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Voting on 5th May ? Keep in mind Scotland’s Justice system remains far too dishonest, far too “Victorian”, for independence from the UK

In case you didn’t notice, there is an election in Scotland tomorrow, May 5 2011. If you are eligible to vote, it is your privilege, right & duty to do so, no matter how cynical or critical you are of our politicians, the justice system, Scotland’s economy or even if you have a beef with the coalition Government at Westminster. However, as you are probably here to read topics of justice, rather than politics, there are some things you may wish to take into account before casting your vote …

The short version of what I am about to say is “If you are here looking for advice on who to vote for, vote for a party other than those leading the polls so at least there’s a chance of the winners being held to account, and reigned in on any daft, crazy policies which will ultimately do Scotland a great deal of harm.” Remember, Annabel isn’t so bad after all, and unlike some this time around, she does make a lot of sense.

Now, the dreaded long version. One thing which has been glaringly obvious over the past four years since 2007, and indeed much longer than that, probably going back to the ‘re-imagined’ Scottish Parliament of 1999, is that our beloved Scottish justice system is simply not up to the mark, not up to any real level of honesty, in fact, perhaps our beloved Scottish justice system is up to far too much dishonesty to merit & justify Scotland’s independence from the rest of the UK. I mean, really, what use to Scots is independence if the justice system is bent ? None, as far as I can see, and as we know, the justice system has more bends in it than a corkscrew hazel tree.

Individuals and entire groups or classes of people have been discriminated or prejudiced against at the hands of the Scottish justice system, some even thrown in jail for crimes they did not commit, others persecuted by the very legal system itself for daring to criticise it, stand up to it, take issue with their own circumstances by demanding a fair hearing, and there are of course, even those who have suffered at the hands of the legal profession itself, who have used the law & courts as a weapon to deny anyone they do not like, access to justice. It happened yesterday, it will happen today, and it will happen tomorrow.

While the arguments & excuses still rage over the now famous Cadder v HMA ruling at the Supreme Court in London in October 2010, you only need to look back to the Cadder case and what happened to understand that the Government of the day in Scotland, in this case, the SNP, and indeed all previous administrations believed it was right for anyone arrested by Police to be questioned without a lawyer present. Good for a quick guilty verdict of course, saves a lot of detective work and of course a lot of money along the way for the likes of the Legal Aid Board.

Amazingly while such a highly dubious arrangement of interrogating suspects has not been practised in the rest of the UK, and indeed quite a few countries around the world for many years (some jurisdictions would call such interrogation without a lawyer “unconstitutional”), no one in the Scottish legal establishment bothered to raise it as a case until the European Court ruled in Salduz v Turkey and made the law as it now stands.

Did a Scottish court react to this change in European Law first, considering there must surely have been a few outstanding incidents where people were denied access to a lawyer while being held by the authorities ? No. After the European ruling, it took a court based in England, the UK’s Supreme Court to rule on the Cadder case, and decide Scots, like everyone else in the rest of the UK and many other jurisdictions, had the right to a lawyer being present while being interrogated by the authorities.

Take it from me, Scotland’s Court of Session would never have done the same. Indeed, this is exactly why the Cadder case ended up in the Supreme Court in London, because the Court of Session thought it was fine (and I dare say would like it still to be fine) to hold someone, whether guilty or not, and get an admission without the right to having a lawyer present. Easy money for the judges, the prosecution team, and someone put away with a protracted press release touting yet another “successful prosecution” and triumph for the authorities. Great, until someone realises the wrong person is behind bars.

If the Supreme Court had not ruled as it did, as Scots, we would still not have the right to a lawyer being present during interrogation, and the courts would be fine with it, but of course Cadder and its outcome goes much further than that, sending a shot across the bows of Scotland’s antique justice system where the right to a fair hearing, the right to legal representation, or even the right to have funding for legal representation all appear to be a right too far those in the legal establishment who sometimes feel it is in the interests of the justice system to deny justice to certain individuals or cases.

If we were independent, you can kiss goodbye to the Supreme Court in London. If not immediately, certainly when it issues another controversial ruling requiring Justice-Secretary-for-Life Kenny MacAskill to change the law. You might also kiss goodbye to certain parts or maybe all of European Commission Human Rights Legislation (ECHR) which any future independent Scottish Government may begin to find ‘inconvenient’ to its management, or as we have seen in the past four years, lack of management of Scotland’s justice system.

For another comparison of recent events in the English justice system compared to our own, look at the death of Ian Tomlinson, who, a jury in London yesterday decided had been “unlawfully killed” by the actions of a Police Officer. Does anyone really think a Sheriff presiding over a Fatal Accident Inquiry in Scotland would have came to such a decision in a similar case had some Policeman did the same north of the border ? Fat Chance, and we all know it. The bereaved family would be fighting for justice for years, and they themselves would probably end up being victimised by the legal system for daring to take issue with it.

Look around the Scottish justice system and you will see a litany of miscarriages of justice, where for instance, the say so of dubious witnesses or even Police Officers themselves have contributed to guilty verdicts and long sentences of ‘the so-obviously guilty’, only to be found later the investigation was compromised, perhaps even evidence was falsified, and those dubious witnesses lied through their teeth. Result : Someone ends up being freed after 12 years in jail for a crime they didn’t commit and spends the rest of their life trying to clear their name while politicians sit back, promise much yet do little, and all the while the court, the judges, the legal system carrys on regardless.

How about the Lockerbie case and the long running controversy over the Lockerbie bomber Abdelbaset Al-Megrahi’s conviction & release. Despite all the calls for independent inquiries, calls for, & half hearted attempts at the release of documents to answer the many inconsistencies in the case, nothing has changed other than the fact Mr Megrahi was released back to Libya on compassionate grounds by Justice Secretary Kenny MacAskill, so conveniently avoiding any further progress in Mr Megrahi’s appeal at the Court of Appeal in Edinburgh, where the gritted teeth of the judges (one looked like he had bruxism) was much more obvious to most who saw the spectacle rather than any hope the court would turn its attention to matters at hand and quash a verdict which many around the world question. Last time I checked, this farce happened under an SNP administration.

