Saturday, May 08, 2010

Questions over Holyrood's exchanges with Lord President as Scots McKenzie Friend law to be heard at Court of Session Rules Council meeting

Debating chamberHolyrood Committee’s exchanges with Lord President questioned. QUESTIONS have been raised over the outcome of Tuesday’s Petitions Committee hearing on Petition 1247 (McKenzie Friends for Scotland) after it emerged late yesterday that while two members of the Petitions Committee had raised important points to be clarified with Scotland’s Lord President, Lord Hamilton, over the proposed Act of Sederunt to allow McKenzie Friends in Scottish courts, the actual letter sent from the Petitions Committee to the Lord President simply stated "Could you provide an update to the Committee once the Act of Sederunt has been brought into force".

This latest extraordinary turn of events in the campaign to bring McKenzie Friends to Scotland’s courts, a non-lawyer courtroom helper which unrepresented party litigants have been successfully using in England & Wales for the past forty years, comes after last Tuesday’s Petitions Committee hearing concluded its latest deliberations on the McKenzie Friends petition by stating on the Scottish Parliament’s Petition 1247 web page : “4 May 2010 : The Committee agreed to write to the Lord President of the Court of Session seeking a response to specific points.” after two of the Petitions Committee members, MSPs Nanette Milne & Nigel Don raised the thorny issues of the usage of the term “McKenzie Friend” and the question of whether a McKenzie Friend could be remunerated for their services – both key points the Lord President has proved highly resistant to discuss or implement.

Scottish Parliament Petitions Committee 4 May 2010 : McKenzie Friends should remain McKenzie Friends in Scotland (click video to watch)

The transcript of Tuesday’s proceedings on McKenzie Friends :

nigel_donNigel Don MSP (SNP) Nigel Don, member of the Petitions Committee & Parliamentary aide to Justice Secretary Kenny MacAskill raised two significant points the Lord President had failed to resolve over the year long battle to bring McKenzie Friends to Scotland’s courts. Mr Don initially praised Lord Hamilton “for getting on with things”, going onto firstly tackle the question of a ‘certificate’ which Lord Hamilton initially proposed should be required for all potential McKenzie Friends to sign prior to their acceptance by the court – a move heavily criticised by politicians, law reform campaigners and even several consumer bodies including Which? & Consumer Focus Scotland.

Nigel Don said : “I am probably not the only one who feels slightly confused about where we have got to. The issue seems to be moving so fast that I am not sure on which side of the net the ball has ended up. However, we should commend the Lord President for getting on with things and for explaining, in his most recent letter, some points that we did not get round to discussing during our previous meeting due to shortness of time.

“I want to raise two points about the suggested rules in the Lord President's letter of 19 February, which predates our previous meeting. Paragraph 5 of that letter states: "The certificate should ... confirm that the lay assistant has no interest in the case".

“I get the impression from the Lord President's subsequent letter that he sees no problem with the lay assistant being a family member or friend of the litigant. Therefore, I draw the conclusion that the suggestion that the lay assistant should have "no interest" should be translated as "no greater interest than the litigant". That is what I would have expected, so I have no problem with that. However, I thought that I had better put that on record in case I am wrong.”

Mr Don went onto raise the equally thorny issue of whether a McKenzie Friend can be paid for their services, an issue I reported on in mid-April, revealing actual case law from the English Family Courts division, which supports a McKenzie Friend’s entitlement to charge for their services. Nigel Don at the April hearing appeared to support the Lord President’s resolute position that no McKenzie Friends should receive money for their services, however Mr Don now appears to have changed his position substantially.

Nigel Don continued : “Secondly, the Lord President's letter of 19 February states immediately thereafter that the McKenzie friend—or lay assistant, as we should perhaps now describe him—is "to receive no remuneration for his or her services in any form".

“I can quite understand why the Lord President should take that view, but there is good reason to believe that that might not be the best view. Given that many of those who might act as lay assistants might be paid by a charity such as a citizens advice bureau to help those who need help, it seems a step too far to assert that the lay assistant should receive no remuneration from anywhere. I can well understand that the Lord President and his colleagues do not want, as it were, second-class lawyers hawking themselves around as McKenzie friends, but I am slightly concerned that the suggested rules go a bit too far.”

“Can we ask the Lord President to consider that point, so that those with experience of the subject who could well help people are not required to act completely for nothing when a charity might support them ?”

nanette_milneNanette Milne MSP (Scottish Conservative) Nanette Milne, the Conservative MSP member of the Petitions Committee joined the debate, raising the highly contentious issue of the Lord President’s stubborn resistance to using the term “McKenzie Friend” in his plans for bring in the Act of Sederunt to allow, “Lay Assistants”, as Lord Hamilton would rather call “McKenzie Friends” into Scottish courts. Nanette Milne said : “In addition, the petitioner obviously still has concerns about the terminology of "lay assistant" rather than "McKenzie friend". Given that Which? magazine and Consumer Focus appear to use only the term "McKenzie friend", can we perhaps press for the retention of that term ?”

