who cannot obtain or afford the services & typically outlandish fees of law firms who offer little in the way of speedy dispute resolution or even a modicum of success in many common types of legal disputes.

Over a year and a half on since the high profile announcement & publishing of the Civil Courts Review, the two year plus investigation of Scotland’s civil justice system undertaken by the Lord Justice Clerk, Lord Gill, and the high hopes many pinned on a speedy implementation of the hundreds of recommendations made by the Lord Gill, many consumer organisations, court users, and even solicitors themselves see the past sixteen months as providing Scots with little more than a talking shop for justice reforms. I reported on the lack of developments on the Civil Courts Review back in August 2010, here : Civil Courts Review one year on : Scotland’s out-of-reach justice system remains Victorian, untrustworthy and still controlled by vested interests

Lord HamiltonLord Hamilton enacted McKenzie Friends in Scotland 40 years after the rest of the UK had the facility. For instance, one of the few tangible-to-court-users reforms enacted to-date has been that of allowing McKenzie Friends to operate in the Court of Session, a right hard won after a campaign mounted by consumer organisations, campaigners, continued reporting by the media, an original recommendation by Lord Gill himself to allow McKenzie Friends, and all spurred on by a ruling in the Court of Session last November which eventually led to the Lord President, Lord Hamilton enacting an Act of Sederunt in June 2010, allowing Scots (who, in April 2010 he branded too ignorant to know what a McKenzie Friend is), a facility the English & Welsh courts & public had enjoyed for a full forty years before and it should be noted that Scottish Sheriff Courts are still to enact McKenzie Friends, expected eventually in February 2011.

Judiciary of Scotland website coverScots Judiciary’s new website – a welcome move in bringing transparency to the judiciary, but like scenery, you cant eat it. Some may say, oh but what about the new Judiciary of Scotland website, the new GUIDE FOR PARTY LITIGANTS ; “Raising & Defending ordinary actions in the Court of Session(pdf), increased competition by way of the Legal Services (Scotland) Act 2010 (pdf) etc etc .. but after forty, fifty, sixty plus years, its just not enough to tinker with the curtains and hope everyone falls into line, proclaiming a new era in Scots justice, especially when the UK’s Supreme Court based in London, can, in a few hours, change Scots criminal law in an instant, as I reported in late October, here : Access to justice ? Scots criminal law changed by UK Supreme Court in a day, ‘Victorian’ civil justice reform proposals ‘growing older by the year’

There are, of course, some little gems from the new Judiciary of Scotland website, such as Scots now being able to see for ourselves how much the justice system costs us, despite most of us apparently not having access to it : Part-time Sheriffs beat full-time colleagues & senior judges in expenses claims as Scots judiciary finally publish judicial expenses online although again, these little gems appear to have been reared for publication after a dose of media attention and with the helpful assistance of Freedom of Information legislation.

The Scots judiciary’s shiny new website, as welcome as it is, has existed in an equivalent, perhaps better organised format in England & Wales for years, as well as the guide for party litigants, and the Scottish version Legal Services (Scotland) Act 2010 asp 16 (pdf) of the Legal Services Act (2007) for England & Wales has been so brutalised, butchered, twisted, tortured & re-written by the Scottish legal profession itself, eventually being passed by msps who were more concerned with doffing their caps to the Law Society’s influence in politics than the public’s right to justice, it has given Scots little more rights or choice against the legal services monopoly controlled by the legal profession after its near two year talking-shop passage in the Scottish Parliament.

Indeed, comparing the Legal Services (Scotland) Act 2010 asp 16 (pdf) and the Legal Services Act (2007) for England & Wales is like comparing a horse & cart to an Aston Martin DBS … with the Scottish Government & Parliament version giving the appearance of trying to fit the Aston’s Bridgestone tyres onto a wooden cart pulled by a donkey, such is the value they place on the Scots public’s access to justice and meanwhile the Law Society of Scotland was busy worming its way onto the Calman Implementation Group to ensure it had a say in giving the Scottish Parliament some tax raising (and doubtless expenses claims raising) powers, while also lobbying for the Society to be made an ‘approved regulator’, giving crooked lawyers an eternal Christmas.

In truth therefore, at the end of 2010, Scots access to justice, access to legal services or even access to the courts itself has changed little at the end of this year, with solicitors, advocates and law firms still effectively the gate keepers of the doors of justice, which remain so obviously closed in the face of anyone the legal profession doesn’t care for, or takes a slight to.

