Scottish Courts overstepped powers on requirements for ‘speaking’ lay assistants say msps, Justice Committee asked to investigate

Blame Game : Did Scottish Government blunder over wording of ‘talking’ lay assistants laws, or did courts become too protective of lawyers vested interests? ACCUSATIONS of court interference & counter claims of blunders by the Scottish Government over the wording of legislation passed by Holyrood in 2010 which conferred the right of lay assistants (otherwise known as McKenzie Friends) to address the court on behalf of party litigants have prompted a series of exchanges between msps, various court rule making bodies & the Lord President over claims the reforms intended to allow lay assistants to address courts are unworkable in their current state.

The widely praised ‘talking’ McKenzie Friend reform, was put forward in 2010 by the then Communities Safety Minister Fergus Ewing & reported by Diary of Injustice Scotland to get ‘talking’ McKenzie Friends as consumer pressure on court access & rights of audience prompts new proposals for Legal Services Bill, with the Legal Services (Scotland) Act 2010 as it was later passed at Holyrood, giving the Court of Session powers in Sections 126 & 127 of the Act to make rules permitting a lay person to make oral submissions to the court on behalf of a party litigant. 

A short consultation was then launched for views on how lay assistants with the ability to address the court, reported by Diary of Injustice HERE and the provisions for ‘talking’ lay representatives came into force on 1 September 2011.

The actual rules giving lay representatives the right to speak in the Court of Session only came into force earlier this month, after lengthy discussions between the various court bodies over ensuring McKenzie Friends could not charge for their services, a move which seems to have more to do with blocking any competition between McKenzie Friends & lawyers for business and thus sheltering lawyer’s profits, than ‘protecting’ the rights of party litigant. 

However, somewhere in the mess of discussions between the courts which focussed too heavily on protecting their colleagues in the legal profession from losing out materially & financially to McKenzie Friends,  it now transpires the courts have added some conditions of their own, over and above those contained in primary legislation.  effectively blocking the rights of lay assistants to address the court.

A meeting of the Holyrood Subordinate Legislation Committee held on 26 June has now taken issue with the courts own version of the rules,  which requires “the prospective lay representative to make five different declarations relating to financial interests, confidentiality, convictions and whether or not the prospective lay representative has been declared a vexatious litigant. It is then within the discretion of the Court to decide whether the lay representative may appear. It may permit that appearance only if it is of the opinion that it would assist the Court.”

The Committee wrote to the then Lord President, Lord Hamilton, asking for further details which generated a response that “the requirement on a prospective lay representative to declare previous convictions was intended to require the disclosure of all convictions, including those which are spent for the purposes of the Rehabilitation of Offenders Act 1974.”, a condition which appears the courts have inserted themselves far & above what was allowed or envisaged via the Legal Services Act (Scotland) 2010.

The Committee, not being satisfied with responses received from the Lord President, has remitted the matter back to the Scottish Parliament’s Justice Committee for further consideration, after it’s Convener, Nigel Don made it plain he felt the courts had overstepped the mark in enforcing stricter than necessary requirements for McKenzie Friends to address Scottish courts.

However a new problem for lay assistants being able to address the court has arisen, after a lay member of the Sheriff Court Rules Council apparently spoke out to the media, accusing the Scottish Government of making a mess of the wording of the Act, not the first time such accusations have been made about poorly thought out & weak or vague worded legislation concerning so-called ‘reforms’ in the justice system.

Asked for a comment on accusations made against the Scottish Government, a spokesperson for the Sheriff Court Rules Council declined to comment and the Scottish Government have not responded to queries over the matter.

Legal insiders have since speculated the wording of the Legal Services Act (Scotland) 2010 may have been purposely framed so vaguely as to allow members of the judiciary to refuse to allow lay representatives to be able to address the court on behalf of party litigants.

An insider said : "Given the recommendations contained in the civil courts review and the campaign at Holyrood to bring McKenzie Friends to Scotland's courts, it is at the very least, suspicious that the Scottish Government's legal directorate failed to get the wording right on a key reform which the legal profession did not support.”

He went onto say : "With the worries of some in the legal profession that litigants may turn to using lay assistants rather than expensive legal teams who may end up generating large legal bills with little to show for it, one could perhaps speculate the badly worded sections are no accident, and were indeed designed to impede lay assistants, or McKenzie Friends from addressing the court"

Speaking to Diary of Injustice this afternoon, a solicitor based in England said he was appalled over the wrangle in Scotland over lay assistants. He said : "Only Scotland could manage to screw up McKenzie Friends with rights of audience features no one really wants. Was it done on purpose to discredit their use as time went on ? I think this could be a possibility."

