Friday, November 14, 2008

Non-lawyer rights of audience approved ‘with restrictions’ as Scottish Government continues to waver on access to justice reforms

Justice Secretary Kenny MacAskill will announce in the next week or so that Bill Alexander, Chairman of the Association of Commercial Attorneys, has finally been given rights of audience & representation in Scotland’s courts, the first time ever in Scotland, a non-lawyer (someone who is not a member of the Law Society of Scotland) has been able to break into solicitors monopoly over legal services.

This change in heart comes after the Justice Secretary sensationally blamed the Lord President for delays in processing rights of audience applications, a story which I previously reported here, along with video footage : Justice Secretary MacAskill blames Lord President for delays in ‘access to justice’ applications row

However, the expectations of a significant improvement of diversity in the public's ability to choose their legal representatives have been tempered by apparent protests and intervention from the legal establishment who are concerned about losing their long held monopoly over Scotland's multi billion pound legal services market.

Mr Alexander, who has fought a long campaign over some twelve years to gain rights of audience and widen the public's choice of legal representation will face severe restrictions on what areas of law he will be able to practice, and today, an unnamed source at the Scottish Government claimed that Mr Alexander's practicing certificate such as it is currently being worded, will only allow him to practice Construction Law - a very limiting field of representation which wont do much to widen access to justice in Scotland.

I have previously reported on Mr Alexander’s campaign to gain rights of audience & representation, which includes a Petition to the Scottish Parliament on the matter : Parliament to consider competition in legal services market as Scottish Government fails on access to justice reforms

MacAskill tight lippedSecretary Kenny MacAskill said today : "Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 came into force in March 2007. Since then there have been two applications, one by the Association of Commercial Attorneys and one by the Institute of Chartered Accountants of Scotland."

Mr MacAskill refused to comment immediately on questions put to him as to why it had taken several successive Scottish administrations a total of some seventeen years to implement the groundbreaking Sections 25-29 and particularly why a serving Lord Advocate, Lord Hardie in June 1997 intervened in the issue and apparently urged the repeal of the access to justice legislation which had originally formed part of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

You can read my earlier report on Lord Hardie’s intervention in the access to justice issue, and read a copy of his own letter on the matter urging the repeal of Sections 25-29 here : Former Lord Advocate Andrew Hardie revealed as major obstacle in removing lawyer-advocate monopoly on legal representation

Hardly a confidence building exercise on the part of the beleaguered Justice Secretary, who would do well to start taking the initiative in Scotland's ailing legal system, rather than the back seat driving method he seems to prefer, aloof from responsibility on all sorts of dire stories, from leaks of juror names, to unjustly withheld FAIs to even playing no part and having no thoughts on the Lockerbie bomber’s appeal ...

Mr MacAskill admitted there were severe restrictions being placed on the Commercial Attorney's application in a take it or leave it deal : "The Lord President and the Scottish Ministers considered that the draft scheme submitted by the Association of Commercial Attorneys met the requirements of the Act and the guidance subject to a few conditions. The Association has accepted those conditions and discussions are taking place to finalise the draft scheme."

John SwinneyJohn Swinney may have been misled by Mr MacAskill over terms of rights of audience applications. This 'take it or leave it' approach by Mr MacAskill and the Lord President to access to justice applications under Sections 25-29 is a marked contrast to Mr MacAskill's discussions during the summer of 2008 with his Cabinet colleague, the Cabinet Secretary John Swinney, where Mr MacAskill failed to disclose any such limits & conditions on areas of law to be set upon individuals or organisations applying to enter the Scottish Legal Services market :

Justice Secretary Kenny MacAskill to Cabinet Secretary for Business John Swinney 26 July 2007Kenny MacAskill to John Swinney : "You will be interested to know that the commencement of Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 came in to 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 choice in the supply of legal service providers."

I have previously reported on that leaked letter from the Justice Secretary to the Cabinet Secretary in an article which you can also read the entire Parliamentary debate on the matter here : Leaked letter shows conflicting view of Justice Secretary over legal services market reform

Final questions were put to the Justice Secretary on whether the Scottish Government will now make up to individuals for the lost opportunities of access to justice, which have in the words of some severely affected the lives of those who have tried to find legal representation outside membership of the Law Society of Scotland during the time that Sections 25-29 were held off the legislative books, however an eerie silence descended on the normally frank Justice Secretary as I suppose Mr MacAskill does not wish to admit culpability where culpability does seem to exist, given it was the Government which clearly held the legislation from public use.