Richard Keen QCCurrent Dean of the Faculty of Advocates Richard Keen called for Class Actions two years ago, little happened since. Whatever happened to multi-party actions (Class Actions) being speedily introduced to the Scots justice system so the legal profession could, under the clarion call (made two years ago in January 2009) of the Dean of Faculty of Advocates, Richard Keen QC, take on the might of the banks and allegedly represent & protect the interests of consumers so robbed by many of Scotland’s financial instructions who themselves coincidentally sponsor many events within the legal profession itself ? Nothing, that’s what happened, nothing. Class Actions are still being talked about, talked about, talked about … with little movement made on the issue in the past sixteen months Lord Gill originally said Class Actions should become a reality and two years since the dean himself started shouting about it in the newspapers.

Of course, Mr Keen has been busy with other things since January 2009, such as representing the insurance industry against paying out damages in asbestos claims cases & challenging the new legislation (the Damages (Asbestos-related Conditions) (Scotland) Act 2009) which brought pleural plaques into the scope of asbestos claims. Mr Keen and the insurance industry, many of whom also coincidentally fund or have financial interests in the Law Society of Scotland’s Professional Indemnity Insurance scheme, the Master Policy, went onto lose their court challenge against the new asbestos compensation laws, as I reported at the beginning of the year, here : Lord Emslie defeats legal challenge over pleural plaques as Insurers ‘big name’ legal team fail to overturn Holyrood’s Asbestos compensation law

Just think if Scots could enter into Class Actions in such cases as asbestos claims, instead of victims having to approach only a few select law firms which end up dealing with the claims on a case by case basis while piling on the fees & time-to-claim-resolution to the point their clients end up dying before receiving any compensation. Of course, we are told it may come in 2011, or 2012 or 2013 … so as the clock ticks on and the years fly by, the next hope for developments in the long running saga of bringing Class Actions to Scotland, apparently lies with the considerations of the Civil Justice Advisory Group, under the chairmanship of the Right Honourable Lord Coulsfield. The CJAG is due to publish a report with recommendations for the way forward in early 2011.

Scottish GovernmentScottish Government eventually agreed to introduce Class Actions & other reforms to civil justice system ‘over years’. The Scottish Government, ‘ever swift’ to claim the high ground in all things Scottish, announced its intentions in late November to implement ‘some’ of Lord Gill’s Civil Courts review recommendations to reform the Scots ‘Victorian’ civil justice system, bringing Class Actions, a new tier of judge & ‘more effective’ case management to Scotland’s courts system, which I reported on here : Scottish Government’s response to Civil Courts Review : Class Actions, more cases to Sheriff Courts, & faster, easier access to justice ‘over years’.

Lord gillThe Lord Justice Clerk, Lord Gill, author of the Civil Courts Review. The Lord Justice Clerk, Lord Gill, in his speech to the Law Society of Scotland’s 60 year anniversary conference last year, reproduced in full here said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society. It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice.”

Lord Gill continued : “Unless there is major reform and soon, individual litigants will be prevented from securing their rights, commercial litigants will continue to look elsewhere for a forum for their claims, public confidence in the judicial system will be further eroded, Scotland’s economic development will be hindered, and Scots law will atrophy as an independent legal system.”

This is the 30th of December, 2010 and sadly little has changed, making 2010 another year that access to justice for all Scots was again, denied. Personally, I wouldn’t recommend anyone expect too much in the way of speedy reforms, unless campaigning is stepped up, along with perhaps a few public petitions, court rulings & media attention in 2011 to prompt changes & reforms which should have been introduced in Scotland decades ago, since everyone else had those same ‘reforms’ decades ago …

Readers are as ever, encouraged to download the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links :

My coverage of the Civil Courts Review from its publication to the present, and the pace of reforms to civil justice in Scotland can be found here : Civil Courts Review – The story so far.

Whatever 2011 will bring for access to justice in Scotland, I will continue to report …


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Unfit for Consumer Consumption : How the Law Society views itself illustrates why consumers will never be protected by Scots lawyers regulator

Law Society of ScotlandThe Law Society of Scotland’s latest foray into the world of video gives a rose-tinted view of regulation. THE LAW SOCIETY OF SCOTLAND have, in a rare foray into the world of published video footage, given notice they intend to apply to the Scottish Government as an “approved regulator” of legal services in the ‘new’, ever-so-slightly expanded Scottish legal services market which will begin to take shape next year, 2011, after the passage of the Legal Services (Scotland) Act 2010 which came into being as a result of a less than successful consumer campaign to open up Scotland’s justice sector to allow wider access to justice for Scots who have until now, been forced to use the services of a solicitor (member of the Law Society of Scotland) or advocate (member of the Faculty of Advocates) to obtain legal services or access to justice.

