Wednesday, September 10, 2008

Justice Secretary MacAskill blames Lord President for delays in ‘access to justice’ applications row

Justice Secretary Kenny MacAskill, in response to questions from David Whitton MSP on the subject of applications from legal groups seeking rights of representation to expand public choice and competition in Scotland's legal services market, has blamed delays of over a year in considering applications on ‘hearing back’ from the Lord President’s, Lord Hamilton's office.

Lord Hamilton‘Lord President to be told to get a move on’ Lord Hamilton is blamed by the Justice Secretary for delays in applications from non-lawyers for rights of audience & representation of the public in Scotland’s Courts system …

Justice Secretary Kenny MacAskill - Delays and buck passing - an attempts to save solicitors monopoly of legal services ?

Association of Commercial Attorneys application for rights of audience

2. David Whitton (Strathkelvin and Bearsden) (Lab): To ask the Scottish Executive what progress has been made in processing the application from the Association of Commercial Attorneys for third-party right of audience in Scotland's courts under the provisions of sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. (S3O-4076)

The Cabinet Secretary for Justice (Kenny MacAskill): I acknowledge the attention that David Whitton has given to this issue on behalf of those who are involved, including his constituent. He has submitted previous questions and has engaged in correspondence on the matter.

Mr Whitton will know from the inquiries he has already made that the association recently clarified its status by incorporating itself as a limited company and submitted a revised draft scheme in late June. I have now completed my consideration of the association's application and, as the process requires, I have passed my views to the Lord President. I will ensure that Mr Whitton continues to be kept informed as to progress and the outcome.

David Whitton: As the cabinet secretary said, there has been correspondence between us on the matter. When he wrote to me in June, he commented that the provisions had been in place for a year. It is now over a year since the association made its application. However, there seems to have been a flurry of activity since I lodged my question last week.

Mr MacAskill said to me previously that he would judge the application on its merits, despite his prejudiced published opinion. I now ask him when the decision will be made on the vital matter of third-party representation in Scotland's courts. Can he get in touch with the Lord President's office to persuade it to get a move on as well?

Kenny MacAskill: I cannot give a definite date, as it will depend on hearing back from the Lord President's office. I advise Mr Whitton—as I did in my initial answer—that we have submitted our position to the Lord President, who will have to consider matters. I am sure that he will do so expeditiously. I am advised that he is currently on holiday—doubtless taking a well-earned rest—but I am sure that he will deal with the matter promptly on his return.

The very poor performance by Justice Secretary Kenny MacAskill under questioning over the reluctance of the Scottish Government to open the legal services market up to those applying under the existing legislation, certainly shows there is no appetite on the Scottish Government’s part to serve the public interest and give greater choice and variety to the Scots public in legal representation.

Mr MacAskill was asked at one stage during the questioning to contact the Lord President’s office “to persuade it to get a move on” … only to be met with a reply of further delay and without any definite date …

This all goes contrary to a letter from the Justice Secretary Mr MacAskill to his Cabinet Colleague John Swinney, last year, which led everyone, including Mr Swinney and the Scottish Parliament to believe a very different approach was being undertaken to such applications under Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 :

Justice Secretary Kenny MacAskill to Cabinet Secretary for Business John Swinney 26 July 2007You 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."

MacAskill tight lippedJustice Secretary Kenny MacAskill over a year ago told Cabinet Colleage John Swinney I hope this reassures you that action has now been taken to increase consumer voice in the supply of legal service providers."

John SwinneyCabinet Secretary for Finance John Swinney remains to be reassured over one year on from Mr MacAskill’s now laughable, albeit bogus claim of “increased consumer voice in the supply of legal service providers”

Importantly, the delays and unreported constant refusals of such applications for rights of audience & representation by Mr MacAskill and the Lord President highlight the dangers of having two individuals in charge of access to justice in a democracy.

It is the case, sadly, that two men, and a private self governing institution control you, the public's access to justice and legal services in Scotland.

The two men in question are Justice Secretary Kenny MacAskill and the Lord President, Lord Hamilton. The self governing body is of course, the Law Society of Scotland which acts for the legal establishment to protect itself and its members from any changes not in its interests.