How about Legal Aid ? If you really need it, do you think you might really get it ? It appears if the Scottish Legal Aid Board don’t like the look of your face, or someone, perhaps a someone of very high standing or position in the legal system puts in a bad word for you, perhaps accompanied by a long poisoned pen letter saying why you shouldn’t get legal aid, you don’t get it. No legal aid for you, therefore no access to a lawyer and no access to justice.

Yet over the past four years, certain lawyers as I previously reported, have been claiming hundreds of thousands of pounds of legal aid for themselves, collectively, millions of pounds, yet many of their clients never really had access to justice, and guess what ? the Scottish Government just let it happen. Yes, all those millions of pounds of legal aid, paid for by taxpayers, ended up lining the pockets of a few solicitors who were never prosecuted for one penny of misuse of public funds, rather than that legal aid going to those who really needed it, or to those lawyers who really do represent their clients.

How about the much heralded Scottish civil courts review by Lord Gill, the big “sea change” for our “Victorian” justice system which was supposed to give access to justice for all ? The Civil Courts Review has said much but achieved little under the SNP. Admittedly though, the same could well have been true no matter which political party was in power. Lord Gill’s “groundbreaking” Civil Courts Review is now just another piece of history in the shattered landscape of Scotland’s justice system, a review which itself is now being reviewed, and all the trappings of easier access to justice which many expected to come from it, are but a pipe dream.

Do you think independence might change all that ? No. The same people who still rave about independence did nothing about clearing up the justice system in the past four years and did nothing about giving justice to those who are denied it. These same people will do nothing to clear up Scotland’s justice system. In fact, some of those raving about independence and taking back the oil wealth for Scotland, have in some cases I am privy to, actively blocked access to justice for many people denied it .. even some of their own constituents. To be sure, the only constant here in Scotland is, “Nothing Changes” when it comes to justice.

As an observation from someone who has seen many cases where the legal system has been used as a weapon against those who take it on, or those who dispute the legal establishment’s line on all things justice, Scotland’s justice system is probably worse off now than it was in 2007, and that’s saying something. All of those people who said the system will change with a new party in power after 2007, where are they now ? Still fighting the same battles, still arguing over the finer points of detail and still knee deep in inquiries which will end up changing nothing.

It is certainly not my job to tell you who to vote for, but you must vote if you want to have a say in Scotland’s political future. By this, I’m not telling you not to vote for the SNP, and I’m not telling you to vote Labour, Scottish Conservative or Liberal Democrat, or Independent, or Green or for any of the other parties out there, but I am asking you TO VOTE, and to ensure that consensus politics, fairness and even justice is delivered in this next Scottish Parliament.

Make the next five years Scotland’s five years, make the next five years your five years to give all Scots a say in our country, access to justice, and the right to be heard against those groups & vested interests who regularly talk over or even interdict our expectations of reforms, jobs, financial security, justice and life for the better. If you want to be part of something positive, vote, and vote to make sure those who you elect are held accountable to you.

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Beware of the one ‘fiddled’ independence referendum & one stooge managed Scottish Referendum Commission coming right up

Scottish GovernmentScottish Government wants a new one-shot quango to stooge manage independence referendum. I tend not to stray too far into reporting political news, principally because there are so many scandals involving the legal profession and its many tentacles, I am kept busy indefinitely on that subject. However, reading about how the Scottish Government are attempting to create a new quango with yet more stooge appointments, simply for the purpose of pushing the referendum on independence agenda, in a time when basically, Scotland is broke, deserves some attention.

If anyone came along & knocked on your door, telling you they were going to demolish your house to build a new road, you might say, oh, I’m going to fight this, take legal action, and either win, preventing your home being demolished, or walk away with a suitable compensation figure after a lot of haggling and letters.

If however, someone came along, knocked on your door and said, we are going to demolish your house to build a new road, and oh, by the way you cant take legal action, you have to appeal to this new quango we’ve created which is run by the company who are building the road, you might be forgiven for thinking you are being led up a one way garden path by the road builders. So alas, are we all being led up the same one way garden path with the plans exposed by the BBC on the Scottish Government’s planned referendum on independence, to be announced later this week.

logo_electoralcommissionElectoral Commission to be kept out of Scottish independence referendum on. Normally, the Electoral Commission, oversee elections in the UK. This has worked fairly well as we all know for many years. Yes, a few nags and niggles, but as always, we get who we vote for, regrets or not. However, the Scottish Government do not want to use the Electoral Commission for their independence referendum plan, which is certainly no surprise to me, because this time the SNP wont be able to get away with stuffing the ballot with a title “Alex Salmond for First Minister” as they did in the last Holyrood elections. That was certainly unfair on all concerned, and everyone being wise to that, I’m sure it will never be allowed to happen again, hence, no Electoral Commission please, we know your tricks .. you will spot any fiddles in the questions tout de suite so cant allow that.

So, as appears to be tradition, when an organisation might not give Ministers the result they want, they call in, or better still create a new body to give them the result they want .. and hence here we are now reading about a new Scottish Referendum Commission, which will be doubtless stuffed with quango style appointed people who have one track minds to hand over the one result the current Scottish Government want – a “Yes” for independence, at any cost, and as garbled a set of questions to the electorate that no one will be able to fathom out.

I’d say that is a fit up, but don’t take my word for it, look through the Freedom of Information disclosures obtained by the BBC and released yesterday.

Personally, I am left wondering what they are going to call this referendum quango .. how about the Scottish Legal Independence Referendum Commission ?

Surely it could be modelled on the entirely dishonest failure & quango fat cat ridden expenses lined Scottish Legal Complaints Commission .. who are serving the legal profession unbelievably well, considering it was actually set up to give the public a chance against, well … the same rogue lawyers Mr MacAskill professed his Scottish Government owed a big debt for their election ‘success

At a time of huge public service cuts, rising unemployment, our banks still on the rocks, and the national debt (mainly thanks to those on-the-rocks banks which had to be saved) sky high .. I could think of a lot more better use for public funds, and legislative time at Holyrood. Anyway, arent we all supposed to stick together in times of crisis ?