The 4m Crooked Lawyer - Daily Record 1991You cant mention the Law Society without mentioning crooked lawyers. The video footage, apparently posted by legal insiders, also shows a stunning arrogance on the part of Law Society officials, who remain unrepentant about the way the organisation has treated everyone in the past. On-camera performances from the Law Society’s top officials may lead readers to wonder why even some solicitors accused the Law Society’s top brass of voting fiddles & much more in the ever so slightly overcooked debate on Alternative Business Structures (ABS) and the Legal Services Bill at the Scottish Parliament, accusations & squabbles which boiled over in the unforgettable televised interview with the Govan Law Centre’s Mike Dailly and the former Law Society of Scotland President, Ian Smart, HERE

Current Law Society President Jamie Millar introduces the meeting with a joke on abs & Toyota which goes down with the audience like an old British Leyland Morris Marina (click image below to view video)

Unfit for Consumer Consumption : Law Society of Scotland’s Director of Regulation Philip Yelland discusses the Law Society’s new regulatory role relating to the Legal Services (Scotland) Act 2010 (click image below to view video)

Practice Rules changes : Digital images, digital fiddles, a consultation & money laundering rule changes also announced by the Law Society’s Phillip Yelland (click image below to view video)

More video footage from the Law Society’s meeting can be viewed at Lawtalks including footage of the Law Society’s ‘current’ Chief Executive Lorna Jack & others discussing what are issues which will heavily affect Scots consumers of legal services.

Call me old fashioned, but I always thought Douglas Mill could give a better speech, and well .. a much more honest indication of just how honest the Law Society of Scotland really is when it comes to regulation of ‘crooked lawyers’ ..

Douglas Mill tells the Scottish Parliament he never became involved in crooked lawyers, while John Swinney reveals Mr Mill did exactly that … (click image below to view video)

Just why the Scottish Government would allow the historically crooked & unrepentant Law Society of Scotland a position as an “approved regulator” in the new post Legal Services Act expanded legal services marketplace in Scotland is beyond the realm of common sense, or concern for protection of consumers & fee paying clients who will again, suffer the Law Society of Scotland, and now the Scottish Legal Complaints Commission’s anti-client, anti-consumer attitudes on regulatory matters where protection of the public & fee paying clients should come first, not last.


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‘Choice’ but not as we know it : Legal Services Bill passed, Scots access to justice remains mostly under Law Society’s control

Debating chamberScottish Parliament passed Legal Services Bill, doing no particular favours for consumers. THE Legal Services Bill was finally passed by MSPs at the Scottish Parliament late yesterday afternoon after what can only be described as a round of ‘buy one amendment get one free’ set of deals between the Scottish Government & Law Society of Scotland ensuring consumer choice & competition in Scotland’s legal services marketplace will for the most part, remain out of reach of Scots consumers.

The Law Society are happy as are most of the big law firms in Scotland who supported the bill, happy their fiefdom of the Scottish legal services market has been preserved once again, and ‘meddling outsiders’ kept out of Scotland’s multi billion pound racket legal business. As for the Consumer bodies, well, most of them are just having to put a brave face on things and say they ‘welcome’ the bill which we all know is a mere shadow of England’s soon to come into force Clementi proposals and the Which? supercomplaint which began the whole Legal Services Bill process in Scotland.

Fergus Ewing Scottish ParliamentCommunity Safety Minister Fergus Ewing, said the bill would deliver benefits to lawyers & clients, after being forced by the Law Society to amend access to justice plans. The Scottish Government’s Minister for Community Safety Fergus Ewing commenting on the passage of the bill through the Scottish Parliament said: “The passage of the Legal Services (Scotland) Bill today is good news for our businesses and consumers. At the heart of this Bill is a desire to modernise the profession. It presents greater opportunities, in a regulated framework, for firms of all sizes to be more competitive and to devise a business model which suits them and their clients.”

He ended by saying : “The Bill will deliver clear benefits for the legal profession and consumers.”

The Law Society’s media release reflected the profession’s welcome relief their cash registers will still be ringing up huge charges & fees to clients for some of the western world’s worst quality legal services. The Law Society were quick to gloat their amendments, forced on the weak SNP minority controlled Scottish Executive “meant the ‘Tesco law’ option, which would have allowed 100% of non-solicitor ownership of a law firm, was ruled out for Scotland.”