Those same two men, Justice Secretary Kenny MacAskill, and the Lord President, Lord Hamilton, are or have been members of that same private self governing institution, the Law Society of Scotland, whose purpose for decades has been to keep monopoly control of the public's access to legal services by successfully campaigning to keep access to justice legislation out of the public's reach for some seventeen years.

You can read just what kind of tactics the legal establishment have used to thwart competition in the legal services market in relation to access to justice reforms contained in the Law Reform (Misc Provisions) (Scotland) Act 1990 here : Lack of access to legal services in Scotland

Here are a couple of earlier reports also relevant to today’s story :

Leaked letter shows conflicting view of Justice Secretary over legal services market reform

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

Surely in view of the difficulties those who currently control access to justice in Scotland seem to have in opening up the legal services market to competition, the issue should be passed to either a new independent body created for that purpose, or a Parliamentary Committee to ensure such applications are dealt with independently from the legal profession itself, and that effective, transparent and accountable procedures are established for opening up Scotland’s legal services market to non-lawyers sooner rather than never.


Anonymous said...

Brilliant story Peter.After 1 year Kenny is still passing the blame to just about everyone else over his own bloody failure on this.
Get some reaction from Swinney.
If he says nothing he looks like an accomplice too!

Anonymous said...

Wow nice Justice Minister.Blames everyone else but oh wait he's a lawyer anyway so that would be in line with expectations!

How does the good Lord feel about being dragged into it?

Anonymous said...

I think it will be the Lord President who tells MacAskill to get a move OUT.

So much for Scotland being a democracy!

Anonymous said...

Keeping the jobs for the boys Mr MacAskill???

Anonymous said...

No reaction from Mr Swinney?
I thought he would have at least condemned his colleague for being the lying irresponsible toad he is!

Anonymous said...

I wouldn't trust any of those characters to open up access to justice because they all know if they do open up access to justice most of their careers will be over.
Scotland needs a cleaning root and branch and starting with Kenny MacAskill would be a good idea.

Anonymous said...

A year on and MacAskill certainly sounds like a liar !

Keep up the good work Mr Cherbi !

Anonymous said...

Clearly both Hamilton and MacAskill are determined to continue delaying the application of any legislation which might endanger the monopoly of the Law Society of Scotland.

Time now for the Scottish Consumer Council to live up to its name and follow the example of others by lodging its own 'Super-Complaint' against those determined to obstuct the Scottish Public's access to justice.

Anonymous said...

Looks like they are all blaming each other in the hope of getting away with it.
Keep highlighting this stuff Peter.Something really needs to be done about these thugs who control our lives and I do like your idea about taking control away from both of those waxworks and giving it to the parliament.

Anonymous said...

A very interesting story you have here Mr Cherbi.
It would appear Alex Salmond's Ministers are lying to each other in public and are content to do so.Why has John Swinney done nothing about this.Is he content to sit back and allow Kenny and Lord Hamilton to corner up legal services for themselves?
Why has Alex Salmond done nothing about his Ministers so obvious misconduct?
Clearly if this is happening on this issue its happening on others and a Government can't be based on lies now can it.

Anonymous said...

MacAskill should be sacked for his mismanagement of justice and there should be an investigation into what happened here.
Good luck with your work Mr Cherbi.I think you should be put in charge of complaints against lawyers!

Anonymous said...

Bunch of liars the lot of them and all tarred with the same legal mafia brush.
Why don't they just start burning people at the stake in Scotland?Lets face it they could get away with it because you are all a pretty backward bunch allowing these assholes to rule you into oblivion

Anonymous said...

Would you work for £91 an hour Peter ?

Legal fees row 'could hit trials'
Scales of Justice
A panel sets fees for barristers for some of the most serious cases

Major trials could be delayed because barristers are refusing to work for £91 an hour, it has been warned.

Lawyers in England and Wales are boycotting a panel set up to decide pay rates in the most serious court cases.

Criminal Bar Association chairman Peter Lodder QC told the Times at least five trials had already been affected and more could be hit in the coming weeks.

The Ministry of Justice said it would not expect any cases to be delayed for "lack of an appropriate advocate".