Read the full exchanges obtained by the BBC under FOI [2.91MB] (pdf)

A selection of those FOI disclosures obtained by the BBC, well worth reading (click on images for larger size) :

Scottish Independence Referendum Plans FOI release to BBC_21 Scottish Independence Referendum Plans FOI release to BBC_22 Scottish Independence Referendum Plans FOI release to BBC_23 Scottish Independence Referendum Plans FOI release to BBC_24 Scottish Independence Referendum Plans FOI release to BBC_25

Scottish Independence Referendum Plans FOI release to BBC_26 Scottish Independence Referendum Plans FOI release to BBC_27 Scottish Independence Referendum Plans FOI release to BBC_29 Scottish Independence Referendum Plans FOI release to BBC_30

BBC News reports :

Plans for special body to run independence referendum

The Scottish government plans to set up a special body to run a future referendum on independence.

Ministers do not want to use the Electoral Commission which overseas Westminster elections.

The plan was revealed in minutes of meetings which were obtained by the BBC under Freedom of Information.

The draft bill on the independence referendum – which could take place as soon as 30 November – is expected to be published on Friday.

Email from the Scottish government, 13 march, 2009 – “We are now looking at what the question in an independence referendum might be and at some point will need to show we have properly assessed it for intelligibility, neutrality, etc.”

Electoral Commission minute, 22 September, 2009 – “Scottish government officials confirmed… that there was currently no provision to consult any organisation as to the intelligibility of the referendum question.”

Electoral Commission minutes, 6 November, 2009 – “There seems little regard to the remit and role of what the Scottish Referendum Commission would actually do.”

The Electoral Commission has a statutory role to run referenda called by Westminster, but has no formal role in those called by the Scottish Parliament.

In the minutes obtained by BBC One’s Politics Show, civil servants told the commission they planned to set up a new body – the Scottish Referendum Commission – to run the election.

The paperwork also revealed the concerns of the Westminster commission over the wording of the questions and that the timescale towards the poll was too short.

A minute from September last year said: “Scottish Government officials … confirmed that there was currently no provision to consult any organisation as to the intelligibility of the referendum question”.

No Scottish minister would comment on the FOI minutes, however, a spokesperson said that Scottish voters already had quite recent experience of a multi-option constitutional referendum.

The Electoral Commission said that when the government sets out the referendum on full independence, it would “consider it and submit a response” using experience of planning for referendums in the UK.

It added: “We are not able to comment until this public consultation is opened.”

and the latest today on this can be read here : Referendum ballot ‘rigging’ claim

 

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Holyrood’s Justice Committee calls on public to submit experiences on using & improving Scotland’s legal services market

Debating chamberScottish Parliament calls for evidence on public use of courts & legal services. If you have used a Scottish lawyer or the courts and felt the service you did not receive was tip top, or bordered on the woefully inadequate, now is the time to put those experiences in writing by 1st December 2009 to the Scottish Parliament’s Justice Committee, along with suggestions for improvement, and your thoughts on the proposals contained in the Scottish Government’s Legal Services Bill, which hopes to give Scots wider choice of legal representation and a more accessible, competent and trustworthy legal services market than the current broken model, monopolised by the Law Society of Scotland and so poorly regulated that consumer complaints statistics have previously reached staggering heights of up to 8000 cases a year against less than 10,000 solicitors in private practice.

You can view the current version of the Legal Services Bill here : Bill (as introduced) (469KB pdf posted 01.10.2009)

The Legal Services Bill concerns the provision and regulation of legal services in Scotland. It takes forward the proposals contained in the Scottish Government’s consultation paper Wider choice and better protection – a consultation paper on the regulation of legal services in Scotland published at the turn of the year. That consultation followed on from reform across the legal services market in the rest of the UK, driven initially by the 2004 report of the European Commission on Competition in professional services and also prompted by a “super-complaint” by consumer group Which? to the Office of Fair Trading.

The Bill’s Policy Memorandum advises that the profession is facing significant challenges, including competition from English firms entering the Scottish legal services market and the effects of the economic downturn. The Bill aims to provide the opportunity to offer new forms of service, improve efficiency and innovation within solicitors’ firms, and provide access to different methods of capitalisation.

In practical terms, the Bill aims to broaden access to high quality legal services, by allowing solicitors to operate using different business models, for example allowing them to enter into business relationships with non-solicitors, allowing investment by non-solicitors, allowing external ownership and more generally freeing up the market.

The Bill proposes a system of licensed legal service providers, overseen by regulators approved and licensed by the Scottish Government. The Bill also includes related measures, for example:

  • to support the modernisation of the governance of the Law Society of Scotland
  • to allow the Lord President and the Scottish Ministers to grant professional and other bodies rights to conduct litigation and rights of audience in the Scottish Courts
  • to provide a more direct route by which other professionals, not just solicitors, might be authorised to deal with executries
  • to give the Scottish Legal Aid Board the duty of monitoring the availability and accessibility of legal services.

Legal Services (Scotland) Bill – call for written evidence

The Scottish Parliament’s Justice Committee is seeking views on the general principles of the Legal Services (Scotland) Bill (The Scottish Parliament: – Bills – Legal Services (Scotland) Bill (SP Bill 30)). The Scottish Government has prepared a Policy Memorandum, Explanatory Notes and other accompanying documents (including a Financial Memorandum) which are published to accompany the Bill.

The Bill was introduced in the Parliament on 30 September 2009 and the Justice Committee has been designated lead committee for Stage 1 of the Bill. (The Finance and Subordinate Legislation Committees will also consider the Bill and report to the Justice Committee.) Stage 1 of the scrutiny process is concerned with the general principles of the Bill, although it is also an opportunity to flag up more specific concerns that could be addressed by amendment at later Stages.

The Justice Committee hopes to consider written submissions and to take oral evidence during December 2009 and January 2010 and to report on the Bill’s general principles by mid-February 2010.

In preparation for this, the Committee invites all interested parties to submit views on the Bill in writing. The Committee is interested to hear the views of all organisations, bodies and individuals on the proposals contained within the Bill and their likely impact. Comments do not have to cover all aspects of the Bill, only those proposals which are of interest or concern.

