Scottish Executive fails to block FOI disclosure on records of restricted access to Courts

Despite giving us the Legal Profession & Legal Aid (Scotland) Bill, which brings independent regulation to Scotland's entirely corrupt legal profession, the Scottish Executive put up a fight against an FOI request made by Mr Bill Alexander for the release of correspondence & material surrounding the failure to enact parts of legislation sitting on the statute books which would have opened up the courts to those other than solicitors & clients.

The Executive duly thought the release of such information, was an appalling idea .. appalling, since the material in question, being correspondence between Ministers, elements of the legal profession, and the governing body of Scottish lawyers - the Law Society of Scotland, could give the impression to everyone, that there was a collusion going on for years between the Executive & the lawyers to keep everyone else out of court and maintain a monopoly on legal services - which is in fact, what happened.

If it had been a member of the public trying to get legal representation to break loose a disclosure of papers relating to the restriction of legal markets, they wouldn't even have been able to secure legal representation - so Mr Alexander, the Herald newspaper, and the rest of us are lucky Mr Dunion was there to do it for us.

No such difficulty for the Scottish Executive though - the legal profession provided their best to defeat the FOI disclosure request (at top fees too no doubt), but m'luds felt a bit honest yesterday and found in favour, again, of FOI.

I wonder how much Richard Keen & his team cost the Executive for this ?

I covered the start of Bill Alexander's case here : Scottish Executive thought to be blameworthy for allowing restrictive practices in legal service

Bill Alexander also has a related petition into the Scottish Parliament, which can be viewed at this link : Petition PE1021

Petition by Bill Alexander calling for the Scottish Parliament to investigate (i) the availability of solicitors prepared to act against other solicitors in cases of negligence or inadequate service; (ii) the role of the Law Society in such cases; and (iii) the impact, both physical and financial, of such cases on the complainer.

Rumours seem to indicate today, the legal profession demanded the Scottish Executive fight the case, as the lads at Drumsheugh Gardens, and those over at the Faculty of Advocates, definitely did not want any evidence revealed which may indicate a legal profession stitch up over legal services & restriction of business markets.

A well placed source who contacted me earlier this morning, informed me the Law Society had also tried to insist any correspondence from itself to the Executive should be exempt from the FOI request, as the Law Society of Scotland has an exemption from FOI !

I doubt Kevin Dunion, the FOI Commissioner will be having anything of that one though .. but only time will tell on what is published ... and if there is anything missing in the trail of correspondence, ministerial meetings with the bosses & leading [crooks] lights of the legal profession .. I'm sure it will be down to some politicians & leading crooks of the legal profession getting together to protect their own fiddles of the law.

There seems to be no doubt then, the present Scottish Executive, and it's previous incarnation, the Scottish Office, colluded with the legal profession to form an unofficial policy of restricting access to the courts & maintaining the monopoly of rights to legal representation by forcing the public to use members of the Law Society of Scotland & Faculty of Advocates.

More importantly though, as can be seen by Mr Alexander's petition to the Scottish Parliament, there is also little doubt among critics & campaigners against the decades of injustice practiced by the Law Society against members of the public, that the Executive has assisted the Law Society's clearly prejudicial policy of obstructing & denying legal representation to any client trying to raise a claim of negligence against a Scottish solicitor.

Maybe we should be asking which politicians got cheap deals on house & land purchases & other legal services, for keeping these laws from being enacted ... I'm sure there are a few trees to be shaken on that one .. all things being corrupt, that is.

Just a quick word on my recent articles.

My take on the exposure of the legal aid strike by lawyers as being fake got me in a wee bit of bother. I'm talking about this article : Lawyers protests over low legal aid fees revealed to be fake as Law Society's own research points to increase

Apparently, the Law Society are "looking for me to give me a good seeing to" .. Well, I've heard nothing yet, but if any threatening letter comes in, of course, I will publish it .. and if there's any polonium in my sushi, I will be calling the Met !

Similarly, Marsh & the Royal & Sun Alliance PLC are a wee bit upset over my comments on the Master Insurance Policy of the Law Society, and my exposure of their vast web of insurance relationships with the professions, which I wrote about here : Corrupt Insurers of the Scottish legal profession linked to Scottish Executive

Again, if the threatening letter arrives, I will publish of course .. but I can't see how there can be any denials .. after all, what I wrote is all true .. and there's quite a bit more scandal to go with it !