Mr Lodder said the rates of pay for Legal Aid work being offered by the Very High Cost Cases (VHCC) panel for preparation work leading up to a trial ranged from minimums of £70 for a junior barrister to £91 for a QC.

He told the Times: "Society as a whole has an interest in seeing that these cases are properly funded.

"If barristers won't do this work, then the whole ethos of serving the public suffers - as does the reputation of the criminal justice system."

'Not fat cats'

Mr Lodder said a barrister would receive only about half the fee, after deductions such as overheads, expenses and tax.

He added: "You might be better off buying a pair of pliers and working as a plumber. This is our livelihood and most barristers are proud of the work they do.

"And contrary to public conception, these are not all fat cats - few barristers doing these high-profile cases earn a lot of money."

Among the cases reported to have been affected is the trial of a 17-year-old accused of the murder of Rhys Jones in Liverpool.

However, the panel was said to have made an exception for the defendant and Merseyside Police and Merseyside CPS say they know of no delay to the case, which is due to begin on 2 October.

Mr Lodder said defendants in serious cases may have to be released on bail because of the row, as they can only be held in custody for a maximum of 112 days between committal and the trial arraignment.

A Ministry of Justice spokesman said: "Solicitors have told the Legal Services Commission that they expect to be able to find counsel of the requisite experience to act in very high cost cases.

"The establishment of the Very High Cost Cases panel, following a competitive tender, was part of a balanced package of reforms to put the legal aid budget as a whole on a sustainable footing, which was well understood by the Bar."

Anonymous said...

Hi Peter.

You are spot on as usual.The power to control admission to the legal services market should be given to an elected body in parliament and not left with two or would it appear to be one individual as it appears to be with the Lord President.

Anonymous said...

More would have been said about this in the media if it hadn't involved lawyers and their cosy monopoly.

Maybe we need some more less cowardly newspapers in Scotland ?

Anonymous said...

This Lord President can even approve Law Society changes to the law and I take it he will be a Law Society member too !!

You need a big change north of the border Mr Cherbi.

Solicitors (Scotland) (Industrial Action by Solicitors) Practice Rules 2003

Rules dated 27th June 2003, made by the Council of The Law Society of Scotland and approved by the Lord President of the Court of Session under section 34 of the Solicitors (Scotland) Act 1980.

1.—(1) These rules may be cited as the Solicitors (Scotland) Practice Rules
(2) These rules shall come into operation on 1st September 2003.

2.—(1) In these rules, unless the content otherwise requires:—
‘‘Courts’’ means the civil and criminal courts in Scotland, the House of Lords, the Judicial Committee of the Privy Council, the Court of Justice of the European Communities and the European Court of Human Rights.
‘‘dispute’’ means a ‘‘trade dispute’’ as defined in section 29 of the Trade Union and Labour Relations Act 1974.
‘‘Industrial action’’ means an act done or taken by a solicitor in contemplation or furtherance of a dispute.
(2) Words and expressions defined in the Solicitors (Scotland) Act 1980 shall, unless the content otherwise requires, have the same meanings in these rules.
(3) The Interpretation Act 1978 applies to these rules as it applies to an
Act of Parliament.

3. Subject to rule 4 hereof, a solicitor may take industrial action.

4.—(1) Notwithstanding that a solicitor is taking or has taken industrial action, he will (a) fulfil his professional duties to the courts or to the Scottish Parliament and to the Parliament of the United Kingdom of Great Britain and Northern Ireland, and (b) fulfil any personal obligation undertaken by him other than an obligation which is imposed upon him under the terms and conditions of his employment.
(2) Notwithstanding that a solicitor is about to take, is taking or has taken industrial action, he will take all reasonable steps open to him to secure the consent of the appropriate body organising such industrial action to his acting as a solicitor (a) where a failure to do so could result in danger to any member or members of the public and (b) where a failure to do so would cause serious damage to a party other than his employer.

Anonymous said...

Isn't it a bit late to tell the Lord President to get a move on after a year??
Who in their right mind would believe they are that sloppy anyway?

Anonymous said...

Very hard to accept MacAskill's explanation and no doubt Mr Whitton will move for an investigation as to why he along with the rest of us and even the deaf Mr Swinney have been MISLED.

