Saturday, September 29, 2007

Law Society 'not acting in the public interest' as lawyers fight legal services market reforms

The news from yesterday's Law Society of Scotland "Public Interest" debate at the National Gallery in Scotland, is that lawyers will try to delay as long as possible the OFT's recommendations for opening the legal services market in Scotland.

The Law Society agreed to come up with it's own recommendations by February 2008, while the OFT expects a response from the Scottish Government by December 2007. Of course, the Law Society is used to doing things as it likes, so it will take longer. I hope the OFT call them to book on that one.

While the Law Society still determines the profession's policy towards such issues, well known divisions have emerged with some legal firms preparing for the inevitable when the current monopolistic legal services market, controlled by the Law Society of Scotland forcing the public to use a solicitor or advocate when requiring legal services or access to courts, is finally opened up to new competition.

I am of course, a supporter of opening the legal services market, but not for the aim of generating vast profits for new firms to come in and replace the legal profession in representing clients interests.

I am rather, a supporter of opening the legal services market to ensure that everyone, and I mean e-v-e-r-y-o-n-e, has access to justice and access to legal services, without prejudice, and without having to suffer the whim of the Law Society and lawyers deciding whether a particular individual should have such access to legal services & access to justice - as is presently the case.

There is a problem though, in this rush to open the legal services market, which I have been saying all along - that problem is one of regulation and maintaining quality, trustworthy, accountable and fully regulated legal services offered by the incoming firms to the legal services market.

This problem was highlighted yesterday by the in-house lawyers for the Law Society (wolves within wolves ?) and the Herald newspaper reports it as follows :

"This was evident during a question-and-answer session attended by Julia Clark of Which?, architect of the super-complaint. She was howled down with cries of "rubbish" when pressed by a representative of the society's in-house lawyers' group over precisely how banks and building societies offering legal services would be policed.

"You proposed this, you should have some sort of concept about how this will work," Clark was told."

Indeed yes, Which? and yes, the OFT too, do need to tackle the regulatory bull by the horns, and particularly the OFT, must come out of it's shell on regulation and recommend that a fully independent regulatory body be formed to police the new firms coming into the legal services market, rather than allowing the Law Society of Scotland to control or deal with new non-solicitor firms coming into the legal services sector, as it is currently campaigning for. To allow the latter to happen, would equal the disaster which has become the Scottish legal profession.

Why should the Law Society of Scotland, have any right to claim a foothold in regulating an opened legal services market, when its own failures and prejudice against clients and the public in general, have caused the harm to people that it has ?

Why should the Law Society of Scotland be allowed to regulate an opened legal services market, when it has campaigned for so long to keep that market closed for its own members to make as much money as possible ?

Why should the Law Society of Scotland be believed in anything it says, after it's disastrous performance as self regulator of solicitors, and protector (as it claims) of the public's interest in legal affairs ?

The answer of course to those questions is that the Law Society has no right, no claim, no credibility and no purpose to be involved in regulating what will be a new legal services market where many firms, banks, individuals and others will do the work currently undertaken only by lawyers.

The problem is though, that no one seems to be thinking ahead to that very matter, of regulating the incoming firms to the legal services market, and I don't buy arguments that firms, such as Banks, Building Societies, and yes, even the likes of Tesco, can be relied upon to either police themselves or rely on the regulations which govern their respective sectors.

It is time for a new fully independent regulator of legal services in Scotland to emerge, and with the opening of the legal services market, the Justice Secretary, OFT and campaign groups, consumer groups etc must get together and come up with a solution to that, avoiding letting the regulatory operation slide unwillingly back to the Law Society of Scotland, who currently are the only regulators of the legal profession in Scotland.

The easy solution of course, is to give more regulatory powers to the new Scottish Legal Complaints Commission, extending their remit to cover anyone who will act in the legal services market, whether that be a solicitor, banker, accountant, or a qualified individual without a professional affiliation.

However to have power and authority in an opened legal services market, the SLCC will have to be given the full regulatory remit it should have had in the first place, also considering conduct complaints as well as service complaints, the latter of which the SLCC currently can only investigate, after interference from the Law Society during Parliamentary consideration of the Legal Profession & Legal Aid (Scotland) Act 2007, which saw a reduced complaints remit pass to the SLCC, sharing regulation with the Law Society in a distinctly unhappy marriage not in the public interest.

The OFT to a certain extent, understand there needs to be a fully independent regulatory body for legal services, but the problem is getting the OFT to say it.

If they say it for Scotland, they will have to say it for England & Wales, admitting what many a client who has had the misfortune to be forced to make a complaint to the Law Society north or south of the border - and that is that lawyers, regulating complaints against lawyers, does not work, is invariably prejudiced, lacks accountability, lacks transparency, and has no scale of redress for the hurt, financial damage and personal damage that such issues cause the client, while the solicitor happily goes on practicing law.

Again, quoting the Herald newspaper's report on the debate, the OFT were critical of those supporting the current solicitors monopoly on legal services.

"As expected, defenders of the status quo were given short shrift by Sean Williams, executive director for markets and projects at the OFT.

He was asked whether the watchdog would act to block wealthy organisations such as banks from elbowing their way into the legal services market through what one delegate called "predatory pricing".

Williams countered by demanding to know why Scotland's legal services sector should be protected from competition if this was in the interests of clients.

"To say we should prohibit entry by very major suppliers because they have deeper pockets is a route to a smaller profession," Williams said."

Sean Williams is indeed correct in his response.

Why should Scotland's legal services market be protected from competition, if competition was in the interests of the client - which it certainly is, providing wider access to justice and legal services currently denied by solicitors & advocates. Why should the likes of Banks and other 'wealthy organisations' be prohibited from entering the legal services market ?

The answer of course is there is no reason other than filling the pockets of members of the Law Society of Scotland, to maintain the current monopoly on legal services, forcing me & you to use a solicitor to access legal services or get to court. It is in our interests, the client, to open up the legal services market and allow us to choose who will represent our legal affairs - whether that choice be a solicitor, or a legal agent from a bank, or even a supermarket legal service.

As long as strong, effective independent regulation is provided to oversee the opened legal services market, enforcing standards of service and qualification, while giving the public an independent route for pursuing complaints against poor service or conduct issues, and making financial claims for compensation against such poor service or conduct issues, the problems we have seen in the past with the likes of the Law Society of Scotland allowing virtual armies of crooked lawyers to remain in practice will not be an issue.

If of course, the Law Society of Scotland had done all this from the very start, administered complaints properly, dealt with clients who took issue with poor legal service in a non adversarial manner, enforced & maintained standards vigorously, paid compensation to those who were ruined by poor service from solicitors, and worked from a willingness to resolve issues generally, rather than going hammer and tongs against clients at every turn, the issues which now face the legal profession would simply not exist.

How sad particularly, the membership of the legal profession have done nothing to rectify their regulatory body's shortcomings. So much could have been achieved, put right, healed, and confidence restored to legal services in Scotland, but sadly, the impotice for change and reform, has to come from outside.

Following article from the Herald newspaper :

Law Society promises recommendations


The governing body for Scottish solicitors has pledged to issue landmark recommendations by the end of February which could trigger a revolution in the way legal services are delivered in Scotland.

Speaking at a landmark conference in Edinburgh, Law Society of Scotland president Richard Henderson conceded that the organisation needs to respond quickly to urgent calls for reform of Scotland's closed shop, which prevents organisations such as banks and supermarkets from offering legal services and bans Scots lawyers from seeking external capital or forming partnerships with other professionals.

A society consultation paper discussing the reform options is planned for late October. Henderson said the ruling council plans to issue draft policy recommendations by the end of February.

Yesterday's event at the National Gallery of Scotland, "The Public Interest, Delivering Scottish Legal Services", was acknowledged to be one of the most important forums the society has ever staged.

In England and Wales, reforms collectively dubbed "Tesco Law" are set to take effect in 2010 and Scotland is under pressure to produce its own blueprint for change.

As The Herald reported yesterday, Justice Secretary Kenny MacAskill is obliged to act after the OFT upheld calls by consumer watchdog Which? for reform of Scotland's legal services market.

A "super complaint" lodged with the OFT in May by Which? had recommended the watchdog address fears that the current regulation of Scottish legal firms is hindering competition in the market, restricting choice and pushing up the price.