Diary of Injustice was involved in the campaign to bring McKenzie Friends to Scotland, more of which can be read here : Bringing McKenzie Friends to Scotland's Courts

The discussion of the Holyrood Subordinate Legislation Committee follows : Holyrood Subordinate Legislation Committee 26 June meeting

Act of Sederunt (Rules of the Court of Session Amendment No. 3) (Miscellaneous) 2012 (SSI 2012/189) (Justice Committee)

45. This instrument amends the Rules of the Court of Session by inserting a new Chapter 12B which makes provision for lay representation before the court. It also revokes the Parts of Chapter 41 which relate to applications for permission to appeal against decisions of the Upper Tribunal.

46. The instrument is not subject to any parliamentary procedure and comes into force on 9 July 2012.

47. As part of its scrutiny of the instrument the Committee asked for clarification of various points from the Lord President’s Private Office (“the LPPO”). The correspondence is reproduced in Appendix 5.

48. The Court of Session (“the Court”) has power to make rules regulating the procedure and practice to be followed in that Court, in terms of section 5 of the Court of Session Act 1988 (“the 1988 Act”). These Rules are made under that power and they modify the Act of Sederunt (Rules of the Court of Session 1994) 1994 (“the Rules of the Court of Session”).

49. This instrument makes two separate amendments to the Rules of the Court of Session: paragraph 2 inserts the new Chapter 12B on lay representation, and paragraph 3 revokes certain of the Parts of Chapter 41 which the Court declared to be ultra vires in the case of KP and MRK v Secretary of State for the Home Department. This report is concerned with new Chapter 12B only.

50. Section 126 of the Legal Services (Scotland) Act 2010 amended section 5 of the 1988 Act to insert section 5(ef) which confers power on the Court to make rules “to permit a lay representative, when appearing at a hearing in any category of cause along with a party to the cause, to make oral submissions to the Court on the party’s behalf”.

51. Chapter 12B prescribes that the party who wishes to have a lay representative make oral submissions must enrol a motion accompanied by Form 12B.2. This form must be completed by the party and by the prospective lay representative. It requires the prospective lay representative to make five different declarations relating to financial interests, confidentiality, convictions and whether or not the prospective lay representative has been declared a vexatious litigant. It is then within the discretion of the Court to decide whether the lay representative may appear. It may permit that appearance only if it is of the opinion that it would assist the Court. It appears that the Court, in exercising that discretion, will take into account the declarations made on Form 12B.2.

52. In its response of 21 June 2012, the LPPO confirmed that the requirement on a prospective lay representative to declare previous convictions on Form 12B.2 was intended to require the disclosure of all convictions, including those which are spent for the purposes of the Rehabilitation of Offenders Act 1974 (“the 1974 Act”).

53. The Committee observes that section 4 of the 1974 Act relieves persons whose convictions are spent from the ongoing consequences of having to declare a conviction. It notes in particular that section 4(1)(b) of the 1974 Act provides that such a person must not, in any proceedings before a judicial authority, be asked or required to answer any question relating to his or her past “which cannot be answered without acknowledging or referring to a spent conviction or spent convictions”. It further notes that section 4 of the 1974 Act is subject to the limitations on rehabilitation set out in section 7 of that Act, and to the exclusions set out in the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003, which is made by the Scottish Ministers in exercise of the powers conferred by section 7(4) of the 1974 Act.

54. It accordingly appears to the Committee that Form 12B.2, in so far as it requires persons to declare convictions which are otherwise spent, purports to disapply section 4(1) of the 1974 Act. The LPPO was asked to explain the basis on which such provision might lawfully be made. The LPPO takes the view that the rule-making powers of the Court in section 5(a), (b) and (ef) of the 1988 Act, when read in conjunction with section 7(3) of the 1974 Act, confer power upon the Court to make provision of this nature.

55. The Committee observes that the Parliament expressly conferred the power to make rules permitting lay representation before the Court when it enacted section 126 of the Legal Services (Scotland) Act 2010, inserting section 5(ef) of the 1988 Act. The Court, in its judicial capacity, has held that section 5(a) of the 1988 Act cannot be relied on to supplement any of the specific powers otherwise conferred in that section. As the Lord President (Hope) commented in Taylor v Marshalls Food Group, “[h]ad Parliament taken the view that para. (a) was as general as counsel suggested, then it would not have found it necessary to insert the new paragraph […] to allow the court to make acts of sederunt in relation to expenses.” In light of this judgment of the Court the Committee takes the view that neither paragraph (a) nor (b) of section 5 enables the Court to make provision which, properly construed, is ancillary to the power to make rules permitting lay representation conferred by paragraph (ef).

56. Furthermore, in the Committee’s view there is nothing in paragraph (ef) which permits the Court to make rules which override primary legislation, in particular the prohibition on requirements to disclose spent convictions established by section 4(1) of the 1974 Act. It appears to the Committee that the Court is seeking, in its legislative capacity, to specifically override provision enacted by the UK Parliament in a manner which is not subject to the Parliament’s supervision. It observes that such a power exists but that it is a power exercisable, post-devolution, by the Scottish Ministers and only with the express approval of the Parliament.

