Friday, May 08, 2009

Battle to bring McKenzie Friends to Scotland continues as Holyrood investigates ‘access to justice’ proposals

Scots parliamentPetitions Committee told McKenzie Friends proposals must be supported. Earlier this week the Scottish Parliament's Petitions Committee was told that ending a 39 year peculiarly Scottish ban on assisted public access to justice in the Scottish Courts by allowing the facility of McKenzie Friends, would greatly enhance the legal rights & success of many members of the public who find themselves facing legal action or require the use of the Justice system but for whatever circumstances are applicable to their predicament, cannot afford or obtain legal representation to further their access to the courts.

Petition PE1247 - Bringing McKenzie Friends to Scotland, with support from Margo MacDonald MSP.

margo macdonaldMargo MacDonald stepped in to support McKenzie Friends Petition. Petition PE1247 : McKenzie Friends for Scotland, was admirably supported by Scotland's independent MSP, Margo MacDonald, who told the Committee that in civil courts, such as small debts & other cases, people can find it impossible to obtain legal representation, finding they end up in court having to represent themselves.

Speaking on the merits of McKenzie friends, Margo MacDonald went on to tell the Committee that in England & Wales, the system of McKenzie Friends had operated successfully for 39 years where individuals who cannot access legal services through a variety of reasons, can obtain the services of a McKenzie Friend, who can assist them during their court appearances where difficulties with legal procedure and other matters can lead an individual to be put at a considerable disadvantage when unrepresented by legal counsel.

robin harperRobin Harper MSP supports McKenzie Friends as common sense idea. Robin Harper MSP, of the Scottish Green Party, was first to support the McKenzie Friends petition, calling the proposal "such an obviously good idea & common sense idea that we must continue it and we should ask the Scottish Government directly whether it will introduce a McKenzie Friend facility in Scottish Courts and if not, why not, and will this matter be part of the 8th program of law reform to be held by the Scottish Law Commission".

nigel_donNigel Don MSP is Kenny MacAskill's Parliamentary Liason Officer. Nigel Don MSP entered the debate by informing the Petitions Committee that the introduction of the McKenzie Friend facility south of the border, “was not brought in by the British Government, rather it was simply allowed after it went to the Court of Appeal", this in reference to the original 'McKenzie Friend' case which started the whole concept, where an Australian, Ian Hanger QC, at the time, a Barrister, became involved in a case in the London courts, but whose qualifications in law in Australia did not allow him to practise as a barrister in London.

Ian Hanger was sent the brief by the firm of solicitors, Geoffrey Gordon & Co for McKenzie one day prior to the hearing. McKenzie was unable to afford legal assistance, didn't qualify for legal aid, and had not maintained consistent contact with Gordon. Hanger sat with his client to provide what quiet assistance he could from the bar table to a man representing himself. The trial judge asked Mr Hanger to desist from doing what he was doing and this became the basis of the appeal by Gordon against the judgment against McKenzie.

Mr Don went on in the debate to say he felt it was open to the court simply to allow McKenzie Friends in Scotland, and that a 'nod from the Lord President' following Lord Gill's soon to be released review of the Civil Courts system might be the way to go rather than the Parliament going through the legislation process to allow MFs to Scotland.

However, Margo MacDonald responded to Nigel Don's remarks by making clear that something more substantial needs to be done on the issue in Scotland simply because of the 17 year time lags in Scotland in implementing the likes of Sections 25-29, and with the incredible 39 year gap between Scotland & the rest of the UK on the issue of McKenzie Friends it is time for action.

Lord HamiltonLord Hamilton could give nod & wink to initiate McKenzie Friends but most feel political legislation is required. Certainly from my own experience in matters of law reform, I feel there must be a legislative process began on the issue of the introduction of McKenzie Friends in Scotland, given there has been such resistance to any access to justice reforms by the Scottish legal establishment, some examples of which are the 17 year restriction on small claims limits in the Scottish Courts, to some £750, where the rest of the UK had limits of £5,000 and of course, the 17 year lack of implementation of Sections 25-29 of the Law Reform (Misc Provisions) (Scotland) Act 1990, where Scotland's 'access to justice' legislation was kept off the books by an arrogant campaign from the legal establishment, bent on maintaining market monopoly over the public's access to legal services in Scotland.

