Thursday, April 12, 2007

Former Lord Advocate Andrew Hardie revealed as major obstacle in removing lawyer-advocate monopoly on legal representation

Scotland's former Lord Advocate, Andrew Hardie QC, has been revealed as one of the chief obstacles in opening up the long standing solicitor & advocate monopoly on the public's wider access to legal representation and the courts.

You can download the Scottish Executive's FOI Law Reform Disclosure on their failure to open up the public's access to legal representation HERE (pdf format)

In an amazing hardline veto of reforms which would have opened up choice of legal representation to the public, the Lord Advocate stamped his outright hostility to implementing sections 25-29 of the Law Reform Misc Provisions Act 1990, which have come to light in an email from his Private Secretary reprinted here :

Lord Advocate Andrew Hardie on  courtroom reforms - Page 19 of FOI response


The Lord Advocate has seen your Minute of 13 June, and said that he does not think that work should commence on implicating Sections 25-29 for the following reasons:

( 1) Other reforms have not had time to bed down (para 16).The Lord Advocate understands that the effect of the introduction of Solicitor-Advocates is being evaluated.

(2) There is little interest in Scotland having these provisions available (para 17). The ONLY interest has been from the Institute of Commercial Litigators, which body was rejected by the Lord Chancellors Advisory Committee.

(3) There is no obvious benefit from implementing Sections 25-29 (para 18).

(4) The provisions will involve considerable preparatory work by the Secretary of State and the Lord President - both of whom have more important concerns.

(5) There is no pressure for implementation

The Lord Advocate advises delaying all work and if no relevant interest appears within the next year, consideration should be given to repealing these provisions.

RAHAT NAWAZ Private Secretary CROWN OFFICE 24 June 1997

The Lord Advocate must have really had it in for people who couldn't get access to the courts or even secure the services of a lawyer, because the Executive - and particularly the Lord Advocate's Crown Office knew full well - for years, the problems reported to them by the public, elected politicians and civil servants, not to mention consumer organisations such as the Scottish Consumer Council, that there was a severe problem in the Civil Courts system in Scotland where swathes of people simply couldn't get access to the courts, or even obtain the services of a solicitor to handle necessary and important cases - unsurprisingly, including such cases as ... suing lawyers for negligence and handling other legal issues directly involving or against the legal profession itself....

So, the question is, was Andrew Hardie standing up for his colleagues in the legal profession, ensuring their valuable commercial monopoly over access to the Courts would continue ?

You can make a conclusion for yourselves based on the content of the above email alone .. but I say - Yes, the Lord Advocate, and indeed, the Scottish Executive were standing up for protectionism and commercial monopoly, with probably a helping hand from the legal profession to keep their profits & monopoly over legal representation.

Why do I say that ?

Simple. Andrew Hardie and everyone else, from 1990 onwards when the Law Reform Misc Provisions Act 1990 was introduced - and that includes the former Tory Government & Scottish Office prior to 1997, knew there was a huge public outcry for opening access to the courts because the cosy deal between the legal profession & the then Scottish Office, continued on to the Scottish Executive was effectively restricting the rights of the public to get into court in the first place - even having the effect of restricting the availability of legal representation - because lawyers and advocates could, and still do, select the cases they want to appear in court - and kill off the ones they don't like - or those which would be a major thorn in the side of the legal profession or the law in general.

Actually, as you can see, the Lord Advocate went much further than recommending a delay in the implementation of Sections 25-29 ... he actually sought the repeal of these sections of the Law Reform (Misc Provisions) Act on reasoning and motives mentioned in the email, one could question as perfidious.

Of course, not everyone thought like the Lord Advocate .. and there were actually recommendations from the Justice Division of the Scottish Executive to begin work on implementing Sections 25-29 of the Law Reform (Misc Provision) Act 1990, to allow a wider choice of legal representation ... shown here in report from Mrs Brennan of the Scottish Executive.

Brannan Letter June 1997 page 1Brannan Letter June 1997 page 2Brannan Letter June 1997 page 3Brannan Letter June 1997 page 4Brannan Letter June 1997 page 5

However, it wasn't just some officials in the Scottish Executive who agreed there should be a wider public choice of legal representation & access to the courts, as you can see from the following letter from the Director General of the Office of Fair Trading, John Vickers who took the exact opposite view of the then Lord Advocate Andrew Hardie - who would rather have had those parts of law repealed, which would have allowed wider available legal representation to the public.

OFT support for Sections 25-29 march 2003 Page 1OFT support for Sections 25-29 march 2003 Page 2

Director General of the OFT, Mr John Vickers welcomes the implementation of Sections 25-29 of the Law Reform Misc Provisions Act 1990 - bringing a wider choice of access to legal representation and the courts, because as we can see - this is actually the case already in England - so, why keep Scotland in the dark ages again and maintain such monopolistic restrictions on the public's right of access to legal representation when those in England & Wales can secure the services of those other than solicitors & advocates for their legal work ?

Simply for the benefit of the Scottish legal profession's pocket perhaps ? Many feel this to be the case, and all that I have experienced to this date with regard to matters involving the legal profession in Scotland, tells me so. After all - it's all about money, isn't it ? and who gets it and who is allowed access to legal representation and what cases are actually allowed by the legal profession into court.

The remainder of the published disclosure reads as a rather indecisive position from the Scottish Executive, but one could ask - where are all the minutes of correspondence with the Law Society of Scotland and members of the legal profession who had an interest in leaving out implementation of Sections 25-29 ?

There are allegations such meetings did take place .. and such correspondence relating to & involving the views of the legal professions, did exist ... but curiously, none of this material has surfaced in the published disclosure, leading one to believe as many expected, the worst offending information would be withheld from public view.