Anonymous said...

The things people do for money and to keep it for themselves - thats what this is mostly about.Kick out the Law Society and get on with an open market strategy

Anonymous said...

MacAskill and Swinney are self serving politicians uninterested in anyone except themselves and their careers- that is why nothing more has been said on that pack of lies wrapped up as a letter.

Lord Hamilton should control nothing.He is a Judge and that should be it.

Anonymous said...

This story comes as no surprise to me Mr Cherbi.I have been writing to Mr MacAskill for the past 6 months over the failure of both the Law Society and the Scottish Legal Services Ombudsman to properly investigate my complaint against my solicitor who has conned me out of about twenty thousand pounds for losing a case my senior counsel always insisted they would win.They lost because he failed to supply the court with medical documents I had given him from the very start and which had been discussed with counsel during our first meetings before the case began.
Mr MacAskill is doing what he knows best which is nothing.

Anonymous said...

Why should the Lord President be involved in admissions to the legal services market.

Surely this should be given to some kind of independent body as you suggest rather than left in the hands of a few people with no interest to allow anyone into their own kingdom.

Anonymous said...

A very interesting take on the legal world Mr Cherbi.
You better watch this Lord President or whoever he is doesn't start sending out the famous death squads to get you all.

Anonymous said...

Mr Cherbi I have read your blog and passed it around our legal team.I am interested to know your thoughts on the firm of Balfour & Manson from Edinburgh.
The Scottish Government recommended them to us to conduct commercial litigation on our behalf in Scotland.I wonder what your opinion of that would be ?

Anonymous said...

Sack MacAskill and this Judge from their positions.
MacAskill looks short of a buckfast in his appearance in the clip !

Anonymous said...

As someone with past experience of the normally reliable firm of Balfour and Manson I would advise you to look elsewhere - and not at Simpson and Marwick.

Anonymous said...

I'm not surprised this hasn't appeared in the newspapers because who wants the Lord President knocking on their door with his mace?
You definitely have a problem in Scotland with all these lawyers and judges running the show.I'm not surprised either that Scotland is not well regarded in international legal circles - despite what your idiot 'government' would have you all believe up there.
Time to grow up and get yourselves a legal system lads?

Anonymous said...

I agree Balfour and Manson should be avoided.A friend of mine went to them for advice on a medical claim and they tried to ruin the case from the very start.They are not to be trusted by anyone.

Anonymous said...

Interesting day at work.Your name came up along with this blog.The Law Society are about to announce their new Boss after the cloning results from Douglas Mill's DNA.

Good luck.Nothing will change in Scotland unless someone rolls their sleeves up and does a bit of you know what.

Peter Cherbi said...

Thanks for all your comments and emails on this article. I will get back to those of you who have provided details of cases etc in the next few days.

To the recent poster who asked about the legal firm of Balfour & Manson in Edinburgh, Scotland. I would certainly not recommend them to conduct any legal business whatsoever.

If you have the chance to avoid conducting litigation or legal business in Scotland, take such matters elsewhere, perhaps to the English courts, where you may have a better chance of not being ripped off by your legal teams.

I am interested to know why the Scottish Government is recommending particular legal firms for business ... perhaps you could contact me with further details of that. I would hazard a guess that while they may be recommending legal firms to people, they wont be telling them just how poor their client service records really are ...

I certainly would also avoid Simpson & Marwick as another comment suggests ...

Anonymous said...

I share your opinion on using lawyers Mr Cherbi.I don't think any of them can be trusted by clients and often they end up doing more damage to their own clients than whoever is supposed to be on the receiving end.

Things must be bad in Scotland if you have to recommend taking your cases to English Courts!

Anonymous said...

Mr MacAskill's dire performance as Justice Secretary should be enough to convince most people the SNP are not serious about any decent Justice reforms for ordinary people

Anonymous said...

Thanks for your frank views Mr Cherbi.

You win.We will avoid B&M.

Anonymous said...

Swinney's do nothing approach to this suggests he is part of the whole thing himself and doesn't really care either way.

Too much money involved probably and Swinney will be on just as short leash from the lawyers as MacAskill so obviously is.

Anonymous said...