MacAskill must respond to the OFT by December. He told yesterday's conference that he expects Scotland's legal profession, not its government, to plot the way forward, but left the society in no doubt that he expects action soon. "You do not have the luxury of endless time to decide," said the Justice Secretary. "I shall be meeting Law Society officials within the week and expect to hear a positive outcome."

The debate around so-called "alternative business structures" is a deeply divisive one among lawyers. There are fears that many small Scots firms could be wiped out by a competitive free-for-all and that permitting external ownership could compromise professional integrity.

This was evident during a question-and-answer session attended by Julia Clark of Which?, architect of the super-complaint. She was howled down with cries of "rubbish" when pressed by a representative of the society's in-house lawyers' group over precisely how banks and building societies offering legal services would be policed.

"You proposed this, you should have some sort of concept about how this will work," Clark was told.

As expected, defenders of the status quo were given short shrift by Sean Williams, executive director for markets and projects at the OFT.

He was asked whether the watchdog would act to block wealthy organisations such as banks from elbowing their way into the legal services market through what one delegate called "predatory pricing".

Williams countered by demanding to know why Scotland's legal services sector should be protected from competition if this was in the interests of clients.

"To say we should prohibit entry by very major suppliers because they have deeper pockets is a route to a smaller profession," Williams said.

Thursday, September 27, 2007

Lawyers Legal Aid quit plan - in truth a protest over reforms to the legal profession

Convenient headlines for the legal profession in the run up to Friday's 'Public Interest' debate at the National Gallery of Scotland on opening access to legal services, as the Law Society of Scotland runs big with headlines threatening that 90% of Scotland's solicitors will quit civil legal aid, leaving legal advice deserts where the poor wont be able to hire a lawyer on civil legal aid.

Those legal aid advice deserts have existed for years - even when lawyers were getting what they wanted from the Scottish Legal Aid Board, it was just that lawyers didn't want to take on particular clients, or cases, as it wasn't in their best interests, or the interests of their profession, to do so.

A simple cure for that is to open the legal services market up and allow the incoming competition to claim legal aid for representing people in their legal affairs, but has been demonstrated over the years, the Law Society of Scotland has faought to prevent anyone other than their own member solicitors from obtain legal aid payments.

Protecting their markets again ? even when it comes to legal aid payments ?

Surely this is yet another good reason to deregulate the legal services market and ensure that any legal adviser, whether they are a member of the Law Society of Scotland or not, can claim civil legal aid, thus ensuring more competition and choice for the sections of the public who are denied access to justice & legal services - either through their poverty, or the whim of the legal profession who simply don't want their cases to proceed.

This is what the Law Society of Scotland's Chief Executive, Douglas Mill, thinks of anyone claiming civil legal aid to take on a crooked lawyer (he cancels their legal aid claim)

The Scotsman 5 June 1998 Law Society accused of closing ranks as claim fails

This is what Philip Yelland, Director of Regulation, thinks of anyone taking on the Law Society of Scotland on civil legal aid (he demands the lawyers dont take instructions from their client)

Philip Yelland letter to David Reid ordering him not to take my instructions

Ultimately of course, these threats of quitting legal aid comes from allowing the legal profession to run itself and basically control and ruin the chance of any reforms to its practices, which politicians have invariably put forward, only after long arduous campaigns from consumer organisations & the public.

The legal services market reforms as proposed by the OFT should be implemented without delay, and if Kenny MacAskill is up to giving Scottish consumers the same rights as those in England & Wales, breaking the Law Society of Scotland's members monopolistic hold on everyone's access to justice, access to legal aid, and access to legal services, then the competition can take up representing clients on legal aid, if solicitors don't want to do it.

Additionally, and for the good of the public interest, make the new Scottish Legal Complaints Commission the full independent regulator it was originally intended to be, before the Law Society of Scotland and MSP allies interfered to split service & conduct regulation between them - and ensure there is a requirement by all legal firms to accept legal aid clients, or they will simply not qualify for a practicing certificate.

I would point out that while there seem to be enough lawyers crying about little legal aid, the Law Society's own report on this, actually showed increases in legal aid payments, which I pointed out in earlier coverage of the legal aid scandal here : Lawyers protests over low legal aid fees revealed to be fake as Law Society's own research points to increase

Of course, there are some lawyers who will go to any lengths to get legal aid, as a tabloid sting on a lawyer who was bribing clients to fill out legal aid forms,revealed here : Lawyer caught in media sting bribing clients to defraud Legal Aid Board - the tip of an iceberg

One other thing I note from the Scotsman article below "In the meantime, regulations have been laid in parliament this week ....."

Great isn't it, that the legal profession can snap its fingers to the Scottish Government & Parliament, and amazingly, legislation is tabled almost immediately to suit them - but victims of disgraceful corruption by the legal profession have been writing to MSPS for over two decades, and only last year, secured the LPLA (Scotland) Act 2007 to slightly address complaints against lawyers ...

Based on that, is it the lawyers who command MSPs and the Parliament, or the electorate these days ?

Reform the legal services market Mr MacAskill - take regulation completely away from the legal profession while cleaning up its sins of the past and make it a requirement that if a legal firm wishes to practice law, they must accept a quota of legal aid clients, or they don't get their practicing certificate renewed.

Articles from the Scotsman & Herald follow, and some good comments available on the newspapers own respective websites via the headline links :

Nine out of ten law firms 'plan to quit' civil legal aid


THE future of civil legal aid in Scotland was thrown into doubt today by the publication of a survey showing nine out of ten law firms are so disillusioned with the system they are preparing to withdraw from all such cases over the next four years.

Lawyers across Scotland are frustrated with the bureaucracy, the way payments are worked out and, above all, with the low rates of pay under civil legal aid.

As a result, the number of law firms still offering their services for civil legal aid has gone down, with most of the remaining 736 firms preparing to pull out in the next four years.

Civil legal aid is provided to those who cannot afford the services of a solicitor in non-criminal cases. The most common use is for divorce, but women being abused often need legal aid to get court orders to keep their abusers away. Civil legal aid is also provided for adoption cases, debt and child law.

The survey also suggests that only a rethink of the system will prevent its wholesale collapse.

Oliver Adair, the convener of the Law Society's Legal Aid (solicitors) committee, warned that the most vulnerable in society would suffer if, as now seems likely, solicitors withdraw their services.

And he added that the 2003 reforms to the system, which were supposed to increase access for the most vulnerable, might end up doing the opposite.

The Law Society conducted the survey after hearing increasing amounts of anecdotal evidence of dissatisfaction with the reforms that were introduced by the previous Scottish administration.

The reforms were supposed to make the system simpler and more accessible for those most in need, introducing standard block fees for lawyers for set amounts of work and allowing lawyers to be paid for at least some of their work before the case was completed.

The basic fee is £19 for a block of work, and although the rates vary depending on the type of case, the kind of work involved and the court, it works out roughly at £52.60 an hour for work outside court and £60 an hour for representing clients in court.

However, the survey found 92 per cent of lawyers who provide services under civil legal aid were planning to end the service in the next four years. Most believe that they are getting so much less now, in terms of legal aid fees, that it does not make any sense to stay within the system.

When asked their reasons for either giving up or considering quitting civil legal aid, 80 per cent of lawyers said it was because the system was "financially unviable" and 60 per cent also complained about bureaucracy.

For most firms, civil legal aid amounts to only a small part of their work, so it would not be difficult for them to pull out.

While the Law Society survey stopped short of warning of a crisis, Mr Adair did admit that there were very serious problems ahead unless something was done to reform the system.

He said the funding system was not flexible enough to cope with cases which needed a lot of work. "Unfortunately, the people who will be the worst affected will be the most disadvantaged in society. The people who need help the most will not get access to it if lawyers pull out of the system," he said.

"Instead of improving access to justice, it would appear that the changes are having the opposite effect."

But Colin Sim, from the Legal Aid Board, said a review of the fee level had been started and it would be decided by ministers in the near future.

Mr Sim said: "There have already been changes and there is a review of the fee level under way. It is now a matter of the fee level to give an appropriate fee for solicitors, but it is unlikely to match the increases in private fees over recent years."

A spokesman for the Scottish Government said: "We are aware that civil legal aid fee levels are a major concern for solicitors. That is why the Scottish Legal Aid Board is reviewing the fees paid to solicitors undertaking civil legal aid work to see if the block fee arrangements are providing an appropriate level of remuneration.