Taking the honest route and admitting responsibility, and making the attempt to put things right for a lot of people, would surely be the ‘right thing to do’ in this case, Mr MacAskill ? I have suggested something along these lines before such as this : The polluter pays - Why cleaning up lawyers sins of the past would be good for the public & legal profession alike

In relation to the second application, coming from the Institute of Chartered Accountants of Scotland, a Scottish Government spokesman would only say : "The application by the Institute of Chartered Accountants is still under consideration." - however, if you wish to read what accountants can do to clients affairs, particularly a deceased client's estate, read this.

I for one, would warn against approving the ICAS application under Sections 26-29 as ICAS’ style of self regulation against crooked accountants is generally as bad as, or possibly worse than the Law Society of Scotland.

So we are left with an impression yet again, the Scottish Government is taking one step forward and four steps backwards in the policy area of promising to widening the public’s access to justice, by on one hand, allowing rights of audience applications to be made by individuals or organisations, then heavily restricting which areas of law can actually be practised in a ‘gun to the head’ style response, thus largely maintaining the present solicitors monopoly over legal services & access to justice in Scotland.

It seems quite apparent that once again, the legal establishment, who are solely interested in maintaining their long held monopoly over legal services in Scotland, are the driving force on what will happen next, rather what should be the case of the public interest, wider access to justice, and unrivalled consumer protection being placed above those usual interests of the legal profession’s annual profits.

It is also worth noting the two individuals who must pass any access to justice applications under Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, are themselves, members of the Law Society of Scotland … surely an issue which itself should give rise to a new independent method of considering and approving such applications to enter Scotland’s legal services market …

31 comments:

Anonymous said...

Its a complicated argument Peter but you covered it well.Perhaps there should be someone else more independent to consider rights of audience as you suggest.

Anonymous said...

seems unfair to say the least but no surprise - the lawyers dont want anyone coming into their lucrative money pot !

Anonymous said...

Kenny shouldn't be stumped for answers on Lord Hardie or the 17 year wait (itch?)
He is part of the same profession,has been for long enough.

Anonymous said...

So a handfull of commercial lawyers are now - very reluctantly - allowed to represent clients in Construction Law, and we are led to believe they 'agreed' to this severe restriction.

More likely it was a 'this or nothing' ultimatum from MacAskill, Swinney and their cronies.

I wonder if the law deems any-one required to participate in an unreasonable contract is subsequently bound by it. My research suggests the answer is NO.

its a long way .... said...

Neat blog speaks volumes about lawyers and it only goes to show u cant beat a jock politician to fuck up a legal system!

Anonymous said...

Looks like you got a scoop before the legal mafia got round to writing their own version in the hootsmon !

Does the phrase "You can have any colour as long as its black" spring to mind ?

Anonymous said...

Disappointing to say the least but no big surprises - the Law Society dont want anyone poaching their turf and MacAskill is happy to oblige on that by the looks of it.

I'm sure he will get a big pat on his fat back pocket.

Anonymous said...

Nice one highlighting the lies told to Swinney by MacAskill or is that just a lie by omission ?

Either way pretty grim stuff from oor Scottish Nats :(

Anonymous said...

I'm all for your conclusion Peter - never trust an accountant with your legal affairs but I would add you're much better off with a lawyer !

Anonymous said...

Limited to Construction Law ? What good is that ?

Kenny must have got a fat one for that !

Anonymous said...

Thanks for keeping the rest of us up to date on what's happening but its odd we have to come to a campaigners blog to read what the Law Society should be telling us well in advance !

I like you prefer ICAS does not get its way on its application.

Anonymous said...

"Mr MacAskill refused to comment immediately on questions put to him as to why it had taken several successive Scottish administrations a total of some seventeen years to implement the groundbreaking Sections 25-29 and particularly why a serving Lord Advocate, Lord Hardie in June 1997 intervened in the issue and apparently urged the repeal of the access to justice legislation which had originally formed part of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990."

What lie could Kenny come up with to hide the truthful answers to those two questions I wonder ?

You really do this blog justice Peter with your points.Bloody terrific !

Anonymous said...

I agree with another poster in that the Law Society should have made us more aware of the ICAS application.


Anyone feel like objecting to it ?

Anonymous said...

The Commercial Attorneys have no experience in dealing with multiple issues which clients bring to the profession and that is probably why Mr Alexander's application has been limited.

Similarly the ICAS application should be rejected on the same grounds and I would point out as you well know yourself Peter that accountants do not have the same safeguards as the legal profession itself.

Anonymous said...

oh dear ! do I see lawyers being just a wee bit condescending to others intent on getting into the business or is it just greed in not wanting to share their work ?

Anonymous said...

Read your story a couple of times to make sure I understood it.

I don't agree with the implementation of Sections 25 to 29 as the public will get a substandard legal service (even if you already think what is on offer currently is substandard).

Yes I am a solicitor and yes I do have a vested interest in seeing abs kept at bay but inevitably this will only cause more consumer angst and anyone with a complaint or disagreement will have to find legal representation to rectify what their 'alternative' legal representative didn't do.

