'Control Freaks' at Law Society say “No” to McKenzie Friends as Holyrood submission signals resistance to Lord Gill's civil justice review

The Law Society of Scotland goes the ‘bloody minded route’ and tells Scots Parliament 'not to allow' McKenzie Friends in Scottish courts. The Law Society of Scotland has kicked off the Scottish legal profession's campaign of resistance against some of the recommendations to be made by Lord Gill in his forthcoming civil courts review, by telling the Scottish Parliament that McKenzie Friends should not be allowed in Scotland's courts.

This albeit predictable resistance from the Scottish legal profession to much needed civil law reform, comes despite the fact the facility that having a McKenzie Friend assist party litigants has proved so successful in England & Wales for FORTY years, it has lead to the practice being adopted in many other jurisdictions such as Australia, Canada, New Zealand and the USA, while being kept out of Scotland for no good or clear reasons.

The shock interference by the Law Society against expanding Scots entitlements of increased access to justice in our courts, flies in the face of the gathering momentum of Petition 1247 which was filed at the Scottish Parliament earlier in May 2009. The Petition, which aims to bring the facility of McKenzie Friends to Scotland's court system some 40 years after their introduction in England & Wales, will allow many Scots who do not have access to legal representation to share the success of thousands of litigants south of the border who since 1970 have used the extremely valuable facility of having an individual known as a "McKenzie Friend" to quietly and competently assist with the presentation of a litigant's court proceedings..

Law Society of Scotland 'do not see a requirement' for McKenzie Friends in Scotland. The Law Society of Scotland claimed in its submission to the Scottish Parliament's Petitions Committee today, that "The Committee do not see a strong driving requirement for the introduction of a Mackenzie friend facility in the Scottish courts. The current system allows a judge to consider whether or not it is appropriate for a litigant to have the assistance of a lay representative on a case by case basis." The Law Society then went on to grudgingly acknowledge there may be 'some benefit' of McKenzie Friends to court users in Scotland if they can't get a lawyer to take their case on : "There may be some benefit if a litigant cannot get legal aid and cannot afford a solicitor. The Committee acknowledge that Lord Gill (in his review of the civil courts) may make recommendations on the whether or not lay representatives may have a role. The Committee would welcome the opportunity of commenting further on the role of McKenzie friends once the review recommendations are available."

A legal insider who is unhappy with the Law Society's decision to oppose the introduction of McKenzie Friends in Scotland said : "Here we have more bloody mindedness from the control freaks at the Law Society where anything they don’t suggest themselves or is not within their direct control has to be opposed to the bitter end and at huge financial cost.”

He continued : "Why not have McKenzie Friends in Scotland ? They have been used in England & Wales for decades and haven't really impacted on legal business. If someone wants a McKenzie Friend by their side in court then let them have one. If they feel they need the services of a solicitor then they will approach one. The point is the choice should be there and it is not for the Law Society to tell people they can’t choose who they want with them in court."

A spokesman for one of Scotland's consumer organisations today branded the Law Society "greedy" and "bloody minded" over their opposition to the introduction of McKenzie Friends in the Scottish Courts.

She said : "The Law Society's opposition to McKenzie Friends being available to consumers in Scotland is ridiculous. It is laughable to suggest that our present civil justice system allows a judge to consider whether a litigant can have a lay representative assist them in court. There should be formal ground rules to set out court users entitlements rather than simply make a decision on a case by case basis, which is grossly unfair to litigants and the public at large."

She continued : "The Law Society are simply trying to protect their members business market from the threat of competition where if a litigant chooses to use a McKenzie Friend, in all likelihood they wont be hiring expensive legal representation which particularly in Scotland, doesn't always win the day in court as research has already shown."

"If consumers are faced with a choice of spending tens of thousands of pounds on poor quality legal services or hiring a McKenzie Friend for a few hundred pounds to help them present their own case that they know best, then I think you will find that many will choose to do away with their expensive solicitors and go down the McKenzie Friend route if they are confident enough of winning their own case.