"In the meantime, regulations have been laid in parliament this week which will improve payments for undefended (non-divorce) civil actions in the sheriff court. This should make it more financially viable for solicitors to take on work such as seeking a protection order."

and now for the Herald's version of the same story ...

Nine out of 10 law firms ‘to drop civil legal aid’


Nine out of 10 law firms offering civil legal aid work will drop the service within the next four years, a poll revealed yesterday.

Most said they could no longer afford to do the work after reforms they claim have already turned huge swathes of Scotland into "advice deserts".

The survey, by the Law Society of Scotland, is the latest evidence of growing discontent among lawyers about the way fees are paid for civil legal aid.

Oliver Adair, a Larkhall solicitor who chairs the society's Legal Aid Committee, said the poll backed anecdotal evidence from across the country. Lawyers, unhappy with the system of block fees for civil legal aid work, are simply declining to take new cases, especially in complex family law.

Mr Adair said: "What we are talking about is a potential problem with access to justice for the most disadvantaged people."

The Scottish Government and Scottish Legal Air Board (Slab) yesterday acknowledged lawyers' concerns and said they were reviewing fees, something welcomed by Mr Adair. However, he added: "The survey results would suggest they have not done enough."

The Law Society survey, of more than 100 firms, found that 92% of those offering civil work for legal aid intended to stop doing so within the next four years. Fully 38% said they would drop the business within a year.

Only 3% of firms polled said reforms of 2003 - when the system of block fees was introduced - had increased their income from civil legal aid. Some 70% said their earnings from such business had fallen. Many firms said the amount of legal aid work they were doing had increased - mostly because rivals had dropped the business.

Of those planning to drop civil legal aid, four out of five said it was for financial reasons.

One firm said: "When it costs £60 or so an hour to pay qualified legal staff to undertake legal aid work, one would have to regard it as pro bono to undertake it at the silly rates offered by Slab."

Another said: "If the funding is not forthcoming, the scheme will simply wither away. That cannot be allowed to happen in a caring legal system."

Other firms said they would only do legal aid work for the most vulnerable, children and adults with incapacity. Money was not the only gripe. Some companies also complained that they were tied up in red tape.

The way lawyers were paid for civil legal aid changed in 2003. Until then they always received a "time and line payment". They still do for some work, from £53.60 to £68 an hour. Most of their fees, however, come in blocks of £19 with no hourly rate.

The Law Society sent the questionnaire to all firms registered to carry out civil legal aid, although not all responded.

A spokesman for the Scottish Government said a review of fees was being carried out, and is due to be completed next month. "We're aware civil legal aid fee levels are a major concern for solicitors. That is why Slab is reviewing the fees paid to solicitors undertaking civil legal aid work to see if the block fee arrangements are providing an appropriate level of remuneration.

"In the meantime, regulations have been laid in parliament this week which will improve payments for undefended (non-divorce) civil actions in the Sheriff Court."

The spokesman also said Slab officials had been in talks with the Family Law Association to look at how lawyers should be paid for the kind of complex cases that are not suited for a block payment. Improvements could be made by the end of the year, he said.

The government has already made some moves to fill gaps left by private law firms pulling out of civil legal aid. Slab, for example, appointed a salaried lawyer based in Inverness, not least to help women who are the victims of domestic violence.

The Law Society poll follows a separate survey carried out by Mori more than a year ago. Mori spoke to around half of all firms then taking part in the civil legal aid scheme.

A spokesman for Slab said: "In our survey 62% said they were certain to or likely to still be doing legal aid work in three years time. Nineteen percent said they were not likely to and just 9% were certain not to."

Tuesday, September 25, 2007

Law Society public interest debate masks lawyers control of access to justice

The Law Society of Scotland, Scotland's notoriously prejudiced self regulator of solicitors, is staging a debate this week on the future of the legal services market in Scotland.

The debate, is imaginatively titled "The Public Interest - Delivering Scottish Legal Services", and is being held on Friday September 28, at the Weston Link, National Gallery of Scotland. If you want to go along, you can locate the venue HERE. Don't forget to register with the Law Society for attendance by contacting the Law Society here : or telephoning on 0131 476 8201.

The odd thing is though - the Law Society don't want the public to attend, least of all any of those who may have had bad experiences with Scottish lawyers ... so its a public interest debate, without the public interest ... typical of the Law Society, hold a debate and control what's being debated.

I covered this 'public interest' debate in an earlier post, where the Herald newspaper also revealed that while speakers were invited to make their opinions & ideas known, the Law Society leadership had their own policies to follow, rendering this Friday's 'experience' little more than a talking shop, which many even in the legal profession widely acknowledge themselves to be the case.

My earlier article : Law Society Chief - Debate legal services reform but lawyers must retain control of the legal profession

Law Society Chief Executive Douglas Mill, infamous for his anti-client policies over the past nearly two decades which have coincidentally, seen the Scottish legal profession fall to it's lowest levels of public trust & respect, has stated that while ideas can be talked about over access to legal services, the Law Society must control who enters the legal profession to limit competition once more - the latest idea for retaining control of the legal services market monopoly which now faces break up after many years of campaigning and the recent intervention of the Which? "super complaint" and the OFT's recommendations for reform of access to legal services, which are yet to be answered substantively by the Scottish Government.

Douglas Mill's argument for controlling entry to the legal services market revolves around maintaining what he claims is 'quality legal services' - but in truth Scotland has never had 'quality legal services' which the public can trust, certainly not while the Law Society of Scotland have regulated complaints against their own member solicitors (at the rate of 5000 plus complaints a year against 9,500 solicitors, for well over a decade), and certainly not under the near 20 year old administration of the Client Relations Office by Philip Yelland, now the Director of Regulation, or under the various Presidents which have changed posts annually since 1990.

In short, the Law Society of Scotland are in a bit of a mess, held it seems in the grip of people like Mill, Yelland, and others who have remained in the top posts, even, promoting themselves to higher titles and with larger salaries, while the profession in general has been dragged into the gutter

Strangely enough, the membership have done nothing about the poor state of the legal profession, until perhaps now, as solicitors are having to wake up to the failure of Law Society policy on legal services, and the prospect of their monopoly market being opened up to competition where under the proposed OFT reforms, the public will have a wider choice of access to legal services, rather than being forced to use an expensive Law Society member solicitor or advocate as is currently required.

Some legal firms have decided to break with Law Society policy, advocating acceptance of the proposed OFT reforms and restructuring their firms services to offer wider choice, although worryingly, the legal firms who have broke from the Law Society on access to legal services policy, have their own poor regulatory histories to deal with, which remain undisclosed to any potential clients of course ...

I covered the differences in policy between the Law Society and some legal firms on the OFT reform proposals here : Law Society policy on open legal market reforms at odds with solicitors & public alike

Why do the Law Society of Scotland wish to control access to legal services ?

Is it perhaps because those who are denied access to justice may be able to secure legal services in the future but whom it was not previously in the interest of the legal profession to receive access to justice in the present closed legal services market where currently you have to go to either a solicitor or advocate ?

Control over who actually gets access to legal services has been a long cherished power of the Law Society of Scotland for many years - effectively controlling whether you can use a lawyer and get to court, or not, at the whim of a few individuals in the legal profession.

Is the Law Society's motive for this retention of control over access to legal services in the public interest ? No it certainly is not.

If you are wondering why so many people fail to get to court in cases of the like of .. professional negligence ... cases against public bodies, cases involving poor services of government, or institutions favoured by the legal profession itself, you need look no further than this issue of controlling access to justice, where, for decades, the Law Society of Scotland have effectively ruled against the right of the individual to obtain access to the law.

As far as the public interest goes, control off, or denial of access to justice is not in the public interest, and you would think, something a modern democracy would hardly tolerate, but in reality, this has been going on for years, with politicians who knew all about it, from all parties, including the SNP, doing nothing to assist the public. That has to change, and while the legal profession must admit it's sins of the past, so to must politicians, who have went along for too long, allowing the legal profession to run the legal system for their own good.

All this is a good advertisement if any is needed, the legal services market and regulatory reform of the legal profession in Scotland must be fully implemented and the sins of self regulation properly addressed & cleaned up, otherwise, even the opening of the legal services market will not address issues of lack of public trust, lack of accountability and lack of transparency in dealings with lawyers ...

If this debate is supposed to be about protecting the public interest, maybe the public, and a few clients such as

those who appeared at or submitted evidence to the Justice 2 Committee hearings in 2006 on the complaints reforming Legal Profession & Legal Aid Act (Scotland) 2007, should have been invited to air their views and inject a note of truth & realism into what is little more than yet another talking shop for the legal profession ?

... or is the public interest as the Law Society calls it - more realistically, the Law Society's own special interests of retaining control over access to justice .... not served by such democratic, inclusive debate ?

If you want to make your feelings known to the Justice Secretary on this, perhaps you should go along and visit this "public interest" lecture on legal services, and air your own views & experiences in dealing with the legal profession ... after all, the debate is, supposedly in the public interest ....

Article from the Scotsman follows :

Alternatives for firms debated


GROWING tensions between commercial and consumer interests over legal services are to be debated at a Law Society of Scotland conference on Friday.

In the wake of the Office of Fair Trading's (OFT) recent response to the Which? super-complaint, the society will hold a half-day meeting to explore the implications of alternative business structures (ABS) proposed for firms in England and Wales.

ABS is not yet officially on the cards in Scotland but the OFT has recommended the Scottish Government look at lifting market restrictions which "could be causing harm to consumers". These include current rules governing advocates' business structures and third-party entry into the market.

The consumer lobby is pushing for Clementi-style reforms to be introduced in Scotland in order to increase competition and drive down prices. Some larger Scottish firms have also indicated they want to see a level playing field with their English rivals in the post-Clementi era.

But the society and Faculty of Advocates have already expressed concerns about the impact that alternative business structures could have on public access to legal services, particularly in rural areas, if so-called "Tesco law", (firms such as the AA and the Co-op have plans to provide legal services) drives small firms out of business.

Michael Clancy, the society's director of law reform, stressed the importance of solicitors engaging in this week's debate to help find solutions to balancing commercial and consumer interests with the need to maintain access to justice.

He says the profession has now reached a "significant crossroads", with any reforms likely to have far-reaching implications for the entire legal system.

"It is quite clear that there are tensions," he says. "There are the issues of commercial work and commercial interests and there is the high street and the small town and rural areas, and issues about access to justice. What is the solution that satisfies everyone?

"That is one of the reasons why the conference is so important - it is a very significant crossroads for the profession and the Scottish legal system. It will inform the views that set the timbre for developments in the early 21st century.

"There are lots of commercial concerns affecting large and small firms alike. The Scottish Government will want to create an environment where both the large firms can feel satisfied that they are providing a service to their clients and that that service is providing a showcase for Scottish legal skills, and at the same time small firms are providing a service to our communities."

The society is drafting its own proposals for reform, to be published in a green paper this autumn. Clancy says it is "no secret" that a draft document already exists, but he stressed it will be adapted to reflect views put forward by the profession.

"Part of the process of the conference is to inform the society's council about the various views," he says. "Once the conference is over, the council will have the opportunity to consider the things that have been said on the day and the idea is that we should produce an options paper, a kind of green paper, which will put out options into the public domain for comment and response.

"After we have analysed these responses, we will come forward with a more substantive policy statement. Hopefully this will be concluded in the early part of 2008."

Clancy says the process may take some time to conclude but pointed out it is important to find the right solutions for the Scottish marketplace: "This is such a crossroads that the implications will reach far and wide and affect the system for a long time to come. We have to proceed properly so we get the right answer, because getting the wrong answer will be very bad for the public and for the legal system of Scotland."

At Friday's conference in Edinburgh, the keynote address will be made by Kenny MacAskill, the justice secretary. Other speakers include Jonathan Goldsmith, chief executive of the Council of Bars and Law Societies of Europe (CCBE), and Sean Williams, of the OFT. A panel discussion will also hear views from Martyn Evans, the director of the Scottish Consumer Council, Valerie Stacey QC, the vice dean of the Faculty of Advocates, Douglas Connell of Turcan Connell, Julia Clark of consumers' association Which? and Christine McLintock, of McGrigors.

Clancy adds: "It will be extremely interesting to see if the tensions can be substantiated by the people from the larger and smaller firms and from the consumer interest and Faculty of Advocates.

"The discussion will be extremely informative and will assist our council and policymakers to get to grips with the issues and see how these various tensions can be relieved and what middle ground there can be."

Yet any decisions about whether to follow the English model, set out in the Legal Services Bill currently going through Parliament, are hampered by a lack of evidence from other jurisdictions about the longer-term impact of alternative business structures, Clancy says.

Across much of Europe, and even in the United States, Clancy says, there is opposition to the concept of the multidisciplinary practice, and Australia is the only other major jurisdiction in favour of them.

• "The Public Interest - Delivering Scottish Legal Services" will be held at the Weston Link on Friday 28 September. For more info visit

Thursday, September 20, 2007

Government Legal Service for Scotland - 'no help to victims of injustice'

If anyone wondered why the Scottish Executive, formerly the Scottish Office, and now renamed in it's latest incarnation, the Scottish Government, was always so shy to deal with people who, in desperation wrote to our 'governing administration' in Scotland because self regulatory bodies such as the Law Society of Scotland were and still are letting crooked lawyers off the hook on even the most serious of charges, they need to look at just how entrenched lawyers have become over the years in government & public services in Scotland.

The Government Legal Service for Scotland, which of course is supposed to serve government and the people in terms of keeping the actions of Government, and the implementation of legislation within legal compliance, seems to have been serving the legal profession itself too, advising continually over the years, that any effort on the part of politicians to assist complainers against solicitors, should be resisted.

The GLSS has also intervened in Parliamentary submissions by members of the public, censoring their content to withhold the names of solicitors identified in scandals & corruption, and notably, lawyers from the GLSS have also been involved in scandals from everything from the Dunblane Inquiry, to the Shirley McKie fingerprint scandal, to the Hep C contaminated blood products cover up, to just about every single scandal and inquiry you could think of which has happened in Scotland .... no surprise, that in most of these cases, even it seems, when some Ministers have been caught with dodgy mortgage expenses and other fiddles, legal advice from solicitors in the GLSS has been to delay, lose documents, filibuster, prevaricate, intimidate, seek records on people taking issue with government policy, and finding out information on critics with public standing, in efforts to weaken their case.

Slimy stuff .. perhaps, a well organised dirty tricks operation one could say ... and one would be correct in saying that .. but aren't these solicitors who work in public service supposed to be doing something else ? or are targeting the critics of public policy, and holding people in continual injustice just for political means, the stuff of public service these days ?

A few years ago I began to wonder what solicitors for the Scottish Executive Government, did, after constantly seeing some of their 'advice' on issues, ranging from my own correspondence with the Government over the Law Society's failure to investigate crooked lawyer Andrew Penman of Stormonth Darling Solicitors, Kelso and the crooked Borders accountant Norman Howitt

Advice from those giving it to Scottish Ministers & Departments, apparently ranged from "don't respond to this man" to comments such as "we have to get something on him to shut him up" .

It made me wonder ...if these solicitors & their colleagues were saying that about me, they were saying the same about the other 1000 plus people a year who were also writing to the Scottish Executive over just how corrupt the Law Society of Scotland was, and just how corrupt the Scottish legal system was in general .. and it turned out, they were doing just that ...

One particular piece of correspondence from a Solicitor at the Executive, a memo, went on at some length seeking answers as to why or how I was able to secure the attention of the Scotsman newspaper, which ran many stories on the crooked lawyer Andrew Penman scandal, and which also helped to publicise other people's cases of complaints against crooked lawyers, and the failings of self regulation by the Law Society of Scotland.

Attempts to put a stop to the Scotsman running stories on my case ranged from quiet words in the ear of some at the newspaper (and at other newspapers), to an organised attempt to eradicate my credibility with the media, which, thankfully, did not work. It seems no expense or effort was spared in this operation ... and given there are many people in the same boat as myself, I should imagine the GLSS have been running around for years, at taxpayers expense, making sure that victims of injustice, stay victims of injustice. Great work for the wicked ... and well paid too.

Solicitors who work for the GLSS, are of course, also, first & foremost, members of the Law Society of Scotland. Their duty to the Executive and public service, is only surpassed by their duty to their professional body, which if not carried out, will see the revocation of their practicing certificate.