In making a submission, please indicate clearly whether or not you would wish to be invited to give oral evidence to the Committee (on 5 January 2010) to follow up on points made in your submission. If you do wish to give oral evidence, it is essential that your submission is received no later than Tuesday 1 December 2009 so that the Committee can decide, at its meeting on 8 December, whom to invite for the 5 January meeting. (Please note that the Committee may not invite all those who wish to give oral evidence.) If you do not wish to give oral evidence, your submission should be received by the 1 December deadline, if possible, and in any event no later than Friday 18 December.

How to submit written evidence

Before making a submission, please read the Parliament’s policy on treatment of written evidence by subject and mandatory committees. Written submissions should normally be limited to around 4 sides of A4 but, if they need to be much longer than this, they should be accompanied by a short summary of the main points. Submissions should be set out in numbered paragraphs. Where the submission refers to existing published material, it is preferable to provide hyperlinks or full citations (rather than extensive extracts). The Committee welcomes written evidence in English, Gaelic or any other language.

The Committee prefers to receive written submissions electronically (preferably in Microsoft Word format). These should be sent by e-mail to: lsbill@scottish.parliament.uk However you may also make hard copy written submissions to: Justice Committee, Room T3.60 ,The Scottish Parliament, Edinburgh. EH99 1SP Telephone : (0131) 348 5047.

My previous reports on the Legal Services Bill can be viewed HERE

I would encourage anyone who has used legal service in Scotland, to contribute to the Justice Committee’s deliberations on the Legal Services Bill to ensure that a much fairer system of legal services & wider choice of representation is put in place for all Scots. Your input into the debate will ensure the public’s voice is heard against the special vested interests of the legal profession and those who wish to retain market dominance over your right to choose who you want to handle your legal interests.

 

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Scotland’s Chief Judge Lord Hamilton asks Parliament ‘to defer’ McKenzie Friend petition after Scots wait 39 years for access to justice

Lord HamiltonScotland’s Lord President Lord Hamilton asked Holyrood ‘to defer’ McKenzie Friend petition. THIRTY NINE YEARS after the role of a McKenzie Friend was recognised in the English courts, allowing court users south of the border the invaluable assistance of a ‘McKenzie Friend’ in cases where litigants could not obtain legal representation, Scotland’s Lord President Lord Hamilton, has asked the Scottish Parliament ‘to defer’ the recent McKenzie Friend petition (Petition PE1247) until after the release of the Lord Justice Clerk Lord Gill’s review of Scotland’s Civil Justice system which is widely expected to make recommendations on introducing the availability of McKenzie Friends to users of Scotland’s courts.

Lord President Lord Hamilton to Petitions Committee - McKenzie FriendLord Hamilton claims ‘the Review will make a recommendation on this matter in its Report’. “Thank you for your letter of 6 May 2009. This asks whether the Court of Session supports the introduction of a “McKenzie Friend” facility and for reasons as to its view. “As it is noted in the Official report of the discussion of the Committee at its meeting on 5 May, this is a matter which is under consideration by the Civil Courts Review under the chairmanship of the Lord Justice Clerk, the Rt Hon Lord Gill. In its consultation paper, the Review asked for views on the following question; “Should a person without a right of audience be entitled to address the court on behalf of a party litigant and, if so, in what circumstances?”

“In light of this we can, I think, reasonably conclude that the Review will make a recommendation on this matter in its Report. I understand the publication of that document to be imminent. In view of this, I do not at this stage wish to express a view as to the position of the Court of Session on the matter. I should instead wish to consider the matter in light of whatever the Review recommends. If the Committee were to decide to defer further consideration of the petition until after the Review has been published, I should be content to respond further at that stage.”

However, while the Lord Justice General may be comfortable in asking Holyrood ‘to defer’ consideration of the McKenzie Friend petition .. most feel that Scots legal rights have been deferred long enough after an outrageous thirty nine year wait for the introduction of the McKenzie Friend facility in Scotland while the rest of the United Kingdom has successfully used the facility to help individuals access to justice.

For one thing, there must now be an explanation as to why Scots have had to wait thirty nine years to exercise the same legal rights the rest of the country has used effectively in resolving legal disputes … but a legal insider today answered that question very clearly, accusing the Scottish legal profession and the Law Society of Scotland of blocking the introduction of McKenzie Friends to Scotland’s courts simply because it would ruin lawyers business and challenge the Law Society’s monopoly on public access to justice.

He said : “The only reason McKenzie Friends have been kept out of Scotland’s courts is money, nothing else.”

“If you look at the kinds of civil cases in the Scottish courts, up to maybe 30% or even higher of those could be resolved by the litigant appearing themselves, helped by a McKenzie Friend. You don’t need to be a rocket scientist to work out that if law firms lost that 30% or more of their business they would not be making as much money as they have done by maintaining a grip on rights of audience in Scotland for forty years.”

He went on : “Forget all those arguments about clogging up the courts with people who are unqualified to represent themselves or don’t know the law properly. The court is there to serve the public, not itself or the legal profession’s requirement for a fast and protracted buck out of the client’s purse. People themselves know their own case best, no matter what lawyers might say … and if you have a party litigant, assisted by a McKenzie Friend, there may well be much speedier resolutions to a lot of low level civil actions which are clogging up Scotland’s courts for no reason other than to generate more legal fees for solicitors who are just out to make a profit out of stringing out client’s civil cases for years.”

In all likelihood, this statement is true, as most of the significant legal reforms for civil justice, from the small claims limit (held in Scotland at £350 for 17 years while in England it is up to £5,000), to the public’s lack of of choice in legal representation in Scotland (The reforms of the Law Reform 1990 Act held back for 19 years) and now coincidentally we find the rest of the UK has successfully used McKenzie friends for 39 years .. while the legal establishment in Scotland forbade its introduction .. fearing loss of earnings. If you look at Scots rights in civil justice as things currently stand, all the delays of the reforms I have quoted .. and many I have not .. simply boil down to lawyers being concerned they are losing market share (and thereby, profit from legal fees) to people who can perfectly handle their own legal affairs, rather than going to a solicitor to have their legal affairs mishandled .. as is more often the case than not these days.