You may question my comment on that, but inevitably, when the Scottish Executive discuss legal issues or legislation, the opinion of the Law Society of Scotland, or indeed, Law Society officials who work for the Scottish Executive as consultants is usually sought ... and in such a case as reforming access to legal representation and the courts, it is very difficult to believe the Executive, and Scottish Office before it, did not discuss, or meet with representatives of the legal profession to discuss these reforms .. which have of course been held back, many would say, on the orders of the legal profession itself.

Noticeably also in the published disclosure on this matter, is the lack of any documentation pre 1997 .. and I would have to take personal issue with that one myself, as a recent disclosure to me from the Executive included many documents which had accumulated many years before 1997, when the Scottish Office still existed.

Personally I would have to wonder why such documentation which would inevitably identify conservative politicians of the pre 1997 Government, and possibly members of the legal profession themselves, have been withheld, since Labour usually enjoy blaming the former Tory Government for just about everything under the sun .... suspicions abound then but my conclusion is this is not an honest disclosure, and I leave you all to make your own conclusions as to the honesty of what has been published.

Finally, there is an interesting remark contained in one of the documents which should give us all food for thought : "As there is an inherent awkwardness in decisions by government ministers not to commence legislative provisions enacted by parliament" .. a sobering thought for us all to keep in our minds .... with tales of awkward Ministers, and perhaps even awkward Lord Advocates ... is it not time to remedy the sins of the past and give the public a decent, transparent, honest and independently regulated legal profession ?


Poirot said...

Good thing you got the right Lord Advocate this time.

What I said before stands - although you probably gave them a laugh at the Executive.

Anonymous said...

Got your email
LOL yes you are forgiven !

Peter Cherbi said...


Yes, apologies to Colin Boyd then, but he didn't do anything to help the situation, did he, and after speaking to a journalist today on this, he was in no doubt a lot of info has been beld back by the Executive in this 'FOI disclosure" - also pointed out there wasn't even a release from Kevin Dunion on the demise of the appeal or the actual release, which is all very murky.

Lord Andrew Hardie now sits on the bench at the High Court of course, while the remainder of his chums in the legal profession dictate which cases can actually get into those courts. He also sits on the Privy Council :

Anonymous said...

Well if this is coming down to a debate on Hardie, how come his name doesnt even appear on that letter from his private secretary ?

I think someone has been through these papers with soap & water to clean them up of any unwanted mentions or names.

Anonymous said...

they all protect each other so no surprise no one else is allowed into court except lawyers and advocates

rab/i really should be in bed said...

Hardie was either very careful to keep his name off that letter to Mrs Brennan, or the Executive have changed it for publishing in foi.
Either way you nailed him on it so good work.

Back to the Hootsmon then, dear sir ?

Peter Cherbi said...

# rab

Thats a good point, and matches up with a quick chat I had today with a reporter who said the papers probably wouldnt touch it as it involves a serving Judge.

Also looks like the opposition parties wont make anything of it either, even stranger but at least it reveals one of the strongest obstacles to those legal reforms that Bill Alexander has been shouting about for so long in Sections 25-29 of the Law Reform Misc Provisions Act 1990.

If a Lord Advocate didn't want it - even floating the idea of repeal, and is now a serving Judge in the Court of Session, then what chance would such legislation ever really have ?

Anonymous said...

really disgusting all of this A Lord Advocate now a Judge wants to stop anyone except lawyers and their pals access to the courts and the scotsman and all wont do the story really sick stuff scotlands turned into really sick and you all want independence what a fucking joke it will be you cant even look after your public and stop those leeches leeching some more

Stuart/Edinburgh said...

Im with everyone else on this and agree the publication from the executive looks fake.

Too much missed out if you are to be believed, and I believe you after reading some of the stuff here.

Anonymous said...

So whats Hardie got to say for himself then ?
Anyone bothered asking him yet or are judges too above the rest of us to speak ?

Ed said...

shame youre not standing at the election peter, all your effort might have put you in with a good chance

Anonymous said...



Anonymous said...

lol glad to see you got it right this time! but Peter, Hardie's view on keeping everyone else out of court except lawyers and faculty members has been known in legal circles for a long time.Follow the trail back to your enemies at the Law Society to find out why 25-29 has been blocked dot dot dot

Anonymous said...

Maybe the judges demanded that hardies name be removed from that letter ?

Its still a big scandal but there are so many scandals with the lawyers these days I lose count

Anonymous said...

Amazing story but it looks like your scottish newspapers are too chicken to run it.

Think this will change after independency? I don't

Anonymous said...

Who is this Bill Alexander who made the FOI ? Whats he got to say for himself now ?

Archie said...


took a run down to Jedburgh today to see your old place.

Thats some scum around that Bongate now, dont know how you stood it so long mate ! its worse than Craigmillar & Nidrie added together

Peter Cherbi said...

I'm beginning to think there's more to that email from Hardie's "Private Secretary" than meets the eye ... anyway thanks for the comments everyone and some good points that people higher up the chain than me seem to agree with.

Correct. The email is 10 years old, and it's hard to imagine no one outside the Scottish Executive knew of the content during all that time - and said nothing about it.

#anonymous @8.13pm
Bill Alexander may or may not be applying for a license to practice. I Know nothing more than that nor if he has made further comment on this matter.

Hope you had a good washup after visiting Jed. Nasty wee place you know, Archie ...and I think craigmillar would appear like a convent compared with parts of Jed !

Anonymous said...

so alexander is applying to be a lawyer or what ?

whole thing feels very odd to me.
the executive refuses the foi then defends against it then releases this info which is obviously sanitised or is this the way the law society wanted it all along ?