Solicitors for the GLSS also pay into the Master Insurance Policy - the infamous Professional Indemnity Insurance scheme ran by Marsh UK, subsidiary to scandal laden Marsh & Mclennan of the US - which incidentally, is affiliated to virtually every single political party in the UK, even having had a former Scottish Secretary of State, and now Peer - Lord Lang of Monkton on it's Board of Directors You will all of course, remember what happened to the very same Ian Lang when he was an MP ... and errm .... an occasional scandal ...

However, the solicitors for the GLSS don't need to pay their subscriptions to the Master Insurance Policy themselves - they get it via an expenses claim submitted to the Executive, who cover the cost at your expense.

What a great perk - and thus, GLSS solicitors can be as dilatory and negligent as they want after that - because as we all know, no one can make successful claims against the crooked Master Insurance Policy of the Law Society of Scotland ... which has seen everything from the Police being used by lawyers to defeat public complaints & intimidate clients, to meddling from the likes of Law Society Chief Executive Douglas Mill in order to destroy negligence cases against his colleagues.

The new Justice Secretary will know about all this of course... so my concern is .. when are we to be told just how deeply the legal arm of Government in Scotland has held victims of injustice in perpetual injustice for so long, just so a few careers can be saved, a few people can make a lot of money, and of course, a few people can waste away in ruin, to ensure all this goes off smoothly.

Isn't that a bit like someone giving advise that an abuser should go on abusing their victims to keep them from getting help to stop the abuse ?

Well, just to show you how well traveled these GLSS solicitors are, conveniently, their boss, Richard Henderson, who was the GLSS Chief while also being Vice President of the Law Society of Scotland, has now become full President, after the carefully arranged resignation of John MacKinnon from the post a few weeks ago, on grounds of 'pressure of work'.

Needless to say the Law Society of Scotland, in it's darkest hour of need, required a government insider to take the albeit symbolic position of President, and give pointers on how to prevent too much reform in the public interest ... and I'd say they have the very man for that - since Mr Henderson has been in Government service for the past 23 years or so.

If that were for instance, a Government minister of a Department, say, the Secretary of Defence, resigning and going to Chair a Weapons company which had significant government contracts, ministerial rules would kick in and prevent it ... but because it's the legal profession, a well known law unto itself .. no one bats an eyelid .. and some are even engaged to re-write the history of the whole episode.

Don't worry too much about Mr Henderson's salary cut though .. he gets £80,000 a year just being in the 'figurehead' position of President of the Law Society ... well worth it to those who wish to stall any pro public interest reforms perhaps .. with all those connections still in government ...

For a look into the murky, unaccountable world of Government Legal Services for Scotland, and Mr Henderson's appointment as President of the Law Society, here is a story from the Scotsman earlier this week, followed by a brief on GLSS services and capabilities, which don't always act or operated in the public interest when it comes to the interests of the legal profession and other professional colleagues, being at odds with that same public interest, or indeed, with justice itself ...

You may of course, conclude that someone within the GLSS has 'spilled the beans' on some of the things I have written about here ... if you did, you would be correct of course, but it would of course not be proper for me to divulge anyone's name in that respect now, would it ....

New kid on the Law Soc's block


IF TIME does indeed fly, then Richard Henderson might feel that it is travelling at something approaching a supersonic speed. His first interview as president of the Law Society of Scotland was pencilled in for next May but, following the sudden resignation of John MacKinnon last month, Henderson stepped up to the plate.

When his predecessor clearly felt overwhelmed by trying to balance the presidential role with his workload as a solicitor, Henderson might have been forgiven for feeling a degree of trepidation about taking over.

The decision was made easier by the fact he recently retired as solicitor to the former Scottish Executive, but Henderson acknowledges there is something of a leap between the responsibilities of vice president and president, and he hints this may be a issue for the society to consider in the future.

"The question is to what extent the office-bearers can be involved because of the changing world we are in, particularly in the profession," he says. "One of the challenges for the future is the level of involvement."

However, he stresses he believes practising solicitors do want to be involved in setting strategy, rather than leaving the bulk of such work to chief executive Douglas Mill and his team. "I detect there is a desire to be involved in change and a recognition change is something that is with us, and it is an opportunity and not a threat," he adds.

Change has been a hallmark of his time on the society's council. Henderson's decision to become a co-opted member in 1998 came at a time of seismic political change and he wanted to make a contribution during the early years of devolution.

"I thought then that government lawyers had a lot to offer," he says. "Historically, we have not really been involved in the business of the Law Society, but it was the point at which devolution became a reality and I thought that they should be involved with the professional body."

While Henderson is not the first lawyer with an in-house background to be president, he is the first government lawyer to fill the post. Given the somewhat fraught relationship between the society and the former Executive over issues such as complaints handling and legal aid, his understanding of the workings of the civil service may help.

However Henderson (who was awarded the Companion of the Order of the Bath in the new year's honours list), acknowledges that much is different even in the short period since he stepped down.

"Quite obviously it is true to say the dynamics of government are somewhat changed," he says. "I don't think that will preclude the continuing involvement of government lawyers. Given the way the agendas of government and the Law Society often interact, there may be some advantage in my being a government lawyer - I don't see it as a disadvantage."

Henderson will certainly have a different perspective from the majority of past presidents, most of whom have been solicitors in private practice. After qualifying as a solicitor in 1972, Henderson joined the Scottish Office, rising to solicitor to the secretary of state for Scotland in 1998 and becoming solicitor to the Scottish Executive in 1999.

Except for a three-year stint on secondment to the Scottish Law Commission, Henderson has worked in government for his entire career. While he comes from a different background to MacKinnon, the short-term agenda is already set. He identifies three key strands as priorities: governance; education and training; and standards.

Work to set standards is probably top of the list and is closely linked to the imminent opening of the new "gateway" for service complaints, the Scottish Legal Complaints Commission. But Henderson insists the profession would have addressed this issue with or without the advent of the commission and points to existing "quality marking" schemes such as the society's accreditation of specialists. He also sits on the board of the new signet accreditation scheme launched by the WS Society.

"It has been a vexed question over the years," he says. "I don't think the commission is the sole driver but it is indeed a catalyst."

A working group has been formed to draw up options for consultation next year. It is a time-consuming process, and one critics might argue is long overdue: an "arid debate" as far as Henderson is concerned.

The fact the society won't have developed a set of standards before the commission starts looking at service complaints does not worry him, he adds: "The intention is we should be in a position to offer statements on standards to the commission, when it goes live, can have some indication of what the profession thinks."

The implications of the OFT's response to the recent Which? super-complaint and the advent of alternative business structures, which will be debated at a major Law Society of Scotland conference later this month, will also require the society to grapple with some difficult issues. Henderson recognises the need to balance the economic arguments for firms to be able to compete on a level playing field with their English counterparts with concerns about the impact on smaller firms serving rural areas.

As Henderson will remain president until May 2009, he will be in the unusual position of having almost double the normal length of time to make an impact, and is keen to get other members of council to play a greater role: "The important thing is the profession is able to respond to the future and anything I can do to assist that is what I am here for."

Government Legal Service For Scotland

The Government Legal Service for Scotland ( GLSS) is a professional community of lawyers in government in Scotland.

It exists in order to -

* raise awareness of the roles of public service lawyers and of the GLSS member offices
* promote contacts, share information and develop skills and knowledge among staff in its member offices
* provide shared services to member offices and their staff.

who we are

The member GLSS offices are -

* Office of the Solicitor to the Scottish Executive
* Legal Secretariat to the Lord Advocate
* Office of the Solicitor to the Advocate General
* Legal Secretariat to the Advocate General
* Scottish Parliament's Directorate of Legal Services
* Scottish Law Commission

The GLSS also provides legal staff to (for example) the Crofters' Commission, the Lord President's private office and the Scottish Land Court. It works closely with others, in particular with the Office of the Scottish Parliamentary Counsel ( OSPC), responsible for drafting most Scottish legislation.

Uniqueness of GLSS work

Lawyers working with the GLSS and its related offices are engaged on a wide variety of interesting and intellectually challenging work, much of it unique to government. A central theme is the development and implementation of new law. Preparation of legislation for both the Scottish Parliament and Westminster forms a large part of the workload. It also includes handling high profile, sensitive litigation and dealing with novel devolution or other constitutional problems. The work of the GLSS is often newsworthy, and it is always necessary to consider political consequences and potential sensitivities or wider implications. Given the nature of the work, the GLSS lawyer has a very influential role and a real opportunity to make a difference.

GLSS lawyers are involved in almost all aspects of government - whether it be resolving legal problems in policy development, operational delivery of services to the public or the smooth running of corporate services. European Union, human rights and devolution law and practice form a constant background to government legal work.

GLSS lawyers may also be seconded to work in policy posts, particularly in areas which relate to legal policy such as the Scottish Executive's Justice Department or Constitutional Policy Unit. GLSS lawyers also provide support for public inquiries. Lawyers working at the Scottish Law Commission contribute directly to the Commission's aims of improving, simplifying and updating the law of Scotland and lawyers at the Scottish Parliament are central to the Parliament's work as a legislature.

Opportunities also exist for secondment to one of the EU institutions or a placement with an external organisation, whether in the public or private sector. This has, on occasions, involved temporary postings to places as far afield as Indonesia.

One aspect of working practice which differs markedly from many private sector firms is that lawyers in the GLSS tend to move between different areas of work over the course of their careers. They are viewed as specialist government lawyers, rather than specialising in a particular subject area for lengthy periods of time. This approach means that lawyers develop transferable skills and are able to deal with novel subjects which frequently arise.

Office of the Solicitor to the Scottish Executive

OSSE is the largest office in the GLSS, providing legal services to the Scottish Executive and its agencies. This covers a very wide spectrum including litigation and tribunal work, property and commercial law and procurement advice, instructing Bills and drafting subordinate legislation, including implementation of EC Directives. These responsibilities include the provision of legal advice to the Scottish Ministers. A major focus of OSSE's advisory and legislation work is in ensuring that Ministers act always within the powers conferred on them by the devolution settlement and that Executive Bills presented to the Scottish Parliament are within the legislative competence of the Parliament. This aspect of the office's work invariably involves consideration of human rights issues.

OSSE reports to the Lord Advocate and Solicitor General for Scotland who are the principal ministerial advisers to the Scottish Executive on legal matters. It currently has 109 lawyers, plus a range of support staff.

For more information see

Legal secretariat to the lord advocate

The Lord Advocate and the Solicitor General for Scotland (formally known as the Scottish Law Officers) are the principal legal advisers to the Scottish Executive. One of their roles is to provide legal opinions to Scottish Ministers in cases where advice at the highest level is required. Both are members of the Executive and the Lord Advocate attends Cabinet.

The function of the Legal Secretariat is to support the Scottish Law Officers in this role, for instance by researching and helping to draft opinions and by providing advice on other matters referred to the Law Officers. The work very often involves complex issues of human rights and constitutional law. The Legal Secretariat also has an important role in maintaining close liaison with OSSE which provides most of the legal advice required by the Executive and with their UK counterparts.

The Legal Secretariat currently comprises three lawyers, plus support staff.
office of the solicitor to the Advocate General

The Office of the Solicitor to the Advocate General for Scotland ( OSAG) is part of the Department of Constitutional Affairs, which is a Department of the UK Government. The Advocate General is the Law Officer responsible for advising UK Ministers on Scots law. OSAG is responsible for advising UK Government Departments operating in Scotland on all matters relating to Scots law. It instructs UK legislation applying in Scotland and represents its client Departments in litigation before the Scottish courts. It has special expertise in administrative law and in the division of legal powers between the devolved Scottish institutions and their UK counterparts.

The Office also provides support for the Advocate General in carrying out his statutory functions under the devolution settlement. Devolution issues arising in the Scottish courts are intimated to the Advocate General and OSAG staff co-ordinate their consideration in Whitehall and arrange for any intervention which the Advocate General considers appropriate. Legal staff also consider legislation which comes before the Scottish Parliament so as to identify any issues about competence which may arise. These issues are then considered in co-operation with Cabinet Office and other Whitehall legal advisers.

The Office comprises 18 lawyers, plus support staff.

Legal secretariat to the advocate general

The Advocate General is one of the three UK Law Officers, along with the Attorney General and Solicitor General, and is the principal legal adviser to the UK Government on Scots law. The Legal Secretariat is a small team of three lawyers based in London. They assist the Advocate General in preparation of Law Officers' opinions (many of which are prepared jointly with the Law Officers for England and Wales), and support him in relation to Parliamentary business, Cabinet committee meetings, correspondence, speeches and other general business. The legal staff take part in Cabinet Office committees of officials and other Whitehall co-ordinating meetings on European law, human rights and devolution.

For more about OSAG and the Legal Secretariat see

Scottish parliament's directorate of legal services

GLSS staff in the Directorate gain experience as parliamentary lawyers. The work is diverse. Much of it is legislative - helping produce non-Executive Bills, advising the Presiding Office on legislative competence, scrutinising Minister-made subordinate legislation. There is also work on procedures and governance such as advising the Scottish Parliamentary Corporate Body which is responsible for providing the Parliament's property, staff and services. Most of the lawyers work not only with colleagues in the Parliament staff group but also with Members across the parliamentary political spectrum, in committees and other forums.

The Directorate has 13 lawyers, and four support staff.

For more information see

Scottish law commission

The Scottish Law Commission is an independent statutory body which recommends reforms to improve, simplify and update the law. Its recommendations, if accepted, are generally implemented through legislation in the Scottish or Westminster Parliaments. Lawyers seconded from the GLSS play an important role in managing and contributing to the development of legal policy on all of its reform projects.

There are currently five senior GLSS lawyers working at the Commission. The Commission also recruits legal assistants for assignment to particular projects. For more information about the Commission and its work see

Careers opportunities for lawyers in the GLSS

Throughout some 175 legal posts in the various offices staffed by GLSS lawyers, the GLSS provides excellent opportunities for a varied and stimulating career.

GLSS lawyers are all civil servants and recruitment is by way of open competition. Vacancies are advertised on the Scottish Executive website as well as in the national press ( Assignment to a particular post takes place after recruitment and is determined by the business needs of the different offices, taking into account, so far as practicable, the experience and preferences of successful candidates.

Trainee solicitors

The GLSS offers a varied legal trainee programme which is advertised on the Executive's website and in the national press, as well as through its participation in annual law fairs run by the main Scottish Law Schools. The training covers a wide range of government legal work, from core professional areas - such as contract, litigation and commercial law - to specialist advisory work for departments and associated agencies. Trainees have four six-month placements during their traineeship. There may therefore be opportunities to work with the Legal Secretariat to the Lord Advocate, the Office of the Solicitor to the Advocate General, the Scottish Parliament or the Scottish Law Commission as well as a short placement in the Legal Secretariat to the Advocate General in London. There is also an exchange scheme under which some trainees may spend six months with a private sector firm.

Pay and conditions

The GLSS offers excellent working conditions and career prospects, supported by a commitment to training and development. Salaries are in the range of £27,153 to £32,583 for Legal Officers and £36,203 to £46,700 for Principal Legal Officers, the main recruitment grades. Appointments are permanent and pensionable. There are part-time and job-share opportunities as well as other flexible working arrangements. The current salary for trainees is £17,000 in the first year, rising to £18,955 in the second year.

summer placement scheme

The GLSS operates a summer placement scheme offering law students one month's paid work experience, normally between June and September. The scheme is open to students in the fourth year of their degree or currently completing their diploma and is advertised each year through the university Law Schools and Faculties.

for further information contact: Ann McKenzie, GLSS Secretariat, G B(N), Victoria Quay, Edinburgh EH6 6QQ Tel no. 0131 244 0815 or email

Saturday, September 15, 2007

Changes in small claims & disclosure law mask real needs of reform to Scotland's legal system

An interesting week in the annals of Scots law for most,to be sure ... the collapse of the World's End murder trial, accusations from all quarters except those which matter that the Crown Office is incompetent & in bad need of reform, or better still replacement, the intervention of a Police Chief in an attempt to cancel promised inquiries into the McKie scandal, and the little matters of Lord Coulsfield's recommendations on the laws of disclosure while the Scottish Government decided to finally raise the small claims limit, after 19 years.

The World's End trial collapse, along with all it's publicity, is a well timed example of just how poor the workings of our legal system are. A good reminder to anyone that while we may live in the 21st Century, our legal system is stuck in the dark ages, run largely by itself, in an unaccountable, rather dishonest, and almost dictatorial way, where no one is allowed to have a say on any changes which may alter the way of doing things which lawyers have been so used to for decades - making plenty money out of it too.

