Lord President ‘should be brought to account’ on McKenzie Friends as Scottish Parliament asked to support equality of access to justice

Scotland’s Lord President, Lord Hamilton. MCKENZIE FRIENDS for Scotland are back on the agenda next Tuesday 20 April as the Scottish Parliament’s Petitions Committee considers the latest submissions in what has become an increasingly bitter debate on the rights of party litigants, with Scotland’s top judge, Lord Hamilton appearing entrenched in his plans to heavily restrict the use & application of McKenzie Friends in Scotland’s civil courts, while consumer organisations & law reform campaigners lobby for a fair & equitable application of McKenzie Friends in Scotland comparable to their use for over forty years in the English courts system.

The latest response on Petition 1247 McKenzie Friends for Scotland, from Mr Stewart MacKenzie, the petitioner himself, accuses Lord Hamilton of misleading the Petitions Committee on several issues, including that of whether McKenzie Friends have or have not (definitely have not) existed in Scottish Courts prior to Holyrood considering the question of formally introducing McKenzie Friends to Scotland.

Stewart MacKenzie told the Parliament’s Petitions Committee : “Lord Hamilton states that he will “bring into force” McKenzie Friends in June 2010, following the implementation of an Act of Sederunt in May 2010. Lord Hamilton wrote to the Petitions Committee on 3rd November 2009 and stated that there was no need for the “introduction” of McKenzie Friends in Scotland, as it already existed and then added “contrary to the apparent understanding of the Petitioner”.”

“Why does Lord Hamilton therefore now say that he will bring McKenzie Friends “into force” in June 2010, when he has already informed the Petitions Committee in November in 2009 that it already existed and did not require to be introduced? Had the Petitions Committee accepted the content of Lord Hamilton’s 3rd November 2009 letter, the Petitions Committee could have closed this Petition and I consider therefore that it was plainly misleading of Lord Hamilton to say at that time to the Petitions Committee that there was no need for the introduction of McKenzie Friends in Scotland and consequently I would wish the Petitions Committee to raise this matter with Lord Hamilton.”

The petitioner’s letter also goes on to heavily criticise Lord Hamilton for planning to force the signing of certificates from those appearing in Scottish Courts as McKenzie Friends, a requirement which apparently does not in any other jurisdiction where McKenzie Friends are used. Lord Hamilton also intends an even stricter requirement that McKenzie Friends have an as yet undefined “relevant experience”, raising a further condition upon Scottish McKenzie Friends which does not exist elsewhere.

Mr McKenzie commented : “Firstly, McKenzie Friends in all other jurisdictions are for example, either a friend, a relative, an associate etc and none of these have, or are required to have, what Lord Hamilton now requires, being “relevant experience”. It is beyond question that he [Lord Hamilton] must explain himself in this regard and explain that if the McKenzie Friend applicant does not have the required “relevant experience”, does this mean that they will not be allowed to be a McKenzie Friend in Court?”

Mr MacKenzie went onto say the Committee should make enquiries of Lord Hamilton regarding the independent evidence or research base to justify his requirements of ‘relevant experience’ before an individual could be approved as a McKenzie Friend in a Scottish court.

Defining “Relevant Experience, Mr MacKenzie told the Parliament : “Relevant means “connected to the subject”, however a nurse, an office worker, a plumber or the wife/husband of the litigant,will not have “relevant” experience connected to litigation, the Courts or Law but they do have the ability to carry out the very simple and defined role of a McKenzie Friend by “passing papers, whispering to the litigant from prepared notes, taking notes, help with case papers and importantly, providing moral support”. Experience means “knowledge or skills which comes from practice”, however the concept and usage of a McKenzie Friend is not necessarily by using someone who has knowledge or skills from practising as a McKenzie Friend or has knowledge and skills in law or court procedures.”

Mr MacKenzie continued : “The definition of the word “friend” is a helper, a supporter and the concept and meaning of a “McKenzie Friend” is simply that and the Petitions Committee should make this clear to Lord Hamilton and convey their concerns over this matter.”

“I would therefore urge the Petitions Committee to conclude that Scotland must follow the criteria required for McKenzie Friends, which is adopted throughout the rest of the world and which does not require “relevant experience” or the signing of a certificate, otherwise Scottish consumers will be at a distinct disadvantage and will not enjoy the same rights as those in England and Wales.”

Consumer organisations Which? and Consumer Focus Scotland have both criticised Lord Hamilton’s stringent plans for McKenzie Friends, in earlier reports HERE & HERE

Mr MacKenzie also tackled the shifting descriptions used by Lord Hamilton on the issue, where the Lord President has often preferred to refer to the McKenzie Friend as a “Lay Assistant” instead of the universally accepted “McKenzie Friend”. Mr MacKenzie and those involved in the debate have raised questions over the “Lay Assistant” term, which appears to have a much reduced status in law than an actual McKenzie Friend.

Mr MacKenzie told the Parliament : “The process and procedure which Lord Hamilton now details in his 16th February 2010 letter, for bringing into force McKenzie Friends in June, refers to the words “Lay Assistant” and not “McKenzie Friend”. “McKenzie Friends” are so-called in Court jurisdictions from England & Wales to Northern Ireland, Canada, Australia and New Zealand. It is an internationally recognised terminology and I would urge the Petitions Committee to convey the strongest of views to Lord Hamilton that the distinctly Scottish term “McKenzie Friend” must also be used in the Scottish Courts system and not “Lay Assistant”.

“Additionally I would ask the Petitions Committee to bear in mind that litigants present and future, will do their research on “case law” for example, by researching “McKenzie Friends” and not “Lay Assistant”. We also simply cannot have a situation where a truly Scottish word such as McKenzie, as used in “McKenzie Friends”, is not used in Scotland’s own Courts system.”

My earlier report on Lord Hamilton’s plans for the Scottish version of a McKenzie Friend, which the Lord President preferred to call a “Lay Assistant” instead of the universally accepted “McKenzie Friend” can be viewed here : Exclusive : McKenzie Friends for Scotland ‘are go’ as Lord President yields to Holyrood access to justice petition for Scots court users

Forbidding the use of the term “McKenzie Friend” in a Scottish court, simply because some members of the judiciary wish to control the use of ‘courtroom helpers’ by the increasing numbers of legally unrepresented court users who cannot for a variety of reasons afford or obtain the services of a lawyer … well, that is simply not on …

An official from one of Scotland’s consumer organisations spoke today on the increasingly murky debate over McKenzie Friends.

He said : “There appears a market reluctance on the part of the judiciary to allow Scottish consumers the same rights & entitlements enjoyed by court users in England & Wales. The Scottish Parliament must intervene in this issue and safeguard the rights of Scots, ensuring equality of access to justice and the right to a fair hearing for all court users.”

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland