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

Holyrood 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 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 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 ?”

Scotland’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.

Which? 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