The Lord Advocate's statement to Parliament on the failure of the World's End murder trial, carried little of substance, being rather an attempt to control criticism of the legal system and the unbelievable way the Crown Office had acted in the case against Angus Sinclair, and while Elish Angiolini made her statement, many in the Parliament sat around like cabbages, either too stupid to take in the issues, or too cowardly to call for such significant change to Scotland's prosecution service as to affect their own political careers ...

Surprisingly, or not, we did have a couple of breaks this week, where Lord Coulsfield, in his independent review on the laws of disclosure of evidence in criminal cases, recommended there be a Disclosure Law, or at least rules on Disclosure which the Crown Office of course should obey and adhere to.

If the Crown Office ever adhered to justice and fair play, that would certainly be a first, so why on earth would anyone think they would change their way of doing things just because of a change in the Law ?

Wouldn't it be better to reform, and perhaps, replace the Crown Office with an institution which is actually transparent & accountable ? or is the idea of a workable justice system simply too much for some people in Government and in the Parliament to achieve ?

The issue of small claims limits, also surprisingly got some action, after 19 years, where Justice Secretary Kenny MacAskill announced a rise in the limits of a small claims action to £3,000, from the measly £750 which the Law Society of Scotland and legal firms had lobbied to be held so low for the past two decades - simply to force people to use a lawyer and pay exorbitant fees for trying to recover anything more than a £750.

I covered the reasons why the small claims limit had been kept artificially low for the last 19 years here : Small claims limits in Scotland restricted to £750 for the last 18 years by the legal profession for their own interests.

Howsoever, Scotland again fails to come up the standards of the rest of the UK, where the limit of small claims actions is £5,000. Why then, has the Scottish Government disadvantaged the Scottish public in this matter with a lower limit ? What is so different about us that we can't go in to court ourselves for a higher amount ? Could it be perhaps, more lobbying from the legal profession, who again are alarmed their business will be lost because people could simply do the work themselves ?

If you wanted to recover for instance, £2,000 you might have to spend £3,500 on a lawyer and court action to get it ... those are the kind of economics the legal profession loves, take your money for anything, and you lose every time. It's no wonder that even a sitting Lord Advocate tried to repeal legislation which was intended to open up the legal services market 20 years ago

On the subject of Lord Hardie's influence over the delay of the implementation of wider access to legal services legislation, surely there should be an inquiry into why the sitting Lord Advocate of the time, was allowed to influence and delay the implementation of sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, even going as far as to suggest, in his most powerful position, repealing those parts of legislation - or is this an issue perhaps our shiny new Scottish Government has been told not to touch by the ever so threatening judiciary ?

To round the week off, and to show yet again, how twisted the political system still is, our ex Justice Minister & Deputy First Minister, Jim Wallace, went off to the House of Lords, after suggesting the idea himself .. probably in fear of perhaps not getting the appointment ...

Mr Wallace, as Justice Minister, bears a significant measure of responsibility for the ills of the Scottish Justice system today, presiding over scandal after scandal, and keeping things working very smoothly for the legal profession, while ensuring it's victims, and the country at large, saw no reforms in the public interest whatsoever. In fact, Mr Wallace voted against reform time & again - and voted against the Legal Profession & Legal Aid (Scotland) Act 2007, being brought in on the side of the Law Society of Scotland to do his damndest to kill off the prospect of the Law Society losing the right to fiddle complaints against crooked lawyers ...

One of Mr Wallace's other poor examples public service, is the Judicial Appointments Board - which was supposedly a try at an independent & transparent appointments system, but in reality only amounts to yet another screening process for the legal profession to keep any potential scandal or dark past secret, of those who rise to the judiciary in Scotland. Taking a look at who actually sits on the Judicial Appointments Board, noting the usual suspects who proliferate themselves on a number of other Committees, does nothing to inspire trust or public confidence ... but .. where are the SNP on this ? how about some reform there too ?

Tinkering with the fringes of the legal system does nothing for reform .... so how long do we have to wait to see the right stuff with our politicians getting to grips with wholesale reform of Justice and cleaning up it's sins & injustice of the past ?

Following articles from the Herald on small claims limits and hopeful changes in the laws of disclosure :

Small claim limit rises to £3000

DOUGLAS FRASER, Scottish Political Editor

Legal disputes over small amounts of money are to be made easier under changes announced yesterday by the Scottish Government.

The limit for legal wrangles over goods, house repairs, holidays or bank charges to be settled through the small claims system is being raised four-fold, so that more of them can be heard without having to hire a lawyer.

Since 1988, the upper threshold for a small claim has been set at £750. Justice Secretary Kenny MacAskill announced yesterday that it will be raised to £3000 from January, while there will also be increases for other types of civil action.

Personal injury claims are to be removed from the small claims procedure, meaning all such claimants will require medical evidence and legal representation.

The raised threshold was welcomed by the opposition and consumer groups. They have long argued that there should be the easiest possible method for a broader range of such disputes to be handled in the relatively simple, quick and easy procedures, without having to take a risk on paying a lawyer and going to open court. However, there was disappointment that the threshold has not been raised further.

Mr MacAskill said: "Hard-working Scots who have perfectly valid claims are being denied accessible justice due to the existence of an artificially low small claims limit. It is now 19 years since the limits were last increased and I believe the time has now come to set more realistic limits.
‘This tackles the cowboys who move on after a botched job’

"These new limits will mean that many more people will be able to make use of the less complicated small claims system within the sheriff court to resolve such claims. People who in the past were prevented from pursuing a claim against a business or individual will now be able to do so without having to employ a lawyer with all the extra expense that entails."

The limit for action to be raised in the sheriff court instead of the Court of Session has been raised from £1500 to £5000. Above that level, disputes can go into the higher court.

The move was welcomed by the Scottish Consumer Council. Martyn Evans, its director, said: said: "We are delighted the Scottish Government has taken this decisive step to increase access to justice for people who buy goods and services. Every day people in Scotland buy computers, holidays, three-piece suites and other items that cost much more than £750. Now they will be able to seek legal redress against businesses which do not comply with the law, without having to face the choice of suing for less money than they are owed or paying a solicitor to go to court."

Julia Clarke, of the consumer lobby group Which?, said: "People will be able to claim for more of their cases of dodgy holidays or badly-built kitchens. This tackles the cowboys who move on after a botched job with no redress against them."

She said the English legal move, in recently raising the threshold for small claims from £750 to £5000, would have been preferable. The difference until now has meant some Scots taking their cases south of the border, using the law that lets individuals claim against companies in that firm's home town.

Opposition support for Mr MacAskill's announcement included Liberal Democrat Mike Pringle, who had been campaigning for nearly four years for the raised threshold. He also said it should be raised further to the level set in England of £5000.

Labour justice spokeswoman Margaret Curran said: "Labour welcomes the limit increase for small claims. The justice system must be accessible to everyone in society"

Amazing comment from Labour there ... since it was Messrs Digby Brown, a well known supporter of the Labour party, and the same legal firm involved in the downfall of First Minister Henry Mcleish over the officegate renting scandal, who had lobbied for many years as the media had previously reported .. to prevent any raising of the small claims limit ... now, onto the story on Lord Coulsfield's 'independent review' .. if those two words actually do mean something in Scots Law these days ?

Call for prosecutors to provide full details to defence lawyers


Criminal prosecutors should be legally bound to provide full information to defence lawyers in advance of a trial, the Scottish Government was told yesterday.

The call came from a retired judge who said the information should include material favourable to the accused, even if it weakens the Crown case.

The call came from Lord Coulsfield in a report commissioned from him last year by the previous administration.

Lord Coulsfield, who retired in 2002, was one of three judges who presided at the Lockerbie trial in the Netherlands. He was asked by the previous administration to review the law in the light of a 2005 ruling by the Privy Council which overturned the convictions of two men, James Holland and Alvin Sinclair, on the grounds of "non-disclosure".

His findings include a recommendation for legislation requiring the prosecution to have regard to "the over-riding requirement of a fair trial".

The legislation should provide a definition of a duty of disclosure, and require prosecutors to disclose to the defence "all material evidence or information which would tend to exculpate the accused whether by weakening the Crown case or providing a defence to it," said the judge.