As readers will know, I reported on the campaign to bring McKenzie Friends to Scotland in previous articles, and efforts to secure a fair hearing for the petition were greatly enhanced by the appearance of Scotland’s only independent MSP, Margo MacDonald, speaking on the petition’s behalf, also supported by submissions from consumer organisation Which? and law reform campaigners including myself.

You can read my earlier reports on the McKenzie Friend petition here : Battle to bring McKenzie Friends to Scotland continues as Holyrood investigates ‘access to justice’ proposals, also McKenzie Friend proposal gains friends as consumer organisations rally to support petition’s hearing at Scottish Parliament & my initial report on the petition here : ‘McKenzie Friend’ proposal to Parliament seeks to end 39 years of lawyers monopoly over Scots access to justice

You can watch Margo MacDonald’s testimony to the Scottish Parliament’s Petitions Committee here :

Margo MacDonald speaks on behalf of McKenzie Friends Petition to Holyrood


English Courts Guidance for McKenzie Friends 0001It is recognised in England & Wales that Human Rights legislation allows litigants to argue for the presence & use of a McKenzie Friend in their case. It is also of significant importance that in the Lord President of the English courts guidance on the use of McKenzie Friends, where the English Lord President specifically states : “When considering any request for the assistance of a MF, the Human Rights Act 1998 Sch 1 Part 1 Article 6 is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request.” This glaring difference between how the English courts treat the McKenzie friend issue, versus the restrictions in Scotland, raises the possibility the Scottish courts refusal to allow litigants access to the McKenzie Friends has violated the rights of individuals for a considerable number of years.

You can read the full guidance for McKenzie Friends in England & Wales in pdf format, HERE and now we must wait on the ‘imminent’ publication of the Civil Justice Review to see how the issue of rights of representation in Scotland’s courts and the McKenzie Friend question is to be dealt with, and at least in the Chairman of the Review, Lord Gill, we seem to have someone who is forthright enough in his views to advocate change …

Lord GillLord Gill has already branded Scotland’s Civil Justice system as “Victorian” and in need of reform. Lord Gill, who has chaired the review of Scotland’s woefully antiquated civil justice system and who is well known for his forthright views, told a Law Society of Scotland conference that “The civil justice system in Scotland is a Victorian model that has survived by means of periodic piecemeal reforms. But in sustance, its structure and procedures are those of a century and a half ago. It is failing the litigant and, therefore, failing society.” You can read more of Lord Gill’s comments on the inadequacies of civil justice in Scotland, here : Senior judge hits out at Scotland’s ‘Victorian’ court system and you can download Lord Gill’s speech from the Law Society’s website (you better download it quickly) here : Lord Gill’s speech to Law Society conference (pdf)

You can read more about the Civil Justice Review here : Civil Courts Review

However, Lord Gill’s civil justice review does face a few problems, as the politicians are now realising the scale of his proposals, efforts are being undermined by consumer organisations such as Consumer Focus Scotland, to back up the Lord Justice Clerk’s findings, with a joint Consumer Focus Scotland – Scottish Legal Aid Board survey ruined by elements of the Scottish Government & Scottish Courts Service, restricting the total amount of people questioned to a meagre 35 out of thousands of potential civil court users. I broke this story as an exclusive, earlier, here : Justice Secretary accused of attempt to undermine Lord Gill civil justice review as Government backed survey targets only 35 court users

A source at the Scottish Parliament said today “There will be no delay in the McKenzie Friend Petition as the petitioner himself has already been notified of a new hearing in September. We have to move on, despite the wishes of others not to progress matters which are clearly in the public interest.”

So … McKenzie Friends should, and must, come to Scotland. It is our right. Rather than be second class citizens when it comes to the justice system in Scotland, we should be first class citizens .. and part of being first class citizens with a first class justice system, means taking away the power of the legal profession to dictate who among us has access to justice and who does not. It is everyone’s right to have access to justice and justice will only be done when that is the case.

 

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Holyrood after 10 years : Scotland wins on devolution but Scots still miss out on justice

Scottish ParliamentHolyrood brings devolution but no justice for Scots. While Scotland celebrates 10 years of devolution with the anniversary of the Scottish Parliament, Scots have not enjoyed increased access to justice or increased rights against corrupt professionals or reforms to over the span of the Holyrood parliament to-date.

While there is no denying it the Scottish Parliament has given us a stronger voice in our own affairs, the fact remains that in the 10 year span of the Scottish parliament so far, there has been scandal after scandal in the world of Scots law, where the legal profession and vested interests have for the main, delayed, dodged, or even obliterated most cases seeking remedy of injustice in Scotland from the McKie fingerprint saga, to the fate of the Lockerbie bomber, to the very public, consistent failures at Scotland’s Crown Office which have seen a string of high profile convictions quashed over ‘unsafe’ (doctored) evidence and even cases where the thoroughly guilty have walked free.

In the world of Scots civil justice, the pace of reform has been virtually non existent, with Scotland being one of the few countries where class actions are not allowed, simply due to fears the public will turn on the financial & legal sectors themselves , MacKenzie Friends, also still banned from the Scottish Courts, even after 39 years of service in the rest of the UK (and other countries), rights of audience reforms, initially brought in 20 years ago, still not fully implemented allowing the public to choose their legal representatives, rather than as things still stand – solicitors choosing their clients .. etc etc … the list is endless, suffice to say, Scots are third class citizens when it comes to civil justice, in fact, when it comes to any justice.

I am a supporter of Scotland having a Parliament. It certainly has given us a stronger and much needed voice in our own affairs.