Lord Hamilton judicialScotland’s Lord President, Lord Hamilton. Lord Hamilton’s hostility against using the term “McKenzie Friend” – which is accepted in most international jurisdictions where the McKenzie Friend is used, has left many involved in the Scottish debate on McKenzie Friends questioning why the Lord President apparently feels even after forty years, that Scotland should, not join the rest of the world in allowing what is a uniquely named and internationally recognised courtroom helper to assist the growing numbers of unrepresented court users in Scotland who find themselves unable to obtain legal representation.

McKenzie Friends Which researchWhich? reported that 85% of Scots would like to see McKenzie Friends allowed in our courts. In an earlier report on the McKenzie Friend petition, I revealed the Lord President had put forward several reasons to the Petitions Committee why he felt the term “McKenzie Friend” should be swapped with the term “Lay Assistant”, where Lord Hamilton alleged Scots were too ignorant to know what a McKenzie Friend actually is, this despite research & polls taken by consumer organisations such as Which? who reported that 85% of those questioned during recent research carried out by Which? on Scottish Legal Services thought it would be a good idea to allow McKenzie Friends in Scotland’s courts.

Petitions Committee Convener Frank McAveety attempted to draw the debate to a close with a continuance of the petition, although one important issue raised by the Committee Clerk remained, namely that of whether the Committee “should push the Lord President to defer consideration of the issue.”

Replying to the Convener, Nigel Don said he was against deferring the planned enacting of the Act of Sederunt at Monday’s Court of Session’s Rules Council meeting.

Nigel Don said : “My instinct is not to defer anything at all. I am sure that the Lord President has the good of the system at heart, as people do not get to be Lord President without having a pretty good idea of what goes on in the courts. I think that we should trust him to get on with it. If, one way or another, he and others come to the conclusion that they did not get it quite right first time round, I suspect that the speed with which he is now acting demonstrates that he will be swift to amend things. I do not think that we should defer anything for the sake of it.”

The Committee agreed to continue Petition 1247, and write to the Lord President on the issues raised during the hearing, however as revealed by Holyrood insiders late yesterday, the Committee had apparently changed their mind and simply asked Lord Hamilton to update them once the Act of Sederunt has been brought into force, leaving many questions over whether the Lord President had amended any of his ‘overly protective’ plans announced in February, which have formed the bunk of debate & criticism since being proposed by Lord Hamilton as a way forward.

Mr MacKenzie, the petitioner said this afternoon : “I find it strange the Committee has proceeded in this way, apparently letting the Lord President off the hook on some very serious points of contention. They are not asking for a response to the specific points raised by the two MSPs on the Committee last Tuesday and their own minutes confirm that is indeed what was agreed to be done.”

A Holyrood insider also joined in criticising the Petitions Committee, expressing concern the Lord President had not been called in to be questioned on the issue. He said : “It appears the Committee said one thing then did something completely different. Not a very satisfactory outcome given the Lord President is to act on the McKenzie Friend issue at Monday’s Court of Session Rules Council meeting.”

He continued : “I would also have to say for what is a fundamental shift in the rights of court users to have a McKenzie Friend accompany them as never before in Scotland, it has been a significant failure of the Petitions Committee not to have invited Lord Hamilton in to be questioned over the issue. People must be left wondering why Lord Hamilton or the Petitions Committee have dodged such an open debate on the issue, preferring to exchange what can only be described as series of bizarre exchanges by letter.”

No one from the Scottish Parliament was available for official comment late yesterday, nor were enquiries acknowledged on exactly what the Committee had asked of the Lord President after their meeting last week.

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


Anonymous said...

How long can Hamilton and Holyrood keep this bloody ping pong game going ??

Anonymous said...

Sounds like they tried to keep it quiet so you wouldn't be able to write about it until after the main event on Monday.
Good to know you are ahead of the game as usual !

Anonymous said...

“I want to raise two points about the suggested rules in the Lord President's letter of 19 February, which predates our previous meeting. Paragraph 5 of that letter states:


Anonymous said...

"People must be left wondering why Lord Hamilton or the Petitions Committee have dodged such an open debate on the issue, preferring to exchange what can only be described as series of bizarre exchanges by letter.”

No.People are not wondering why the bloody cowards at the Parliament failed to call in the Lord President.They didn't call him in because he realises he waffles so much on camera he probably told them to stuff it before they even dared ask him !

Good reporting as always Peter.