Given the decades of delay in legal reforms in Scotland, can we trust the issue of McKenzie Friends to a nod & a wink from the Lord President, no matter how well intentioned it may be ? I feel not.

McKenzie Friends must be looked into by the Parliament, with at least an inquiry taking place, and ultimately questions being asked and answered as to why McKenzie Friends have been excluded from the Scottish Courts system for 39 years.

In an update to the McKenzie Friend proposal, Margo MacDonald asked a question of the Scottish Justice Secretary, Kenny MacAskill during yesterday's question time : Margo MacDonald: To ask the Scottish Executive whether it will introduce the practice of allowing a McKenzie’s friend into law courts. (S3O-6781)

Margo MacDonald's question to Kenny MacAskill on McKenzie Friends for Scotland brought a dithering response from the Justice Secretary, who seemed to be playing for time ahead of Lord Gill's Civil Justice review.

There is little doubt after watching the following extract of proceedings, that Mr MacAskill is not minded to reform access to justice by any measure of the term.

In response to Margo MacDonald, Justice Secretary MacAskill struggles with delay in mind ahead of Lord Gill’s Civil Justice review.

MacAskill tight lippedDithering Kenny MacAskill needs more than a push to bring in McKenzie Friends.After having watched Mr MacAskill's response to Margo MacDonald's question, I am convinced more than ever that Parliament must look into the issue of McKenzie Friends, hold an investigation and enact legislation which will ensure that McKenzie Friends be allowed in Scotland's courts, because without a doubt, if it is left to the legal establishment, McKenzie Friends will never come to Scotland, just as access to justice reforms will never come to Scotland unless someone outside the legal fraternity talks about it, raises the issue publicly and gets Parliament to do something - just as we all found with the Legal Profession & Legal Aid (Scotland) Act 2007.

Ian Hanger QC, speaking on the issue to the Scotsman newspapers said regarding the Scottish Parliament’s hearing of the McKenzie Friend Petition that he “would love to address them on the virtues of the McKenzie Friend.”

On asking Ian Hanger QC as to the merits of McKenzie friends, he said : “In our Federal Court the Act dealing with the judiciary under the Constitution is the Judiciary Act. S 55 prohibits representation other than by barristers and solicitors.The Federal Court therefore regard the McKenzie Friend as a useful adjunct to the court process.

Mr Hanger went on : “Once again, I spoke today to the most senior Federal Court judge in our State and he said that overall McKenzie Friends have been very useful. He said that there are cases where the litigant cannot afford a barrister or solicitor and the judge does not think that it is appropriate to ask the profession to act in the particular case on a pro bono basis (as it can do). Of course there will be McKenzie Friends who step out of line, but the judge has the power to do what the judge did to me - prevent the person sitting at the bar table with the litigant.”

On that note, I would think the support and testimony of the original McKenzie Friend, Ian Hanger QC, must be extremely beneficial to the McKenzie Friend petition itself and the rights of all Scots to further their entitlements of access to justice & legal services. I have therefore asked the Scottish Parliament Petitions Committee to ask Mr Hanger to speak on the merits of McKenzie Friends, as a matter of importance to the debate.


Anonymous said...

Err..... and why the deafening silence from the Petitioner's MSP Mr. John Swinney?

I understand Mr Swinney refused his constituent's request to address the committee on his behalf, very odd indeed.

Peter Cherbi said...

# Anonymous @ 3.05pm

You are indeed correct - Mr Swinney did refuse to attend the Committee on behalf of his constituent Mr Stewart MacKenzie, citing 'collective Ministerial responsibility' for his decision not to attend.