Debating chamberMSPs – you pay their mortgage as well as your own but your house will be repossessed before theirs. I am not, however, a supporter of MSPs having us pay their mortgages (and everything else down to stamps) while earning £67,000 a year or the £96,000 a year the 6 Cabinet Ministers earn who do get their mortgages paid for by us. I am also not a supporter of the cosy arrangements certain MSPs have with the likes of the legal and financial professions, who seem to enjoy political favour after favour, where MSPs will happily take over parliament’s time to put forward their friend’s policies or legislative proposals, while oh-so—obviously blocking members of the public access to elected representatives or victims campaigns seeking resolutions to a wide range of cases of injustice, simply because those campaigns or cases conflict with potential donations from the professions.

scottishcabinet2MSPs help the professions much more than the public. Put simply, its nice & fancy for an MSP, even a Cabinet Secretary to be seen with a bunch of bankers & lawyers at a fancy dinner, and then the next week, take over some Parliamentary time to raise a motion on their dinner host’s behalf, but its not so convenient for an MSP to do the same for, say, abuse victims, or a cancer sufferer asking for withheld medication just because he’s in the wrong postcode, or perhaps say to victims of poisoned blood products – “oh we can answer and settle your cases next week because we know who is guilty” …. no .. its just not possible to do, is it … our politicians are just not honest enough to take those kind of simple steps … there’s too much … “oh .. we’ll see what we can do” (while worrying about how much they can secure for doing or not doing it) and 10 years pass, and nothing changes.

So what good is a parliament and a Government to people if there is no justice ? Well, there are plenty countries around the world who have Parliaments and Governments but, like Scotland have high levels of injustice. Thoughts turn to comparisons with several South American countries, which also prompted officials from the United Nations to call Scotland’s Justice system that of a “Banana Republic”. They were right to do so.

William_WallaceWilliam Wallace – he wouldn’t have wasted much time on bent politicians & crooked officials. Selling William Wallace to Scotland is fine, I think most of us probably look up to him, and oh, but to have someone like that in politics .. we will sadly never see. If, perhaps, we were able to travel back in time and inform William of how unjust Scotland is today, I suspect the response would be more of a raised claymore to those who commit injustice, cover it up, or prolong it for profit, rather than the usual bout of letter writing which many Scots and their families are forced to engage in to the smarmy, egotistical politicians of our day who lead only by cult and bluster, rather than face the truth by walking among their people and do as they are commanded by the very people they are supposed to serve, rather than rule.

I doubt William Wallace would have embarked in 5 or 10 year letter exchanges to help resolve the cases of victims who are denied justice, where perhaps the murder of a family member has gone without proper investigation, where innocent people have been vindictively set up with criminal charges only to be acquitted while politicians mounted a concerted attempt to cover up the falsehoods, negligence & corruption, where political interests have used our justice system to fiddle verdicts such as the Lockerbie trial , where victims of medical criminality have been allowed to die to protect corrupt civil servants who knew about poisoned blood products, and where the legal establishment (as I have reported on so often) have blocked legislative reforms to its own protection of crooked lawyers, crooked members of the judiciary, and unjust laws.

Of course, everyone laughs at people who claim injustice, don’t they ? its funny .. it didn’t happen to someone (yet) so they are not too bothered … but they stop laughing fast when they fall victim to an injustice that also cannot be put right because the same politicians of our present day who cry ‘Scotland ahoy’ and claim to represent our best interests, are too busy prostituting themselves generally to those who are causing the injustice, for top dollar.

Indeed, while the public struggle & usually fail to secure hearings from politicians, businessmen whose foreign empires are built on gambling money, can apparently secure the undivided attention of politicians, with even Ministers rushing to their side, even willing to change & bend the law as long as big finance heads their way, that’s Scotland today, nothing to do with William Wallace, I can assure you..

So what kind of a Scotland do we live in, when our Scotland has no justice and still no one humble or honest enough to give us justice ? Isn’t it time we took back Scotland, for Scot’s sakes ?

This is what Scots are left with on Justice after 10 years – a Justice Secretary who prides himself as owing a bunch of lawyers [and bankers] for putting him in power. But Scotland is made up of more than lawyers and bankers, Kenny …

Happy 10 years, Holyrood, but for my view, while people drop dead before receiving medication they’ve campaigned for 3 years to obtain, or abuse victims are denied help (even after writing to their MSP (now the Justice Secretary) for years) .. or victims of medical criminality die simply so that a few politicians & civil servants are spared the clink, there’s nothing much to celebrate .. just more work to be done, with maybe one day, an honest man or woman to be found among us who will do it, selflessly, without fear, serving and putting the community first, instead of vested interests & big money worship.

 

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Justice Secretary ‘remains bitter’ over calls to make Law Society of Scotland comply with Freedom of Information laws

Law Society of ScotlandLaw Society of Scotland officials are determined to prevent forced compliance with FOI. FOUR YEARS after the first calls were made to the Scottish Government to bring the Law Society of Scotland into compliance with Freedom of Information legislation, attitudes apparently remain unchanged at the Justice Department over calls to force greater transparency & accountability on the lawyers regulatory, despite the fact the new regulator for complaints against Scottish solicitors, the joint taxpayer-lawyer funded Scottish Legal Complaints Commission is itself FOI compliant.

I have reported on the Scottish Government’s reluctance to make the legal profession comply with Freedom of Information laws in an earlier article here : MacAskill’s ‘no intention to include Law Society in FOI review’ allows lawyers to keep scandals & criminal records hidden from public scrutiny

MacAskill tight lippedJustice Secretary MacAskill is rumoured to be ‘bitter’ over calls to make lawyers comply with Freedom of Information. The Scottish Government’s three year go slow on bringing the Law Society of Scotland into the scope of Freedom of Information legislation, has today been attributed by sources within the administration to problems of bias in the Justice Department itself, with civil servants being described as ‘very angry’ that members of the public should even be calling for such reforms. The Justice Secretary himself, aware of publicity surrounding the secretive nature of the Law Society is also rumoured to be “very bitter” that critics of the legal profession have even dared suggest the Law Society be brought within the scope of Freedom of Information legislation.

A legal insider today said : “Officials at the Justice Department are less than pleased that members of the public, campaign groups and journalists have made enquires on the lack of progress of reforms in legal services. Occasionally, civil servants have themselves hit out at critics of the slow pace of justice reforms, with less than gentlemanly outbursts, due to impressions given the Justice Department itself is now covering up for corruption, and even perhaps criminality in the legal profession itself.”

He went on : “The Justice Secretary himself, is well known to be vehemently against anyone who dares criticise his colleagues in the legal profession, to the point that any idea put forward from outside the legal establishment to ‘improve’ public access to justice, or, as in this case, making the legal profession compliant with freedom of information laws, MacAskill has set himself diametrically against, simply out of bloody mindedness.”

