Sunday, December 09, 2007

Scotland fights political interests for wider access, choice of legal services over protectionism of lawyers monopoly

Some readers were concerned enough over my last article on Bill Aitken's comments in the legal services debate, to raise the issues with Annabel Goldie and the Presiding Officer of the Scottish Parliament. I will report here any developments I learn on such representations.

You can read that previous article here :

Conflict of Interest : Replacement called for Holyrood Justice Convener Aitken, too close to legal business interests for public good

Some readers also asked me if there were other conflicts of interest which may be affecting Mr Aitken in his policy of supporting the lawyers long held monopoly on legal services.

Well, I can tell you that Bill Aitken used to work for Eagle Star Insurance, who were the first insurers to the Master Policy Insurance of the Law Society of Scotland, and as you will probably gather, Mr Aitken's previous work may well be powering ahead his current love & praise of the Law Society and its officials, who wish to retain the lawyers monopoly on access to justice.

Mr Aitken's profile :

Bill Aitken was born on the 15 th April 1947 and educated at Allan Glen's School in Glasgow. From 1965 until 1999 he worked in the Insurance Industry as an insurance undewriter and sales developerfor Eagle Star and AGF Insurance. He was also a District Court Judge from 1985 until 2000. In 1993 he was appointed Deputy Lord Lieutenant of the City of Glasgow. He is single.

Coming from a long background in the insurance industry, Mr Aitken willl know full well & understand, the insurance industry are one of the principle financial beneficiaries of maintaining the Law Society of Scotland's monopoly on legal services in Scotland as anyone who works in legal services must pay into the Master Insurance Policy of the Law Society of Scotland - otherwise they don't work.

Indeed, one of the restrictions placed on applications under the recently implemented Sections 25-29 of the Law Reform Act 1990 into the legal services market, is that applicants have indemnity insurance, which in practice must pay into the Master Insurance Policy of the Law Society of Scotland, now operated by Marsh UK.

A cosy arrangement, considering such applications must be passed by both the Lord President, and the Justice Secretary, who have in their careers, also paid into the Master Insurance Policy of the Law Society of Scotland and benefited financially from the closed shop of legal services maintained by the Law Society and the insurance industry ...

It might have been better if Mr Aitken had declared such an interest along those lines, before making as much parliamentary praise as he gave for Law Society officials who last year threatened legal action against the Parliament over the passage of the LPLA Bill, or making such public protests at the possibility that Scots may be able to choose who they want to represent their legal affairs, not who the legal profession order them to choose.

Anyway, I await a reply from Annabel Goldie as to whether she will see fit to apply the same high standards impartiality she respectfully applied to herself last year when she resigned from the Justice 2 Committee so that J2 could be seen to have a more impartial Convener for the debate on the LPLA Bill. I will cover any reply in a further article.

Scotland differs from England & Wales when it comes to access to justice, because for now at least, the Scottish National Party do not support the full implementation of choice and free competition in the legal services market.

For now anyone who needs to get to court, or use critical legal services, must go through a member of the Law Society of Scotland. You simply have no other choice. There is no one currently allowed other than solicitors or advocates to perform such courtroom representation for you. Similarly, many everyday legal services which you may require at some point in your life also require the use of a solicitor. You simply cannot get away from it ... currently to use legal services in Scotland, the ones you need - you must use a solicitor.

All political parties are aware of this. Indeed all the major political parties in Scotland, have lawyers or ex-lawyers in prominent positions within their parties, many of whom benefited financially from the decades old monopoly on legal services their profession holds over the public's use of law in Scotland.

Kenny MacAskill MSP for instance, now an 'ex-lawyer', only came into politics in 1999, worked as a solicitor and senior partner in an Edinburgh law firm from 1984 until 2000.

Mr MacAskill, as a solicitor for some sixteen years, therefore knows full well the Law Society of Scotland's monopoly on access to legal services which dictates who can & cannot obtain legal representation, and who is allowed, or is denied, access to justice.

It would be true to say, Mr MacAskill, like other currently practicing lawyer or 'ex-lawyer' MSPs in the Scottish Parliament, such as Annabel Goldie, David McLetchie, Nicola Sturgeon, and many more, have all benefited financially from the Law Society of Scotland's closed shop on access to legal services, and the failure of successive Scottish administrations since 1990 to implement the Law Reform (Misc Provisions) Act (Scotland) 1990, specifically Sections 25-29, which were designed to open up legal services in Scotland to wider competition & choice for the consumer.

What did any of those currently practicing lawyers or ex-lawyers who are MSPs say about the failure of successive administrations to implement the 1990 legislation on widening choice of legal services ?