I think Mr MacAskill's reply to Margo MacDonald's question of yesterday, in the second of the two videos within the article show clearly Ministers are not minded to engage in any access to justice reform which does not come from the legal establishment itself, and that came out fairly well in Nigel Don's comments relating to how the concept of a McKenzie Friend came into being in the first place.

If things are left to Mr MacAskill and his colleagues, there will never be any proper access to justice reforms, and leaving the whole matter up to a nod or a wink from the Lord President surely has to be unacceptable as we all know how long it takes to get even a smidgeon of reform of the Justice system in Scotland.

The Petitions Committee would do well to invite Mr Swinney in to give a submission on his experiences in representing constituents with access to justice problems, which may well have been resolved by use of the McKenzie Friend facility ...

Anonymous said...

Has Kenny MacAskill had a lobotomy ?
Every time he's asked a legal question he retreats into unintelligible mutterings reminiscent of a heavily pregnant hippopotamus !

Anonymous said...

I agree with your conclusion Mr Cherbi.

McKenzie Friends in Scotland cannot be left up to the courts given the way they have always sided with the legal profession against any proposed reform.
I for one would like to hear explanations as to why McKenzie Friends have been kept out of Scotland for 39 years.
We are not talking about some error or the whole issue being overlooked - we are talking about an active policy by some in the legal world to undermine the rights of people to obtain representation before the courts - that deserves an investigation and answers as you say.

Good luck and keep up the good work !

Margo MacDonald 4eva ! said...

Just my opinion you understand but I think the lack of John Swinney contributed significantly to the credibility of the Petition and Margo MacDonald was (as she always is) simply magnificent.

We could do with a few more Margo MacDonalds at Holyrood and a few less MacAskills and Swinneys - of which there are far too many.

Anonymous said...

After all that effort from Margo and Robin Harper,MacAskill reduces the debate to ifs and maybes.Disgusting but it does show us the SNP are unfit to be trusted with anything legal.

Anonymous said...

Good write up as usual Peter.

I agree - you don't need Swinney in this.Margo did much better and I definitely think McKenzie Friend in a court is a good idea.

Keep going !

Anonymous said...


Anonymous said...

Excellent piece Mr Cherbi and I wish you all the best of luck for the petition's progress in the parliament.

Brilliant reporting on issues of law!

Anonymous said...

Very good.I had no idea about Mckenzie friend not being allowed in Scotland.
Is this more dark ages stuff in Scotland to suit the pockets of the legal fraternity ?

Anonymous said...

Very interesting Peter.

From the sounds of it I don't think Nigel Don is in favour of this petition and since I read your other report on his mortgage allowance and what he did to a previous petition I suspect everything he said came straight from MacAskill's mouth or pen.

Bravo for your efforts though and I hope you succeed !

Anonymous said...

I find it staggering that 39 years have passed on McKenzie Friends being used in England yet the whole issue has been kept out of the Scottish legal system and even the newspapers for all that time.
This just reinforces the widely held belief that Scotland is a dark oppressive place unless you are tagged to a disrespected profession such as lawyers or bankers who move ahead while the rest of the country is forced to live from day to day on government handouts.

Anonymous said...

This is a brilliant idea Mr Cherbi and I have to be honest - I can think of no better McKenzie friend than you given your views and knowledge of the legal profession !

Keep up the good work

Anonymous said...

I would like to tip you off on how they give public assistance to people who don't quilify. you qualify and all they have to do is have your information, forge you signature and walla, they think the system shows you are getting money when you aren't (or in my case I get no cash assistance what so ever) they just combine the case. I have complained to them but they all look the other way. there was a real interesting article in the watch tower about it. I think it ever quoted one of the 1timothy scriptures. I will have to let you know what isse but I think it is the latest non public issue of the watch tower and how they are afraid of getting caught. I hope they get busted for taking my cash assistance and paying people at the public assistace office to look the other way. well its dales ex girlfried that works there so that shouldn't be too hard to figure out carrie