A senior journalist with one of Scotland’s major newspapers confirmed the level of hostility towards those calling for reform of the legal profession. He said : “One civil servant I know launched into a shocking barrage of insults against particular individuals whom it is well known the Law Society tried to exclude from major Scottish Parliamentary inquiries on the state of regulation of the legal profession.”

“I don’t think there is any need for this level of prejudice in the civil service. If it is the case that some officials within SG feel so partisan against the public on issues of reforming the legal profession, they should go work for the Law Society instead of the Scottish Government.”

ScottishGovernmentThe Scottish Government are bitterly resisting reforms to the legal sector. It seems somewhat at odds to me, with the era we are now living in, where secrecy, self regulation and the corruption & greed which both issues seem to breed, have virtually wiped out our main banks, trust in the financial sector, and even trust in politicians not to over claim on their expenses accounts, that the Scottish Government are still so bitterly resisting making the legal profession compliant with Freedom of Information laws, and also remain so opposed to implementing fully independent regulation of solicitors, to safeguard consumers best interests.

This resistance on the part of the Scottish Government to process any reforms of the way regulation and client business is handled by the Law Society of Scotland, is an almost perfect mirror image of the resistance from the legal profession itself, who are determined to remain immune from FOI legislation, and virtually all other forms of independent oversight which may very well end up revealing an even greater scale of corruption within the Scots legal sector which might take critics such as myself by surprise.

John SwinneyJohn Swinney revealed Law Society Chiefs threatened anyone who called for regulatory reforms. Indeed, while the first calls for making the Law Society of Scotland comply with Freedom of Information laws were being made, Cabinet Secretary John Swinney MSP, then in opposition, revealed that the Law Society’s then Chief Executive Douglas Mill was busy attacking such ideas, even issuing open threats to the Financial Services Authority and any future regulator who might consider taking a stick to the vast sea of corruption which surrounds areas such as the Law Society’s discredited Master Policy & Guarantee Fund client compensation arrangements, which some liken to money laundering operations.

John Swinney says a sea change is needed in attitudes to regulating the legal profession. How true …

Jane IrvineSLCC’s Chair Jane Irvine, supports the idea of making the Law Society comply with Freedom of Information. However, while Justice Secretary Kenny MacAskill continues his go slow on making the Law Society comply with Freedom of Information legislation, a growing number of consumer groups and even some from within the legal establishment itself, such as the Chair of the Scottish Legal Complaints Commission, Jane Irvine, are supporting the idea that the public interest would be best served by making the legal profession’s governing body FOI compliant.

You can read an earlier article I wrote about the SLCC’s Chief Jane Irvine who came out and supported FOI compliance for the Law Society of Scotland, here : Legal Complaints Chief supports ‘consumer advantages’ of removing Law Society’s Freedom of Info immunity

SLCC squareScottish Legal Complaints Commission has suffered several scandals as a result of FOI disclosures. Admittedly, the Scottish Legal Complaints Commission is no angel itself, when it comes to the Commission’s own compliance with Freedom of Information laws. In some cases, the SLCC has chosen (allegedly through Ministerial direction) to censor disclosed material to particular journalists, and on other occasions, has apparently been authorised to lie in FOI disclosures. You can find some more good FOI scandals involving the SLCC HERE.

SLCC 7&8th April Meeting Blanked out Page 1SLCC blacked out FOI disclosures in true Westminster style and Law Society might do the same if made FOI compliant. However, while the Information Commissioner is investigating these breeches of FOI laws by the SLCC, and has already criticised the commission in a number of decisions for their poor practices, FOI has brought us an invaluable insight into the way the legal profession will co-opt independent organisations set up as a result of legislation to look at client complaints, and perhaps even more importantly, has also shown us the steps some officials take, and the lengths some are willing to go, to stifle public debate and calls for legitimate reforms which are certainly in the public interest.

As politicians are subject to Freedom of Information laws, as the Police are subject to Freedom of Information laws, as indeed are many other public bodies & services, including local & national Government are subject to Freedom of Information laws, then so also must the legal profession be made subject to Freedom of Information laws, a reform which is definitely in the public interest.

 

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Cabinet Chief Swinney forced to intervene in independent investigation of insurance claims against crooked lawyers as Law Society ‘fearing worst’ demands secret pre-publication meetings

John SwinneyCabinet Secretary for Finance John Swinney intervenes in investigation after Law Society attempt to dictate remit & scope of inquiries. John Swinney MSP, the Cabinet Secretary for Finance, has been forced to intervene in a bitter exchange between officials of the Scottish Legal Complaints Commission and members of the public participating in the first independent investigation to be carried out into compensation claims made against Scottish solicitors, after it emerged the SLCC’s Chief Executive, Eileen Masterman had agreed to hand out copies of the research directly to the Law Society of Scotland, but had refused similar requests from members of the public whose views were being sought for the research.

I reported on the first ever independent investigation into claims made against Scottish solicitors in an earlier article, here : Scots public urged to take part in Commission’s survey on claims made against lawyers with Law Society’s Master Policy & Guarantee Fund

Eileen MastermanSLCC Chief Executive Eileen Masterman refused to hand over copies of research but Law Society to get a copy. The Commission’s Chief Executive, Eileen Masterman who received requests from the Law Society of Scotland for copies of the research even before the project began, agreed they would receive the research in a pre publication format, while denying similar requests from participating members of the public, citing among other reasons that the public “were not stakeholders in the research or the Scottish Legal Complaints Commission”, despite the fact that £2.5 million pounds of taxpayers money has been poured into the Commission, which has mostly went on officials huge salaries of up to £1350 a week and expenses perks of SLCC board members of up to £350 per day.

However, the Cabinet Chief Mr Swinney was brought into the issue by concerned constituents he has represented in the past on issues relating to claims & complaints against solicitors, over fears the Law Society were attempting to undermine the Commission’s research into claims against crooked lawyers, long known to be stage managed by the legal profession with clients achieving little or no success and most cases even being prevented from reaching court.