The sad fact is that as long as the Law Society of Scotland are in the back pocket of business - and every Scottish Solicitor is pleased to rely upon the disgraced insurance provider Marsh for their Professional Indemnity Insurance without which they cannot practise - there is no point in anyone employing a Scottish Solicitor, for business or any other purpose.

wee rab said...

I'm pleased to see people are waking up to the fact they shouldn't touch any of these thieving lawyers with a barge pole.
Lets all do their business in.They are just a bunch of rip off merchants anyway and who needs leeches and scum in society!

Anonymous said...

The obvious solution is to bring Cherbi onboard so he can't shout about lawyers anymore.Did anyone actually think of that or is pride hurting too much?Idiots.

Anonymous said...

Well done on the video of MacDrunkfast blaming Hamilton who will probably blame MacDrunkfast back.

I wonder how that went down in chambers.

Anonymous said...

I used to work at Balfour & Manson.I wouldn't advise anyone to use them after what I saw going on there.
Cherbi is definitely correct on that one and by the way B&M were told to dispose of your mum's case.Surprised?I hope not!

Anonymous said...

Good comments the lot of you.I personally think lawyers should be taken to the nearest tree and @@@@ after what they did to my sister's house purchase.
Anyone who hates lawyers gets full marks from me.Keep up the good work!

Anonymous said...

Funny how these comments have turned into a slagging match against Balfour & Manson.

Well here's a tit bit for you Mr Cherbi,Balfour & Manson are v'ing Simpson & Marwick on a case which I wont name but if the defender and pursuer knew what was going on behind their backs they would probably pull the plug on their legal teams.

Lets hope someone sticks their nose into things hint hint!

Anonymous said...

Don't forget the Lichtenstein connection between some lawyers in Edinburgh !

Anonymous said...

Swinney MacAskill and Hamilton have a nice little game going on called "Fuck Scotland we want to keep the money for ourselves".Thats the real reason these lying bastards are getting away it.

Good luck exposing the whole thing.

Anonymous said...

Very intriguing this story.It looks like Scotland voted in a party dedicated to protecting the legal profession rather than actually doing anything for people.Let that be a lesson to you all for next time around.

It was quite funny to Salmond attacking the LloydsTSB HBOS deal though.If it had been RBS it would have been ok,right?Its just that little bit too English for the SNP business plan?

Anonymous said...

I would suggest suing Lord Hamilton and MacAskill for keeping people and organisations out of the legal services markets.This is clearly being done as protectionism for the Law Society which as you point out has Macaskill and Hamilton as current or previous members.They are not impartial enough to control who enters the legal market.

Anonymous said...

The comment about Balfour & Manson v Simpson & Marwick.If this relates to screwing both their clients for increased fees I can tell you this is one of the most common habits in the legal profession.Every day lawyers call each other up and string your cases out a bit longer just to make more money for themselves.If only the public would wake up and shake themselves from this legal nightmare this scum have created and push for the legal advice market to be opened up then half of these problems wouldnt exist because most of these overcharging robbers would go out of business and that would be bloody great for Scotland !

Anonymous said...

I don't think Swinney or MacAskill gives a toss about anyone except themselves and their precious jobs.
If it had been otherwise, you wouldn't have been writing about it now because the whole issue would have been sorted out.As simple as that.

Anonymous said...

Interesting if slightly inflammatory comments from some of you but if Salmond's Ministers are lying to each other how cam the rest of us trust them?

Keep up the gutsy reporting Mr Cherbi.

Anonymous said...

Lawyers looking after their own and stringing clients along on cases just to make more money - its an old story of the legal profession.I think probably most lawyers are doing it and they know they can get away with it because of the way they are regulated as Mr Cherbie points out.So the best thing is to do away with the Law Society and MacAskill and this Lord President and let market conditions force competition and lower prices for legal work.

Anonymous said...

Some legal firms (wont say which but they are mentioned here) have been known to hire PIs to follow people who are involved in cases against other lawyers,bug their phones,turn their trash,and play havoc with their lives.

Maybe some of you should be thinking about doing the same back and fight fire with fire.

Remember everyone has something to hide and some of these lawyers you are writing about are literally lower than what comes out the back end of a rat.

Get to it folks.