Anyway, read on for today's Herald report on Mr Alexander's FOI case - and remember to support Petition PE1021 at the Scottish Parliament.

I have my own petition also going in over some related matters .. which I will report to you in due course.

http://www.theherald.co.uk/politics/news/display.var.1142179.0.0.php

Court ruling triumph for FOI
PAUL ROGERSON, City Editor January 24 2007

The Scottish Executive has failed with a landmark bid to block the release of highly sensitive documents explaining why Scotland's "closed shop" for legal services has never been opened up to competition.

A Court of Session ruling yesterday should force the disclosure of correspondence on the subject between senior politicians, lawyers and officials.

They include the late First Minister Donald Dewar, Deputy Prime Minister John Prescott and former Lord Chancellor, Lord Irvine of Lairg.

In a 26-page ruling, the Lord President, Lord Hamilton, together with Lord Nimmo Smith and Sir David Edward, dismissed the executive's arguments that certain documents were exempted from disclosure under the freedom of information legislation.

They made the same ruling in a second case in which the executive refused to disclose documents, requested by The Herald, concerning plans to dump waste in a protected Scottish quarry.

Both cases are a triumph for the Scottish information commissioner Kevin Dunion, who had ordered ministers to publish the documents.

Mr Dunion welcomed the decision, saying: "This is an important judgment in my favour. The court has agreed it was wrong of the executive to conclude that it would be harmful to release information which it characterised as belonging to a class or type - for example, advice to ministers - without regard to the content of that information. I have consistently maintained this is not what parliament intended."

The decision is also a victory for Bill Alexander, a longstanding campaigner for wider consumer access to legal services. Last year, Mr Alexander used freedom of information legislation to seek disclosure of ministerial correspondence and memoranda from the past decade concerning the enduring ban on people other than solicitors and advocates being paid to represent clients in the Scottish courts.

"I am pleased the law has been clarified. Hopefully, everyone can now move forward in getting greater access to justice for the people of Scotland," he said.

Here's the shorter Scotsman version .. with a little debate going ...

http://thescotsman.scotsman.com/politics.cfm?id=121772007

Court defeats for ministers

SCOTTISH ministers yesterday failed in the country's highest court to prevent the release of documents which had been sought under the Freedom of Information Act.

In two cases heard in the Court of Session, rulings against ministers by Kevin Dunion, the Scottish Information Commissioner, were upheld.

The cases involved information on why legislation passed in 1990, designed to promote competition in the provision of legal services, had not been brought into effect, and why ministers had decided in 2004 not to "call in" a planning application for a waste disposal and ecological conservation area at Treane Quarry, north Ayrshire.

... and here is the Press Release from the Scottish FOI Commissioner,

http://www.itspublicknowledge.info/resources/media/pressreleases/pressrelease25.htm

News Release: 24 January 2007

Commissioner welcomes Court ruling in landmark freedom of information case

The Scottish Information Commissioner today (24 January 2007) welcomed a landmark Court of Session ruling which upheld his decisions in relation to two appeals brought by the Scottish Executive under the Freedom of Information (Scotland) Act 2002 (FOISA).

The ruling concerned two separate decisions issued by the Commissioner, in which he found that the Executive had acted incorrectly in withholding specific information from release. One case involved documents concerning legislation passed over 15 years ago, part of which the Executive had still not carried into effect in Scotland. Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, if implemented, would allow professionals, other than advocates and solicitors, rights to conduct litigation on behalf of members of the public, as well as rights of audience in the courts.

In bringing its appeals to the Court, the Executive argued that the Commissioner had wrongly interpreted FOISA when considering the content of withheld documents on an individual basis. The Executive argued that certain types, or “classes”, of documents should automatically fall within the scope of particular FOISA exemptions.

Following its consideration of the case, the Court rejected the arguments put forward by the Executive. In reaching this conclusion, the Court described the “class” arguments put forward by the Executive as “ill-founded”, and concluded that the Commissioner’s methodology of considering the specific content of individual documents, and the potential impact of release, was correct and appropriate. A number of other criticisms made by the Executive were also rejected by the court. As a result, the Court refused both of the Executive’s appeals.