Anonymous said...

I watched your video clip of the latest and a couple of earlier clips.

It seems to me Nigel Don is much too praising of Lord Hamilton in something both are erring in to a major extent.

What was,as you said in an earlier posting achievable in a single court case in England all those years ago seems an almost impossible task for Scotland with the combined efforts of its Parliament and legal eagles.

Lets hope your following of this very sad state of affairs ensures people in Scotland end up having a McKenzie Friend soonish.

Best wishes.

Anonymous said...

Useful Links from the Scottish Legal Complaints Commission Website

Related Bodies

- Law Society of Scotland

- The Faculty of Advocates

- Scottish Legal Services Ombudsman

- Association of Commercial Attorneys

- Conveyancing & Executry Practitioners

Other Sites

- Office of Fair Trading

- British and Irish Ombudsman Association

- Asian Ombudsman Association

- Scottish Legal Aid Board

- Scottish Criminal Cases Review Commission

- Scottish Solicitors' Discipline Tribunal

- Crown Office and Procurator Fiscal Service

- Scottish Government

- Scottish Government Justice Department

- Scottish Public Services Ombudsman

- Consumer Focus Scotland

- Scottish Mediation Register

www.sacl/info they will tell you the real facts, about the Scottish Legal Coverup Commission.


Anonymous said...

You can’t afford to be so naive as to leave your total health care up to a doctor, because he’ll write a prescription and tell you to come back in two or three weeks, and then he’ll write another prescription without ever knowing what in the hell was wrong with you in the first place.
The most evil of all professions, they are all Shipman's especially when money and colleagues are at risk. Nazi's with stethoscopes.

Anonymous said...

Prime Minister Gordon Brown speaks about the end of self regulation at Westminster after politicians from all parties were caught looting taxpayers money for personal expenses.

He did speak and all self regulators are the same dishonest crooked lying cheating bastards. The system is designed to protect the powerful and oppress the weak and they call it justice, eh Hamilton.

Anonymous said...

This stinks!

Anonymous said...

Lord Hamilton hates McKenzie friends and loves his lawyers.

Anonymous said...

If this is true it means we cant even trust our own parliament to do what they say they are doing in public.Investigation needed here I think.

Anonymous said...

I commend any newspaper editor who has the guts to publish stories on the McKenzie friend issue and self regulation in general, we live in a democracy, with a free press.

If lawyers control the press where is the justice in that?

Anonymous said...

What a joke this whole issue.Clearly Hamilton nor the Parliament want McKenzie Friends otherwise it would have been enacted long ago.Must be too much trouble to their backers in the legal profession and the money lawyers will lose once people realise they can do it themselves in court!

Anonymous said...

Quite disgraceful that Lord Hamilton has not been called before the 'justice' committee to explain his contradictory positions and his proposed provisos to what has been working very well elsewhere for some 40 years.

Anonymous said...

What is the "court of session rules council" ? I've never heard of it until now.

Anonymous said...

No wonder nobody from the parliament wanted to speak because they want to cover it up until after the meeting you found out about.

Keep up the good work !

Anonymous said...

Dont worry Peter - at this rate you will get McKenzie Friends before the country has a proper Government !

I'd wager there are a few strong words about your campaign at the Rules Council meeting today !

Anonymous said...

Victims of crooked lawyers need to become MSPs then the policymaking situation will change.

Anonymous said...

Hamilton lawyers rob people and he thinks that is fine, you are a crook Hamilton I would like to know what skeletons you have in the closet?

Hamilton wants to look after his precious law firms, not the general public. He is a legal tyrant.

A word of advice Hamilton, when people get the S**t kicked out of them by lawyers we want to fight back. This is called human nature Hamilton, and the search for justice, a word that is clearly twisted in your warped legal mind. You should be jailed for legal tyranny.

Anonymous said...

This should be frint page news and broadcast on the 'independent' BBC and STV stations.

No wonder Scots law is held in contempt abroad, long live the Banana Republic!

Anonymous said...

What a setup, the Rules Committee consistes of 5 members of the Law Society, 5 members of the faculty of Advocates and three Judges.

Not a single independent public representative to be seen. Some justice!

Anonymous said...

"the Rules Committee consistes of 5 members of the Law Society, 5 members of the faculty of Advocates and three Judges."

Yet we as taxpayers fund the courts yet there is as the earlier comment said no public representation at all.

Something else which badly needs changing !

Anonymous said...

no way would i trust that parliament now after reading this,its a set up for sure they want to bury the problems and let hamilton steam roll through his dictates !

Anonymous said...

If only you knew the problems your blog has caused today!

Anonymous said...