The Law Society release went onto triumphantly announce : “The legislation will for the first time allow non-solicitors to set up in partnership with solicitors to provide legal services in Scotland. The Bill, as passed, will mean solicitors and other regulated professionals must still have a majority share of at least 51% in any new legal services business, with the remaining 49% open to other external investors.”

jamie_millarJamie Millar, president of the Law Society whose own law firm Lindsays is linked to a dishonest firm of Borders solicitors, said: “I am pleased that MSPs have voted to approve this legislation. These changes will broaden access to legal services and allow the Scottish legal profession to remain competitive against a challenging economic backdrop and in an increasingly international, competitive market. At the same time, the Bill continues to protect the principles and core values that underpin the Scottish legal profession.”

He continued : “There has been much debate, both within and outwith the legal profession, on this Bill and its provisions to allow solicitors to enter into practice with non-solicitors. However, it is now important to move forward and ensure these changes work in practice within the strongest possible regulatory framework. The Society intends to work with government to enhance the provision of legal services and access to justice for people in Scotland.”

One client who has been involved in a bitter 5 year battle with the Law Society and has faced problems in securing legal representation after several law firms dumped him over a case involving a complaint regarding his original solicitor’s embezzlement of over £60,000 from the sale of land scoffed at Mr Millar’s statement.

He said “What principles and core values of the legal profession is Mr Millar talking about ? I know of one solicitor who is a cocaine user, another who is a convicted paedophile, another who was charged with raping & assaulting his own wife, and another who has defrauded over 15 clients of several million pounds yet each of these crooks are still practising law in Scotland.”

He continued : “Mr Millar and his colleagues are talking a lot of rubbish when they talk about values of the legal profession and access to justice. There are no values and there is no access to justice. People should wake up to realise their solicitors and those in charge of regulating them are not be as clean as they claim to be.”

Consumer Focus Scotland logoConsumer Focus Scotland’s Director, Marieke Dwarshuis commented in a statement on the Legal Services Bill vote, saying : “We are delighted that Parliament has voted in favour of widening choice and protection for users of legal services and increasing access to justice. We have long argued that these changes are in the interest of consumers and are pleased that today’s vote will pave the way for the development of a legal services market which better meets the needs of the public.”

Ms Dwarshuis continued : “We recognise that there are many who remain sceptical about the benefits the Bill will bring about, but are confident that in time, most will come to accept that the legislation will be effective for both users of legal services and the legal profession.”

Which logoWhich? also ‘welcomed’ the Legal Services Bill. A spokesperson for Which?, whose supercomplaint began the Legal Services Bill’s peculiarly Scottish journey, in comparison to the much easier and stronger pro-consumer friendly Legal Services Act (2007) for England & Wales, said : “We are delighted to welcome the Bill which will improve legal services for the public in Scotland.”

Doubtless however, some at Which? must be feeling a touch put out over the way the Law Society of Scotland so easily butchered their proposals for free market competition in legal services, as what was passed yesterday in the Scottish Parliament clearly puts Scots consumers on a less choice, less protected, lower standard of service footing than consumers in England & Wales.

The Office of Fair Trading, who issued a report calling for changes to Scotland’s closed shop legal services market has issued no press release or comment.

I could easily write something along the lines of … I find it hard to believe the Law Society were able to amend the bill, bully the Scottish Government to introduce amendments, call in msps for ‘personal briefings’, suggesting they follow the profession’s line to “avoid trouble further down the line”, ensure consumers or anyone with an actual experience of how legal services are provided were not allowed to testify in public to the Justice Committee … but there wouldn’t be much point, as what some might find hard to believe, happened, and I covered it as the Legal Services Bill progressed through Holyrood, here : Legal Services Bill – How Scotland’s legal profession avoided giving consumers wider access to justice

In my opinion, the whole debate on the Legal Services Bill can be summed up in one short television appearance between Mike Dailly & former Law Society President Ian Smart. It really was nothing more than a battle for market share and power between factions of the legal profession … nothing really to do with consumers at all. You can watch the video of Ian Smart & Mike Dailly slogging it out on live television here : Law Society President Ian Smart v Govan Centre’s Mike Dailly on Legal Services Bill reforms. There would have also been a good video clip of Fergus Ewing caving into solicitors during a Law Society meeting, however the Law Society pulled the clip from their own website for reasons unknown – or perhaps so the public couldn’t see how easy it is for the legal profession to influence an elected politician.