Kevin Dunion, the Scottish Information Commissioner, said:

“This is an important judgement in my favour. The Court has agreed that it was wrong of the Executive to conclude that it would be harmful to release information which it characterised as belonging to a class or type, e.g. advice to Ministers, without regard to the content of that information. I have consistently maintained this is not what Parliament intended and is not what the Freedom of Information (Scotland) Act allows. In my view, the effect of the release of such information can only be gauged by considering the content. I am pleased that the judgement clearly supports my position.”

The Commissioner added:

“At the heart of these cases is whether the public is given access to information which allows them to understand why decisions have been arrived at. With regard to the Law Reform Act, I took the view that a democratic society is entitled to expect that legislation passed by its elected representatives in Parliament will be brought into force unless there are good reasons for not doing so, and citizens are entitled to know those reasons unless there is a greater public interest in keeping them secret.”

Ends

For further information contact Claire Sigsworth or Paul Mutch on 01334 464610, out of hours, 07976 511752

Notes to Editors:

Court of Session Opinion

• The Court of Session heard the appeals in December 2006.
  
• The Opinion of the Court was issued on 23 January 2007 .
  
• The Opinion of the Court of Session on this case is available to view online here: www.scotcourts.gov.uk/opinions/2007CSIH08.html

Commissioner's Decisions

The Commissioner's Decisions to which the Court of Session's Opinion relates are:

Decision 057/2005 – Mr William Alexander and the Scottish Executive

• Mr Alexander requested information relating to the commencement of sections 25 to 29 of the Law Reform (Miscellaneous Provisions) ( Scotland ) Act 1990. Sections 25 to 29 of this Act, which have yet to be implemented, set out arrangements which would ensure greater competition in the provision of legal services in Scotland .

• The Scottish Executive refused the request, arguing that most of the information either related to the formulation of policy or would prejudice the effective conduct of public affairs, and was therefore exempt from release under FOISA.

• The Commissioner found, following consideration of the content of each document, that, while much of the information did indeed fall within the scope of an exemption, other information did not, and should therefore be released. The Commissioner also found that some information, while falling within the scope of an exemption, should be released in the public interest.

• The full text of Decision 057/2005 can be viewed online here: www.itspublicknowledge.info/appealsdecisions/decisions/Documents/decision057.htm

Decision 060/2005 – Mr David Elstone / Mr Martin Williams of the Sunday Herald and the Scottish Executive

• Mr Elstone and Mr Williams separately made similar requests for documentation relating to a decision taken by the Scottish Ministers not to “call in” a planning application for Trearne Quarry, North Ayrshire. If “called in”, North Ayrshire Council would have been required to refer the application to the Scottish Ministers for decision.

• The Scottish Executive refused both of these requests, arguing that release would prejudice the effective conduction of public affairs.

• Given the similarity of the cases, the Commissioner issued a single Decision which addressed both requests. The Commissioner found, following the consideration of individual documents, that while some had been withheld correctly, others did not fall within the scope of any exemption and were appropriate for release.

• The full text of Decision 060/2005 can be found online here:

http://www.itspublicknowledge.info/appealsdecisions/decisions/Documents/decision060.htm

The Freedom of Information (Scotland) Act 2002

• The Freedom of Information (Scotland) Act 2002 (FOISA) provides a statutory right of access to all information held by Scottish public authorities. This right came into effect on 1 January 2005.
• Around 10,000 public authorities in Scotland are covered by FOISA. They include the Scottish Parliament and Executive, police forces, the NHS, local authorities, education institutions, and publicly owned companies.
• Information can only be withheld by a public authority if it falls under one of the exemptions listed in FOISA. If an individual believes an authority is wrong to withhold information, they ultimately have a right of appeal to the Scottish Information Commissioner, who can require release.
• The parties to any case have the right to appeal against the Commissioner’s decision to the Court of Session on a point of law only.

The Scottish Information Commissioner

• Kevin Dunion the Scottish Information Commissioner is a fully independent public official, appointed by the Queen on the nomination of the Scottish Parliament.
• His duties and powers are to ensure that people get the information from Scottish public authorities to which they are entitled.
• His role actively promotes and enforces compliance with FOISA.