Nothing. Nothing at all. Not a peep from anyone.

It simply was not in Mr MacAskill's, Ms Goldie's, Mr McLetchie's, Ms Sturgeon's, or any of the other lawyer or 'ex-lawyer' politicians financial interests, and more importantly the interests of the Law Society of Scotland & the legal profession for any of them to say anything about it, or do anything about it and that is why it has taken seventeen years to implement Sections 25-29 to allow persons other than those who are members of the Law Society of Scotland to apply for rights of audience.

Of course, we all know now that Sections 25-29 were implemented in March of this year, so naturally, we should be seeing a crop of new entries into the legal services market, able to take up the public's demand for choice, competitive pricing and well regulated standards of wider legal services but that has not happened, due to the restrictive, protectionist policy which surrounds the current Justice Secretarie's view of the implementation of the seventeen year old legal market competition legislation.

An excerpt from Kenny MacAskill's letter to cabinet colleague John Swinney, which was featured in the Herald last week :

Kenny MacAskill to John Swinney 26 July 2007 Sections 25-29 implementationYou [John Swinney] will be interested to know that the commencement of Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 came into effect on 19 March 2007. The Sections provide for rights of audience and rights to conduct litigation in the Supreme Courts to be granted to members of professional or other bodies, subject to approval in each case of a draft scheme embodying certain safeguards such as training programmes and indemnity insurance. The legislation does not provide for applications from individuals. Guidance has been prepared that covers in some detail the provisions to be contained in draft schemes and the consideration of applications. I hope this reassures you that action has now been taken to increase consumer voice in the supply of legal service providers.

So, that sounds straight forward enough. The impression is given it is fairly easy for someone, albeit a member of a professional or "other body subject to approval in each case of a draft scheme embodying certain safeguards such as training programmes and indemnity insurance" can apply under Sections 25-29 to enter the legal services market, and represent the public in court.

Well, this is not the case at all, and all applications which have been made under Sections 25-29, have so far failed, because, the Law Society of Scotland wants to retain its control and monopoly on the legal services market, who is allowed to enter it, and who is allowed to offer wider choice and competition for the public in their choice of legal representative.

It's natural. The Law Society don't want anyone else to be allowed to enter the legal services market, because if there is wider choice, the Law Society's own member solicitors will lose out.

Wider choice of legal services means not having to pay the likes of £150+VAT for 3 lines of text on an A4 'lawyers letter' or £60+VAT for a single email reply from your lawyer ... because of course, wider choice will bring entrants in to the legal services market who wont be charging those kinds of fees.

How about all those expensive wills, conveyancing, poorly performed court work & case preparation, bad financial advice, and many other poor services clients get from lawyers, who have even gotten away with mortgage mis-selling because the Law Society of Scotland let them off the hook ?

Well, all that would be a thing of the past if the legal services market were opened up properly, to the standard of the recent OFT recommendations for wider access to legal services. Increased competition, the entry to the legal services market of firms willing to offer expert legal services at competitive prices, and crucially, a fully independent legal services regulator (not the Law Society of Scotland) with strong powers to ensure the highest standards of practice in the opened legal services market, would give the Scottish public the rights of access to justice, access to legal services, and unrestricted choice, which we deserve in Scotland.

To be fair, Kenny MacAskill wants to open up the legal services market in Scotland, but he doesn't want to open it up very much, and it is difficult to ascertain Mr MacAskill's current view on wider choice of legal services, because he changes his view so much, from press reports on a 'Scottish solution', to parliamentary debates, to misleading letters to cabinet colleagues

The SNP did not implement Sections 25-29. The previous Scottish Executive did that, albeit a bit too late in the day after some eight years of rule.

If anyone asked me now whether I think the SNP would have implemented Sections 25-29 if they had not been implemented by the previous administration, I would say - No, the SNP would not have implemented Sections 25-29 of the Law Reform (Misc Provisions) (Scotland) Act 1990.

If anyone asked me now whether I think the SNP would have passed the Legal Profession & Legal Aid (Scotland) Act 2007, I would say - No. On the basis of the available evidence and conduct of the SNP in the legal services debate, an SNP administration would not have passed the Legal Profession & Legal Aid (Scotland) Act 2007.

Some members of the Scottish National Party appear not to want the Scottish public to have free choice of quality & well regulated legal services, and those elements of the SNP who do not want to give full choice to the Scottish public, have supporters in their cause - the Scottish Conservatives.

The Scottish Conservatives do not want to break the Law Society of Scotland's monopoly on access to justice. Members of the Scottish Conservative party have openly protested in the media against breaking the lawyers control over legal services, and have made the same protectionist statements in the Scottish Parliament.