Law Society tries to outmanoeuvre Lord Gill's impending civil court review recommendations by blasting McKenzie Friends petition at Holyrood. The opposition of Scotland's legal profession to the introduction of McKenzie Friends in our courts is no surprise to me. I expected as much after hearing the speech of Lord Gill at the Law Society's annual conference, where it was clear from the Lord Justice Clerk's comments that the money honey pot of Scotland's 'Victorian Justice system' model where legal firms have made millions from the complexity and aloof nature of Scotland's civil laws, would have to be significantly reformed. The Law Society of Scotland, basically being the legal profession's 'muscle' which maintains control over the current closed shop legal services market, and in effect, the legal profession's control over an individual's access to justice, cannot afford to allow such reforms, therefore a policy of undermining the proposals before they have been made, was inevitable.

As many have already pointed out, the Law Society of Scotland's attitude towards McKenzie Friends is more based on the fact that law firms & solicitors will lose out financially if consumers choose a McKenzie Friend, rather than throw away tens of thousands of pounds on the third rate legal services we are currently forced to rely on in Scotland. I know many people who would rather be party litigants with the help of a McKenzie Friend, than pay a few thousand pounds to a law firm who will probably string out their case for a few years, with no result at the end of it .. and why not .. why should ordinary Scots not have a choice to select their own legal representatives or legal assistance for their own case, when people in the rest of the UK can do so, and indeed, many other countries around the world ?

Testimony was given to the Petitions Committee earlier in May, by Margo MacDonald MSP, speaking on behalf of the McKenzie Friend Petition, which some readers may wish to remind themselves of by watching here :

Margo MacDonald speaks on the merits of introducing McKenzie Friends to Scotland’s courts.

Missing the deadline - Justice Secretary Kenny MacAskill has not decided to respond to the McKenzie Friends petition. While the Law Society of Scotland was not actually asked for their opinion on the introduction of McKenzie Friends, but gave it anyway, the Scottish Courts Service, Consumer Advice Scotland, and the Scottish Government were also asked for their opinions. However, the deadline of 10th August for responses has passed, and so far not even the Justice Secretary Kenny MacAskill has replied to the Petitions Committee, where today enquiries to Mr MacAskill's office were met with curt replies stating : "It is for the Cabinet Secretary to decide whether he wants to respond to this petition.". Mr MacAskill did answer questions from Margo MacDonald during Minister’s question time, back in May, which you can watch, here : Justice Secretary Kenny MacAskill replies to questions on McKenzie Friends for Scotland.

Major consumer organisations such as Which? support the introduction of McKenzie Friends for Scotland. While the Justice Secretary has oddly missed the deadline for replies to the McKenzie Friend proposals, there is ample support for the introduction of the invaluable service to Scotland's courts from consumer organisations such as Which?, Consumer Focus Scotland, several individuals and law reform campaigners such as myself, and even the UK's Ministry of Justice. You can view the written submissions to the Scottish Parliament's Petitions Committee on the McKenzie Friend proposals contained in Petition 1247 here : Written submissions for Petition 1247 (McKenzie Friends for Scotland)

Lord President of the Court of Session Lord Hamilton wanted delay to Parliament's consideration of McKenzie Friend proposals. Those opposed to the idea of rectifying the 40 year disparity between the Scots legal system and English Law, so far only seem to be the legal establishment itself in the form of the Law Society of Scotland, and a slight dithering from the Lord President, Lord Hamilton, who if he can't see that McKenzie Friends are introduced during the past 40 years (or at least during the years of his own tenure as a judge) I don't see any other way to expand Scots access to justice via the route of a McKenzie Friend other than introducing legislation to ensure there are specific rules and entitlements for all court users to avail themselves of the facility of using a McKenzie Friend if they so desire.

The Scottish Court Service and Citizens Advice Scotland were also asked today whether they had planned to reply to the Parliament's Petitions Committee on the issue of McKenzie Friends, however both had not replied by publication of this article.

You can read my earlier articles on the campaign to bring McKenzie Friends to Scotland HERE

Please support the ending of 40 years of discrimination for Scots access to justice, and help bring McKenzie Friends to Scotland’s courts.