Video coverage of key points of testimony on the Legal Services Bill to the Justice Committee by the legal profession and consumer groups, can be viewed in my earlier reports or at InjusticeTV & LawyerTV

I’d be happy if someone could prove me wrong – quote me an example if you can .. however the odds are stacked against consumer rights taking precedence over the legal profession in Scotland and every single piece of legislation, order or amendment passed by the Scottish Parliament concerning legal services or regulation of our country’s legal system since the Scottish Parliament came into existence in 1997 leaves the consumer interest far behind that of the legal profession – even the Legal profession & Legal aid Scotland Act 2007, passed in a similar blaze of glory, gory & Law Society sponsored resistance at Holyrood, which as we all now know has ended up a brutalised, watered down, now almost useless piece of legislation in terms of consumer protection from Scotland’s historically poor quality legal services market.

If anything can be learned from the way the Scottish Parliament handled the Legal Services Bill I’d say its this – collectively, msps in the Scottish Parliament cannot be trusted to pass a piece of legislation involving the legal system which puts the rights of ordinary members of the public over & above the interests of the legal profession. Its as simple as that. There is no other conclusion someone outside the Scots legal system’s bubble can reach on the available evidence.

It is with some irony that on the same day England & Wales placed the consumers interests first, moving to fully independent regulation of their legal services market, Scotland took a backward step which will see the Law Society of Scotland ultimately appointed by the current SNP controlled Scottish Executive as an “approved regulator” to wipe the floor with consumer complaints against legal services once again.

On this note, consumers in Scotland who actually value what they have left in their lives, what they have worked for, what they own, what assets they have, might wish to consider using legal services in England if at all possible because at least consumers might have better protection from independent regulation in the form of the new Legal Ombudsman for England & Wales, which at least so far, appears to be a world of difference from any Scottish solution born from the Law Society of Scotland’s grip over Scots legal reform …


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Scottish Parliament urged by Consumer bodies ‘to put public interest first’ in Legal Services Bill vote & reject Law Society ‘anti-consumer-choice’ amendments

Debating chamberHolyrood will debate & vote on the Legal Services Bill on Wednesday 6th October 2010. CONSUMER ORGANISATIONS in Scotland & across the UK have today urged the Scottish Parliament’s MSPs to widen choice for users of legal services by passing the Legal Services Bill, and to reject amendments mostly demanded by the Law Society of Scotland & the legal profession’s current roll of vested interests that would change the current ownership provisions and fundamentally dilute the legislation’s potential impact on the legal services market, the aims of which are to expand Scots consumers access to justice & quality legal services as is being implemented in England & Wales through equivalent UK legislation.

As I reported earlier today, the Legal Services Bill originates from proposals originally put forward by UK consumer organisation Which? and the Office of Fair Trading’s subsequent recommendations to break open the monopolistic Scottish legal services market which has long been dominated by solicitors & advocates. The Law Society of Scotland has continually demanded changes to the legislation which would hand control of the legal services market back to the Society as an ‘approved regulator’, which I reported on earlier, HERE

Consumer Focus Scotland logoConsumer Focus Scotland urges MSPs to pass the Legal Services Bill and reject amendments from ‘vested interests’. Speaking in advance of Wednesday’s Scottish Parliament debate on the Legal Services (Scotland) Bill at Stage 3, Marieke Dwarshuis, Director of Consumer Focus Scotland, said: “Throughout the Parliament’s consideration of this Bill, the arguments in favour of widening choice and protection for users of legal services and increasing access to justice have often been overshadowed by the interests of the legal profession.

Mr Dwarshuis continued : “We are confident that the alternative business structures the Bill will permit legal firms to pursue will support the development of a more open, innovative and competitive legal services market in Scotland, which better meets the needs of those using legal services. The Bill will also increase access to justice, by allowing advice agencies to employ solicitors directly, and will protect consumers who use currently unregulated will writing services.

Mr Dwarshuis concluded urging MSPs to pass the bill, saying : “For these reasons we are urging MSPs to widen choice for users of legal services by passing the Bill, and to reject amendments that would change the current ownership provisions and fundamentally dilute the legislation’s potential impact on the legal services market.”

Which logoWhich? began the road to legal services reform in Scotland with their supercomplaint to the OFT over Law Society monopoly of the Scots closed shop legal services market. Consumer group Which? who were responsible for the supercomplaint to the Office of Fair Trading which began the long process to overhaul competition in the Scottish legal services marketplace also issued a plea to the Scottish Parliament ahead of its vote tomorrow, its chief executive, Peter Vicary-Smith, commenting : “Since the launch of our supercomplaint in May 2007, Which? has campaigned for the opening up of legal services to provide more competition and better services for the public in Scotland. Too often the debate has been dominated by the interests of the legal profession when it should have been about the best interests of the public.