Strange, the Conservatives would wish to maintain a business monopoly, when successive Conservative Westminster administrations have broken up long established monopolies & sold them off to the public, promoting wider competition and public choice in those business sectors.

The legal services sector however, is a different matter, and the Conservatives wish to protect the legal profession's monopoly on access to justice, principally, because of the financial and political influence the legal profession hold in public life today.

For an industry such as the legal profession to be allowed to order you, the public, to take what you are offered as a legal representative, and be forced to pay the prices the legal profession itself dictates to you, is anti competitive, monopolistic, and dishonest.

For an industry such as the legal profession, to be allowed to regulate itself, ensuring that there is no proper investigation of complaints, no transparency or independent regulation, no accountability, no compensation, no chance of recovery, no chance of making a claim, no chance of outside help, when you receive substandard legal services, or incur huge financial losses through the negligence of one of its members, that is an industry 'unfit for purpose', regulated by itself in the common practice of utmost prejudice against the public.

Kenny MacAskill and Bill Aitken's support of such a monopoly is not good for Scotland, and not good for the public's right to choice in access to legal services & justice.

Kenny MacAskill once said in the Scotsman in February 2006 : "There are good reasons for having a monopoly-regulated profession; otherwise, how do you regulate those not part of the organisation?"

The Law Society of Scotland, and it's self regulation of solicitors, is no model for regulation, or a nation to follow with any degree of confidence ...

The Law Society of Scotland has done a good job of ensuring that clients receive no proper regulation when making a complaint or a claim for damaging losses at the hands of negligent, crooked or incompetent solicitors.

That is no good excuse or reason to maintain such a monopoly, based upon such a poor regulatory model, Mr MacAskill, and is surely not a safe basis for the position of Justice Secretary to support maintaining such a monopoly ...

Wider choice of legal services means a break from the past, a break from high fees for poor legal services, a chance for better, independent regulation, a chance to break political influence in politics which has purposely delayed public interest legislation for decades, a chance of transparency, a chance of honesty & accountability, a chance of better standards, and a chance for anyone to obtain access to justice and legal services outwith the dictates of the legal profession itself.

Give Scotland its right - Give Scotland wider choice, better independent regulation and higher standards of legal services the public can trust, use, and rely upon.


Anonymous said...

When you put it like that,we definitely need more free choice in who does our legal work

Good one again Peter.

ashley said...

William Wallace needs to rise again and cut all these crooked lawyers to shreds !

Anonymous said...

I can always rely on getting a good read here about bent lawyers and you dont disappoint today Mr Cherbi.

I think there are too many lawyers in the SNP for any serious legal reform - as you say its just not in their own selfish kickback style interest to do anything for the likes of those who suffer.

Maybe you should check some of them out.If Kenny MacAskill, Nicola 'the Nick" Sturgeon and friends have been lawyers for that long they are bound to have some scandals just begging to be outed.

Good luck and keep up the good work.

Anonymous said...

A very good analysis of the situation Mr Cherbi.I wonder if words have been exchanged between MacAskill and Swinney over that letter.

I have no doubt that if you were writing in a newspaper they would have to shut you up because you are just spot on every time.

Good work as always

Anonymous said...

I have complaints against 2 firms of lawyers which let me down over a claim against an estate agent who sold our house for 60k less than their own valuation to a lawyer who was preventing other bids being accepted. Each firm said before they took the case they had no connection to the estate agents but it turned out on both occasions they had very much been doing a lot of business with that estate agent.The Law Society have done nothing with my complaints claiming they cant look into it as Im taking legal action but Im not taking legal actionas I cant get a lawyer now to do anything and have lost over 20k in legal fees all for nothing and the law society knows it

after reading your stuff on macaskill and the scottish executive i phoned their justice department to ask about writing to macaskill and the girl i spoke to said he was a nasty piece of work and hated anyone who complain against a lawyer so it was no use even bothering to write.I really need help with this and wonder if you could tell me the name of a lawyer if there is one able to help but probably the law socieyty have said to all lawyers not to take the case now

frankly speaking said...

Very good point about the Conservatives.

They spent the 1980s and 1990s selling off as much state owned companies as possible and 'allegedly' breaking up monopolies.Now its the turn of the lawyers but they don't want to do anything about that.Could it be the Tories get a lot of their funding from lawyers I wonder ? or is it the lawyers help them with their dirty schemes.

Anonymous said...

No one can get anywhere with these lawyers and their political friends.

Maybe its time we did something to get our own back and stop all this campaigning.

Action louder than words maybe

Anonymous said...