57. So far as the LPPO seeks to rely on section 7(3) of the 1974 Act, the Committee accepts that this is a power exercisable by a “judicial authority” (a term which includes the Court) to require the disclosure of spent convictions. However, it notes that this power is subject to significant restrictions. First, and fundamentally, there is nothing in section 7(3) to suggest that it may be exercised by the Court in its legislative capacity. In the Committee’s view, it is quite clear from the reference to that power being exercisable “at any stage in any proceedings” that it is exercisable by the Court in its judicial capacity when dealing with individual cases. It is unpersuaded by the suggestion that the exercise of the Court’s legislative functions could be taken to constitute a stage in proceedings: the very nature of the rule-making function is that the resulting rules apply in all cases, and there would be no exercise of the section 7(3) power in each individual case. The Committee also notes that this power is exercisable only where the authority, in relation to the proceedings, considers that justice cannot be done without admitting evidence of spent convictions. The LPPO has not identified why it would invariably be the case that justice could not be done, where a lay representative is involved, unless that lay representative discloses spent convictions.

58. The Committee accordingly considers that the LPPO has not been able satisfactorily to explain how the Court may, by Act of Sederunt, disapply the provisions of section 4 of the 1974 Act. It does not consider that section 5 of the 1988 Act confers any such power. Furthermore, it is unpersuaded that section 7(3) of the 1974 Act is capable of being exercised in a blanket fashion by the Court in its legislative capacity. It appears to the Committee that section 7(3) is intended for use by any court when exercising its judicial functions on a case-by-case basis in individual court proceedings.

59. For these reasons, the Committee considers that it is doubtful whether this instrument is intra vires in so far as it inserts Form 12B.2 into the Rules of the Court of Session when that form is intended to require prospective lay representatives to disclose spent convictions. That provision appears to be of doubtful vires because it purports to disapply the effect of section 4(1) of the 1974 Act in the absence of any power enabling the Court of Session to make rules to that effect.

60. The Committee therefore draws the instrument to the attention of the Parliament on reporting ground (e) as there appears to be a doubt about the vires. There appears to be a doubt whether the instrument is intra vires in so far as it inserts Form 12B.2 into the Rules of the Court of Session, when the purported effect of that form is to require a prospective lay representative to make a declaration disclosing spent convictions. That provision appears to be of doubtful vires because it purports to disapply the effect of section 4(1) of the Rehabilitation of Offenders Act 1974 in the absence of any identifiable power enabling the Court of Session to make provision to that effect.

61. Furthermore, the Committee draws this matter to the attention of the Justice Committee as lead committee on the instrument. This instrument is not subject to any further parliamentary procedure but purports to make substantive provision which modifies the rights and protections of individuals and disapplies primary legislation. The Committee accordingly considers that this raises an important constitutional point about the respective functions of the Parliament and the rule-making authority, and recommends that the Justice Committee consider the matter further.

APPENDIX 6

Act of Sederunt (Rules of the Court of Session Amendment No. 3) (Miscellaneous) 2012 (SSI 2012/189)

On 19 June 2012, the Lord President’s Private Office was asked:

Form 12B.2, as inserted by the Schedule to this instrument, requires the prospective lay representative to make certain declarations. In particular, paragraph (d) requires that person to declare that he or she has no previous convictions, or alternatively to list those previous convictions. However, section 4 of the Rehabilitation of Offenders Act 1974 provides, inter alia, that a person who has become a rehabilitated person “…shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction…” and in particular that such a person shall not, in any proceedings before a judicial authority, be asked or required to answer any question relating to his or her past “…which cannot be answered without acknowledging or referring to a spent conviction or spent convictions…”. The Lord President’s Private Office is asked:

(a) Is it intended that a person who has become a rehabilitated person (and whose convictions are spent) should be required to disclose those convictions notwithstanding section 4 of the Rehabilitation of Offenders Act 1974?

(b) If that is the case, to identify the power which is relied upon to make such provision; or

(c) If that is not the case, to explain why it is considered that Form 12B.2 makes it sufficiently clear (in particular having regard to the likelihood that the form will be completed by those who are not legally qualified) that the prospective lay representative need not declare spent convictions.

The Lord President’s Private Office responded as follows: (a) Yes.

(b) The powers to make the court rules are contained in sections 5 and 5A of the Court of Session Act 1988. In particular, paragraphs (a), (b) and (ef) of section 5 are relevant for these purposes. The Lord President’s Private Office takes the view that the court’s rule-making powers also require to be read against the background of section 7(3) of the Rehabilitation of Offenders Act 1974, which enables the court, at any stage in any proceedings, to require evidence relating to a person’s spent convictions, notwithstanding the terms of section 4(1) of the 1974 Act, where the court is satisfied in the light of any considerations which appear to it to be relevant that justice cannot be done except by admitting or requiring the evidence relating to those spent convictions. Other exclusions of section 4(1) of the 1974 Act (including exclusions relating to certain types of proceedings in the Court of Session) are set out in the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003.

(c) In light of the answer to question (a), question (c) does not require to be answered.