It was as we all know, Mr Swinney’s Holyrood confrontation with Law Society Chief Douglas Mill, over claims of corruption within the Master Policy which led to Mill’s downfall from the Society’s top position, which I reported on in early 2008, here : Breaking News : Law Society Chief Executive Douglas Mill who lied to Parliament, pursued ‘personal vendetta’ against critics – to resign

Mr Swinney has expressed deep concerns to the Commission over the research, and it can be revealed today the Cabinet Chief has written to the SLCC’s Chief Executive Eileen Masterman, reminding her that millions of pounds of taxpayers money has been spent on the Commission, making the Scots public “stakeholders” in ‘not only the research but also the organisation itself’. Mr Swinney contends (and has told SLCC Chief Executive Masterman in no uncertain terms) that members of the public participating in the research should also be given copies of the report at the same time the Law Society receives their copies, to ensure no alteration of the results of the research, which the Law Society is said to ‘fear the worst’ over, due to constant scandals involving client claims against crooked lawyers which often involve dirty tricks, delay and subterfuge from the Insurers who run the Master Policy on behalf of the Law Society of Scotland.

Philip YellandLaw Society of Scotland Director of Standards Philip Yelland asked for discussions on research before publication. In leaks from sources at the SLCC today, it can also be revealed the Law Society of Scotland have demanded exclusive access to the Master Policy research before it is published, and have also demanded discussion with the Commission, over fears that revelations from what is the first independent investigation ever to be carried out into financial claims made against ‘crooked lawyers’ in Scotland could be very damaging for the legal profession, the insurers and the Law Society of Scotland itself.

Law Society demands meeting over investigationLeaked emails from Law Society to SLCC demanded discussion of research before publication. Law Society Director Philip Yelland in his email to the SLCC Chief Executive Eileen Masterman asks : “There is the issue of the production of the final report and how the Commission would intend to use this. It is acceptable that in view of the provisions of the Freedom of Information Act at some stage the report will become public and it would be helpful at this stage to know whether it would be the intention of the Board of the Commission, once the report is produced, to discuss the matter with the professional bodies before formal publication or whether the Board would intend to discuss the final report with the professional organisations proper to any publication or indication of the steps that might be taken.”

Earlier paragraphs in Mr Yelland’s emails to the Commission were attacked by SLCC insiders, who branded them “little more than fishing attempts by the Law Society to gauge the scope of the SLCC’s research into the Master Policy, with a view to interfering in its terms & remit to save face and stop the public getting to know the truth.”

Mr Yelland’s fishing questions : “It is noted clearly that the Commission will want to speak with participants from the professional bodies (presumably the Guarantee Fund and Insurance Committees or members from these Committees) and it is also noted specifically that there is reference to a desire to speak to individuals. Is there any intention for the research to speak with individual solicitors about their views on the Master Policy and Guarantee Fund ?”

Yelland went on to enquire “So far as the Focus Groups are concerned, it is intended that there will be Focus groups involving members of the profession and mixed groups with members of the profession and the public ?”

Masterman agrees to hand over copies to Law SocietyProfessor Alan Paterson told by SLCC Chief Exec. Masterman that Law Society were expecting the worst on investigation of claims against crooked lawyers. Eileen Masterman responded by saying she would hand over copies of the research prior to publication, and in an email to Professor Alan Paterson, a board member of the Commission,  and Professor of Law at Strathclyde University, Ms Masterman said : ” ..I would be happy to give them (the Law Society) a preview of the report before publication (and I think we’ll have to publicise it fairly quickly after the Board have had an opportunity to consider it) but I don’t want us to be under any immediate pressure about how, or if, we’re going to take it forward.”

Eileen Masterman continued to Professor Paterson saying she thought the Law Society might feel they were in trouble with the research : “I get the impression that the Law Society of Scotland are expecting the worst and trying to second guess what that will be.”

A legal insider today accused the Law Society of attempting to dictate the terms of the Commission’s ground breaking research, and claimed officials at the SLCC “felt vulnerable to demands from the Law Society of Scotland for the inevitable edits of the parts of the research that the profession would not wish the public to read”.

He went on : “There is an intense feeling of distrust within the Commission’s staff that the Law Society of Scotland is constantly looking over our shoulders at what we are doing, and in reality, little is progressing at the Commission without the cooperation or say so of the profession’s governing body.”

Kenny MacAskillJustice Secretary MacAskill is blamed by legal insiders for allowing the SLCC to fall victim to Law Society bullying. Many insiders blame the Commission’s problems on Justice Secretary Kenny MacAskill, for taking a back seat while the Commission was being formed, and allowing the Law Society to run the appointments process to the Commission, which has been widely condemned as “full of sleaze” by many consumer groups & law reform campaigners.

Current conditions in the workplace at the Scottish Legal Complaints Commission seem to have deteriorated so much that some members of staff have indicated they feel so ashamed of news reports & public criticism of the Commission, they now feel they cannot admit even to their friends to working at the SLCC, for fear of being told they “are employed at a front organisation set up to protect the legal profession more so than deal with complaints from members of the public.”

John SwinneyCabinet Chief John Swinney, ‘deeply angered’ by difficulties at SLCC. Mr Swinney, while continuing to watch developments, refused to comment on the further difficulties at the embattled Scottish Legal Complaints Commission. However sources close to the Cabinet Secretary admitted Mr Swinney was deeply angered at the way the Commission was handling its role as the independent regulator of complaints against Scotland legal profession which it was assigned in legislation Mr Swinney himself as an MSP campaigned hard to be passed into law as the Legal Profession & Legal Aid (Scotland) Act 2007.

A source close to Mr Swinney this afternoon said : “John has worked so hard on this problem to see much of his effort twisted around by the Law Society and incompetence from others in Government who are responsible for protecting the public interest and seeing to it what was billed as a clean up of the legal profession’s poor complaints handling process became reality.”

“As the situation goes, there has been no clean up of anything and the SLCC in its current format is widely recognised as being unfit for purpose.”

I think we all feel that way … and certainly there now has to be some reforms of the Scottish Legal Complaints Commission to bring it closer to the public & consumers of legal services, while being more accountable & transparent in its operation. Ultimately, the SLCC will most probably needed to be regulated itself.

 

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