Totally unrelated to your post subject.I found an ombudsman's investigation into David Reid in yahoo images under your name.Very concerned as he was my lawyer when he worked at Morrisons and I have issues with instructions he failed to carry out which cost me an arm and a leg.

Is that case resolved and what happend if so?

Peter Cherbi said...

#Anonymous @ 3.30am

You could be right.

Also what you suggest is being looked into, but I will give way to the media to tackle those issues, in the interests of wider circulation ...

#Anonymous @ 2.51pm

That has already been tried, not just against me but a few journalists have had their careers threatened too ...

#Anonymous @ 4.17pm

Sounds like interesting complaints and I have received your email, will respond soon.

Please don't be put off writing to Mr MacAskill on the words of a member of staff (even if it does seem to be common talk). You could always write to his boss, and inform any other MSP in your area you are writing to Mr MacAskill on those particular issues ...

#Frankly Speaking @ 5.34pm

I completely agree with you.

#Anonymous @ 7.13pm

The case against David Reid came to no conclusion at all as I could not get a lawyer to represent me against him (lawyer will not sue a lawyer as usual)

Mr Reid, who thought he was doing me a good turn by taking a stress sickie to avoid answering his failures, then returning as a law accountant to audit solicitors charges to clients, has not done the decent thing and contacted me over his failures or put them right - what a surprise.

I'd be interested in the issues you have with his service to you, please email me at my contact address in my profile.

sleepless in stirling said...

I see what you are getting at Peter.Closed shop for the law and no one enters unless the law society says so.I'd say that is definitely a monopoly and needs to be ended.

Keep drawing attention to this kind of stuff because it looks like the papers are too bloody scared to !

Anonymous said...

Yes fears for fat wallets getting thinner and 4 houses on the side will put the wind up these thieving lawyers.No wonder they want to keep their monopoly.

break it up laddie and do us all a favour !

Anonymous said...

I agree with you on this one Peter.

It should be my right or anyone's right to choose who their legal representative is going to be and be able to shop around and get the best prices.

At the moment you cant do that because everyone in legal services is covered by the Law Society of Scotland and as you say, if you want to get to court, you need a lawyer and he can set his own charges backed up by the Law Society.

Even the Chinese could bring better competition into the market than what we have just now !

Peter Cherbi said...

#Anonymous @ 3.11pm

Thats it in a nutshell.

If everyone were to understand that and be able to get past the constant spin put out by the legal profession and some of their friends in Parliament that a monopoly is required to maintain regulation, then the public could have a much better choice of legal representatives, and the prices of those legal services would be a lot more competitive than they are now.

Not forgetting of course, a powerful independent regulator to ensure much higher standards of legal service than the Law Society of Scotland have ever been able to enforce ...

Donald Anderson, Edinburgh said...

I agree with the comment who said everyone has a right to choose who does their legal work etc

"It should be my right or anyone's right to choose who their legal representative is going to be and be able to shop around and get the best prices."

It shouldn't be for politicians to tell us who to use and pay through the nose for legal services.It should be our right of choice and there definitely should be a better regulator than the Law Society who are just there to protect their own lawyers and nothing else.

Anonymous said...

If you stick to your argument about independent strong regulation for open legal services markets you will win the day

Put it this way - there are plenty solicitors who would love to be rid of the profession's regulatory role.If you take that away from the Law Society, no one can accuse us of being prejudiced in regulating complaints.

Mr Aitken + MacAskill and the rest have it all wrong on that because they have Douglas Mill right up their arse too much.

Anonymous said...

your old house looks like it has problems lol !
Jedburgh House Plans Bongate

Anonymous said...

Kenny MacAskill liked the legal aid clients.he was always telling them to plead not guilty

Check it out !

Anonymous said...

Aitken's profile :

61 and single *wink wink*


Mary said...

I don't know how you manage all this Peter.You must be very knowledgeable about the legal profession and politics.You are correct every time with your reports.

Good luck for the future and I hope you get these changes you have campaigned for all this time to help others.A very selfless act and one well deserving of applause from everyone for all you have stood and been through.

Anonymous said...

Your arguments for opening the legal services market are much more persuasive than the Tesco Law crowd.

I think you have something here Mr Cherbi so keep writing.Changed minds will lead to a better legal services landscape.

Peter Cherbi said...

#Anonymous @ 12.29pm

I only wish to see access to justice for all, rather than the current model which is the Law Society of Scotland and it's membership holding the population to ransom on access to legal services & the courts.

An opened legal services market with a fully independent regulator which has strong powers of enforcement will provide everyone with clear unrestricted access to justice, and probably at a much cheaper cost than the current model.