This already happens in England and Wales and Lord Coulsfield said: "I do not see that there is any practicable alternative in the short or medium term."

Non-disclosure by the Crown is a major issue in some of the most high-profile cases in Scotland, such as that of the Lockerbie bomber Abdelbaset Ali Mohmed al Megrahi who earlier this year was granted leave to launch a second appeal against his conviction.

Kenny MacAskill, the Justice Secretary, said: "The government welcomes this positive and helpful report. Disclosure is vital because it is essential that the defence have all the necessary information available to ensure a fair trial.

"Effective disclosure also contributes to a more effective criminal justice system and to earlier resolution of cases. I am indebted to Lord Coulsfield for his careful analysis. We will shortly publish a consultation paper to invite further views."

Elish Angiolini, Lord Advocate, said: "The report marks a significant step towards achievement of the required degree of clarity in this complex area of law and practice."

Friday, September 07, 2007

Justice Secretary MacAskill critical of 'adversarial' Law Society complaints policy as new Commission takes the honest route

Kenny MacAskillJustice Secretary Kenny MacAskill admits Law Society complaints process is flawed. Justice Secretary Kenny MacAskill has made a startling admission on the negative policy of long enforced 'adversarial' complaints practices operated by the Law Society of Scotland, which are widely thought to have saved many solicitors with poor regulatory records from client complaints over many years.

The Justice Secretary's insight into the way complaints have been poorly handled against lawyers by the Law Society is crucial in that Mr MacAskill now recognises and agrees with his Ministerial colleague John Swinney's constituent, Mr Stewart MacKenzie, that the current 'adversarial' approach of self regulatory complaints handling by the legal profession is widely prejudicial against clients, and not in the public interest.

Justice Secretary K MacAskill to Cabinet Secretary J Swinney 30 August 07Justice Secretary Kenny MacAskill claims the Scottish Legal Complaints Commission will operate under an ‘inquisitorial’ approach to complaints. Kenny MacAskill : "We are very confident that the Commissioners will agree with Mr Mackenzie that an inquisitorial approach is the best way to establish /analyse all the evidence and is less likely to place the complainer at a disadvantage." A remarkable admission from the Justice Secretary, which indicates the necessity of a more open & honest policy of 'inquisitorial' complaints investigation via the new Scottish Legal Complaints Commission, formed as a result of the Legal Profession & Legal Aid (Scotland) Act 2007. This startling admission from Mr MacAskill on the subject of regulation of the legal profession, is a first from a politician in Government, and seems to indicate the new SNP Scottish Government is now beginning to recognise the incredible scale of regulatory wrongdoing by the Law Society of Scotland, which has operated this 'adversarial' policy directly against the interest of clients, but for the protection of it's own solicitors, for so long.

S.MacKenzie to J Swinney 3 July 07Cabinet Finance Chief John Swinney hears from his constituent on former SLSO Chief and now SLCC Chair Jane Irvine’s criticisms of Law Society complaints procedures. Mr Stewart MacKenzie's query to the Justice Secretary via Mr Swinney, points out references from the 2006 - 2007 Annual Report from the Scottish Legal Services Ombudsman (pdf), specifically the following, where Jane Irvine, the current, and last Scottish Legal Services Ombudsman makes damning references to the Law Society's complaints handling procedures : The relevant sections of the Scottish Legal Services Ombudsman's 2006 - 2007 report quoted in Mr Mackenzie's letter to John Swinney MSP : Page 11 : "the Law Society of Scotland disregards the fact that their dury is to investigate, not run adversarial systems. It is certainly unacceptable in a day where modern complaints handling systems demand open responses to expressions of dissatisfaction"

Page 13 : "The Law Society of Scotland's duty is to investigate service complaints. In addition it has a role in protection of the public against inadequate legal services. I see absolutely no justification therefore for continuance of the manifestly adversarial systems under which consumers are forced to define issues and prove what went wrong"

Confirmation if any were needed then, from the office of the Scottish Legal Services Ombudsman that the Law Society of Scotland does indeed, operate an 'adversarial' system of complaints handling policy, totally against the public interest, and which basically sets out to protect lawyers against client complaints at every turn.

Jane IrvineFormer Legal Services Ombudsman and now Legal Complaints Commission Chair Jane Irvine tagged Law Society’s complaints system as ‘adversarial’. At the heart of this matter, as the Scottish Legal Services Ombudsman mentions, are the adversarial complaints procedures & policy put in place, to force the client to prove each & every point at every turn, with no help from the Law Society or legal profession, no outside help from anyone or any independent organisation, while the solicitor facing the complaint has the full resources of his legal training, the Law Society of Scotland, and various other organisations such as the Legal Defence Union, Law Care, and many more, all at the solicitors disposal to kill off any chance a client has of obtaining redress.

These 'adversarial' complaints procedures, which have allowed many solicitors within the legal profession to escape client complaints, while building up disgraceful regulatory records, are the principle design of the Law Society's infamous Client Relations Office under the Directorship of Philip Yelland, where complaints also see regular intervention by the Chief Executive Douglas Mill himself, whose touch of a complaint can seemingly blight a member of the public for life.

Debating chamberHolyrood’s Justice 2 Committee were told of the Law Society’s ‘adversarial’ complaints system. Curiously, Mr Mackenzie informed the Justice 2 Committee LPLA hearings of the fact that the 'adversarial' approach to complaints handling benefited the trained & skilled lawyer & the Law Society of Scotland itself, while putting a complainer at a severe disadvantage. Mr Mackenzie's case, which was considered by the Justice 2 Committee in it's deliberations on the LPLA Bill, also saw a major skirmish between John Swinney & Law Society Chief Executive Douglas Mill, who contradicted the terms of his own memos relating to interference in negligence claims made by Mr Mackenzie against several law forms. Douglas Mill denying such interference as Law Society policy does not allow it, but John Swinney producing Mr Mill's own memo to contradict his claim of innocence ... which then saw Douglas Mill 'swear on his granny's grave' in a less than convincing denial of his actions, clearly reflected in the terms of Mill’s highly controversial memo.

As it turned out, Holyrood’s Justice 2 Committee failed to understand the issue of 'adversarial' complaints handling, and failed to insert adequate protections in to the LPLA Bill before it passed into Law, which now leaves the Law Society of Scotland with the advantage of retaining the 'adversarial' approach to complaints handling of conduct issues, while the Scottish Legal Complaints Commission will investigate service issues via the 'inquisitorial' route - widely seen to be more honest, transparent, and of benefit to the public.

John Swinney questions Law Society Chief Executive Douglas Mill over Law Society’s interference in claims against crooked lawyers :

You can read about the amazing confrontation between Douglas Mill & John Swinney here : The Corrupt Link Revealed - How the Law Society of Scotland manages client complaints & settlements.

Justice Secretary MacAskill, went on in his letter to Mr Swinney to respond on the issue of possible conflict between the Scottish Legal Complaints Commission's practices and those of the Law Society of Scotland, assuring :

"... the Legal Profession & Legal Aid (Scotland) Act 2007 gives the Commission significant influence over the professional bodies in relation to their investigation and prosecution of conduct complaints. We are confident that the Commission will exert its influence when it considers that the professional bodies are acting in a manner which is not considered 'fair or proper' "

Such an 'adversarial' complaints policy operated by the Law Society of Scotland, clearly in favour of solicitors, and prejudicial by design against the client - which the Justice Secretary now recognises the existence of, is wholly unacceptable in any regulatory system which begs to be transparent, accountable and independent.

Clearly such a remedy to this extreme divergence in regulatory policy between the co-regulators of the Scottish legal profession must surely be to remove any regulatory function from the Law Society of Scotland, as it continues to demonstrate it cannot handle regulation in both the interests of it's own member solicitors, and the public.

The time is now right to remedy these failings of the Law Society of Scotland, taking into account and resolving the many cases over the years, and victims, who have long suffered at the hands of such poor regulation operated by the solicitors regulatory body.

The challenge is now there for Mr MacAskill and the Scottish Government to take up, and see that Scotland, gets a trustworthy, transparent, accountable, and dependable legal profession where honesty and quality legal services will be forthright, and the interests & rights of both the client and legal representatives fully and equally respected without the prejudice, deception and protection that clients have so long been used to when being forced to deal with the Law Society of Scotland.