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

Secretary 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 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 :

Kenny 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 …