Mr Vicary-Smith urged MSPS to put the interests of the public first, saying : “The Legal Services Bill debate tomorrow must be about the public deserving and receiving the best and most effective provision of legal services for the future. That cannot happen without the legal profession being allowed to modernise. ‘We urge MSPs to put the interest of the public first and vote through the Legal Services Bill.”

Consumer Focus Scotland also issued a statement on their view regarding ‘approved regulators’ which are to be appointed by the Scottish Government to regulate current & new entrants to the expanded legal services market if the bill becomes law.

The unwelcome prospect of the Law Society of Scotland being made an ‘approved regulator’, has caused many (including myself) to suspect having the Law Society again regulate complaints involving legal services will bring the same infamous historical problems regarding regulation & consumer protection against poor legal services in Scotland as Scots consumers have always had to bear when attempting to gain a fair hearing of complaints against the legal profession.

A spokesperson for Consumer Focus Scotland gave its view on approved regulators :

“The key principle that must underpin the bill is that users of legal services must have the same level of protection whatever legal services provider they use. We believe it is crucial that all regulators of legal services apply high standards of regulation. For example, we are pleased that a policy of proactive regulation is to be adopted for licensed legal services providers. It is in the interests of consumers that regular checks are undertaken to ensure licensed providers are acting in a way which is compatible with the regulatory objectives, rather than waiting until a consumer has been adversely affected before taking action. We believe the principle of proactive regulation should also be applied to regulation of traditional forms of practice to ensure consumers can be confident of the consistency of approach to the regulation of legal services, whatever type of provider they access.”

“As regards any specific potential regulators, we did not support the inclusion of section 7(4)(a)(i) of the Bill, which allows authorisation to act as a regulator of licensed legal services providers to be awarded without limit of time. We believe it is necessary to have in place a robust procedure to review the authorisation of a regulator of licensed legal services, including reviewing how their regulatory scheme adheres to and applies the regulatory objectives and obligations.”

“We were disappointed that the Bill does not contain provision for establishing an advisory panel to advise Ministers on applications for authorisation to act as an approved regulator and to keep the regulatory framework under review. We stated in our response to the ‘Wider Choice and Better Protection’ consultation that establishing an advisory panel was a necessary safeguard, given the potential for a regulatory body to have the dual or multiple responsibilities for regulating a licensed legal services provider, regulating individual professionals and promoting the interests of the public and the profession. Such a panel could also play an important role in monitoring the regulator body’s performance against the regulatory objectives. We suggested that as with the Consumer Panel in England and Wales, this panel should be made up entirely of non-lawyers and should include representation of the consumer interest.”

Video coverage of key points of testimony on the Legal Services Bill to the Justice Committee by the legal profession and consumer groups, can be viewed in my earlier reports listed below or at InjusticeTV & LawyerTV

Readers can view my report of the Law Society of Scotland’s testimony on the Legal Services Bill to the Scottish Parliament, here : Little mention of consumer protection for Scots as Law Society give evidence to Holyrood on Legal Services Bill reforms

Earlier coverage of the OFT & Which? testimony on the Legal Services Bill to the Scottish Parliament is available here : OFT & Which? call for independent regulation of lawyers as Justice Committee hears evidence on Legal Services Bill

Earlier coverage of the Faculty of Advocates, Society of Solicitor Advocates & Professor Alan Paterson’s testimony on the Legal Services Bill to the Scottish Parliament is available here : Holyrood’s Justice Committee hears of doubts & criticisms from Law Professor & Faculty of Advocates on Legal Services Bill reforms

Earlier coverage of Consumer Focus Scotland & the UNITE union’s testimony on the Legal Services Bill to the Scottish Parliament is available here : Legal Services Bill : Consumer Focus & UNITE union differ over access to justice proposals as ‘Tesco Law’ comes under the Holyrood microscope

You can read my full coverage of the progress of the Legal Services Bill here : Legal Services Bill for Scotland – The story so far and decide for yourselves how much the Scottish Government’s proposals for improving access to justice will really improve YOUR access to justice.

Consumers will benefit to a degree if the Legal Services Bill is passed and will benefit a whole lot more if many of the amendments demanded by the Law Society of Scotland & vested interests are rejected …. indeed .. MSPs should put the public interest first during tomorrow’s vote on the Legal Services Bill.


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