Your point about what happened with you and the accountant is well made although its a shocking story to say the least.

Anonymous said...

You should be out reporting on the lawyer who is telling all to the cops about the other crooks involved in the Davinci theft from Buccleuch Estate down in sheep country !

Poirot said...

Interesting limitation and I agree from that letter to Swinney it seems unfair of MacAskill to bring this on now unless the restriction came from the Lord President and not the Government ?

Anonymous said...

To the person at 12.pm who said the following :The Commercial Attorneys have no experience in dealing with multiple issues which clients bring to the profession and that is probably why Mr Alexander's application has been limited.

You must be living in cloud cuckoo land to claim that when solicitors provide as bad a service as they do to us all !

http://sacl.info said...

Its easy to see the restricted certificates are there to stop this lot trying to sue lawyers on behalf of clients already robbed by crooked lawyers !

Anonymous said...

Whether the restriction came from Lord Hamilton or not is academic because MacAskill must have agreed to it otherwise he could have said no.

You people don't realise just how much hate the legal establishment feel for people on the street.They might take your money but most of those who are in the decision making positions at the likes of the Law Society and in government would see most of you sent to gas chambers if they had the power to do it.No kidding!

Anonymous said...

Ha ! and lawyers wonder why they are hated ?

What a bunch of rotten leeches and scum protecting each other.How much do you get for keeping competition out of legal services Kenny?

Anonymous said...

Clearly a specific definition of the 'multiple issues' cited by a previous contributor is required.

However, IF and it is a very big 'if', Commercial Attorneys do not have the experience of the 'multiple issues' clients bring to solicitors - How on earth are they to gain this experience if they effectively remain excluded from administering them?

Do come along...perleease!

Peter Cherbi said...

Thanks for all your comments and emails on this issue.

I do think there should be an independent commission or body to admit others into the legal services market and that much is certain after the way in which the Association of Commercial Attorney's application has been treated by the Justice Secretary and the Lord President.

The way to go about raising that issue must be through Holyrood, as the Justice Secretary has proved time & again he is not interested in the public interest when it comes to access to justice, he is merely interested in protecting the legal profession and its business market as it currently stands.

I note some of you have picked up on the differences between what has happened with regards to Mr Alexander's application and its restrictions compared with the tone of Mr MacAskill's letter back in 2007 to John Swinney, his cabinet colleague.

However, I wouldn't rely too much on Mr Swinney making an issue of that ... which of course is a pity to say the least, given his 'experience' in matters regarding the Law Society of Scotland for several years now on behalf of constituents.

# Anonymous @ 8.16pm makes a good point on where the restrictions on the applications came from. You are correct in that if they came from the Lord President, Mr MacAskill could have disagreed, although I doubt he would remain Justice Secretwary for much longer if he disputed the Lord President, who is probably in a much stronger position than any politician in Scotland could ever be, no matter who thinks what ...

Of course, only time and perhaps an FOI will answer that point, I suppose the likelihood is the restrictions did come from the Lord President's office ... or Mr MacAskill ...

In any case, we are seeing a fairly good example of business practice under the current Government ... which seems to be about protecting powerful monopolies at the expense of the public ... definitely not something I had imagined the SNP would have done prior to May 2007 ... and the dodging of the questions on whether the Government would make amends to victims of a lack of access to justice .. well .. I think that tells us that Kenny MacAskill is simply not interested in access to justice unless people are willing to cough up thousands of pounds to his fellow members of the Law Society of Scotland.

Anonymous said...

I doubt the Lord President will ever give up such a power - remember the judiciary for all their pretence are almost as democratic and transparent as any dictatorship !

Anonymous said...

Too much money involved in this racket for anyone else to be allowed a share and that's what MacAskill is there to protect ! Money for his pals in the legal profession !

Anonymous said...

Yes precisely,if these Commercial Attorneys aren't allowed to practice how are they going to get any experience in dealing with clients.

This is just about keeping the competition down and allowing the lawyers to corner the legal market once more

Anonymous said...

Well I'm not surprised one bit at this.There is no one currently in the legal profession who really wants to see competition especially in today's circumstances where firms are going to the wall.Clearly consumer choice and access to justice is well down Mr MacAskill's list of priorities.

Anonymous said...

The obvious question would now be what is Swinney saying about this ? He is the Minister for Enterprise isn't he ? Doesn't he have an opinion ?

Anonymous said...

If the banks can get huge bailouts from government then so can victims of these fucking shark lawyers.Keep at it Peter I think your site is very well balanced and spot on !

Anonymous said...

Yes I agree with the last comment too - its up to Government to step in if the lawyers are withholding payment for their stealing money which doesnt belong to them and about time too something happened on this!