An attempt at deception by a gutless bunch of politicians ?
In the video the clerk seems to be prodding the Convener to get a decision to ask the Lord President to defer whatever he is doing,swiftly answered in an almost staged response by Nigel Don who seems to know what to say before the questions are even asked!

Something very dishonest going on here.

Anonymous said...

Salmond and MacAskill want an independent banana republic.

Anonymous said...

These legal people have an intense hatred of clients, this hypothesis is clear from this debate. Hamilton wants to use the term lay assistant, to break the connection between the rest of the UK and Scotland so that people do not make the connection of the 40 year interdict the Scottish legal establishment has imposed on the Scottish people to keep lawyers wealthy.

More fool you Hamilton and your footsoldiers, we are much smarter that your prejudiced discrimnatory mind can comprehend.

As for the politicians who support legal dictatorship, off with your heads.

Anonymous said...

How long can Hamilton and Holyrood keep this bloody ping pong game going ??
Another 40 years they hope? Mr Hamilton, he in the final analysis is only a man is a pompous twit.

Anonymous said...

Scottish lawyers are graduate criminals.

Anonymous said...

Anonymous said...

This should be frint page news and broadcast on the 'independent' BBC and STV stations.
Yes TV adverts and front page news, clearly some editors are intimidated by or bought off by the Law Society of Scotland.

Anonymous said...

Why does this Hamilton not just transfer all of the McKenzie friend principles to Scotland. Mr Hamilton is doing what all his club do, self protect, its about money and continuing injustice, Banana Dictator Hamilton.

With predjudice from the top man the same hostility will be evident from other judges and sheriffs when McKenzie friends are in our courts.

Anonymous said...

(The sanitised version the Law Society wanted people to know rather than the full horror of what this pair were up to)

Anonymous said...

Exclusive: Watchdogs force one of country's worst lawyers out of firm


Apr 19 2009 By Russell Findlay

ONE OF Scotland’s worst lawyers has been forced out of business by legal watchdogs.

John O’Donnell, 58, was accused of having “contempt” for the Law Society of Scotland by repeatedly snubbing clients and ignoring complaints.

He has been banned from working unsupervised for five years by the Scottish Solicitors’ Discipline Tribunal (SSDT).

It means he can no longer run his own law firm but can still work as a lawyer.

Legal reformer Peter Cherbi of Injustice Scotland said: “This lawyer is unfit to practise and should have been struck off. Instead he gets a slap on the wrist.

“Again the Law Society and SSDT have failed to protect the public. This shows self-regulation doesn’t work.”

The Sunday Mail first exposed O’Donnell five years ago when cops probing an alleged money laundering gang raided his John G O’Donnell & Co office in Cathcart, Glasgow.

We revealed he faced at least 21 negligence complaints and compensation claims of more than £1million.

But it took until last year for the SSDT to find him guilty of six counts of misconduct including breaching money laundering rules. O’Donnell claimed he suffered depression but had a clean bill of health and got off with a £500 fine.

He was finally forced out of business by an SSDT ruling in February, details of which were only released last week at the Sunday Mail’s request.

The SSDT found he lied to clients, their lawyers and the Law Society, and said they were “not convinced” by his explanations.

They added: “It is imperative solicitors are honest at all times.”

One legal source said: “He got away with playing the sickness card for years.

“This smacks of too little, too late.”

O’Donnell, who did not return our calls for comment, is trying to sell his business before the ban begins on June 1 but can still advertise his services until then.

A legal insider said: “This guy was subject to discipline last year.

“Yet he is trusted to wind up the affairs of his clients and none of them are aware of what is happening.”

Anonymous said...

I note that Scotlands top judge Lord Hamilton has told the Scottish Parliament he does not believe in using the term “McKenzie Friend” in Scottish courts, he prefers the term "lay assistant" due to the inexperience of party litigants using the court system.. Clearly Lord Hamilton actually believes that unrepresented Scots court users will not be able to understand what a McKenzie friend is.

A McKenzie friend assists a litigant in person in a common law court. The McKenzie friend does not need to be legally qualified. The crucial point is that litigants in person are entitled to have assistance, lay or professional, unless there are exceptional circumstances. English and Welsh party litigants have been able to use McKenzie friends for forty years, and they understand the term, but tradition and prejudice from the legal profession has prevented the Scots from having the same rights. This in my view is two tier justice in action.

It is incredulous that this man has an attitude like this when the same Scots are not too inexperienced to be called for jury duty, especially in complex cases. I am sure Lord Hamilton and the Scottish Court Service could easily arrange television adverts explaining to the public what a McKenzie friend is. But that would raise the inevitable question of why it has taken forty years for the Scots to have the same legal rights as the rest of the citizens of the UK. Lord Hamilton has reluctantly agreed to implement McKenzie friends in Scotland from June 2010.