Showing posts with label Robin Harper. Show all posts
Showing posts with label Robin Harper. Show all posts

Thursday, March 10, 2011

Out of Focus : Consumer Focus Scotland’s “qualified support” for self regulation of lawyers halts Holyrood moves to scrap Solicitors Scotland Act 1980

Consumer Focus Scotland logoConsumer Focus Scotland’s support of self regulation closed Holyrood petition, say campaigners. A CLAIM by Consumer Focus Scotland that self regulation of lawyers “brings a number of benefits to consumers” along with a statement by the consumer organisation’s policy of ‘qualified support’ for the Law Society of Scotland’s model of self regulation of the legal profession, is today being blamed by campaigners for the failure earlier this week of a public petition which called for repeal of thirty year old legislation which continues to allow Scottish lawyers to investigate themselves while consumers in England & Wales now have fully independent regulation of legal services via the Legal Ombudsman.

The consumer organisation was also criticised by a solicitor for its apparent lack of understanding of how the Law Society’s Council operates behind closed doors, where Consumer Focus’ expectations that yet another, to-be-announced Law Society run Committee with ‘equal lay membership’ will resolve many of the concerns highlighted in the now closed petition.

Petition PE1388, which called for the repeal of the Solicitors (Scotland) Act 1980 was briefly heard at the Scottish Parliament’s Public Petitions Committee on Tuesday of this week. However, with all respondents to the committee, the Scottish Government (pdf), Law Society of Scotland (pdf) & Consumer Focus Scotland (pdf) failing to support the petition, it was left to one committee member, Robin Harper MSP to call for it’s closure, citing the highly controversial policy shift by Consumer Focus Scotland as one of the chief reasons the committee should not consider the petition any further.

Consumer Focus Scotland’s support for self regulation ‘played key role’ as Robin Harper MSP calls for closure of Petition PE1388 during Tuesday’s committee hearing (Click image to view video footage)

Members of the Petitions Committee were asked by its convener, Rhona Brankin MSP for their views on the petition, resulting in Robin Harper calling for the petition to be closed. Mr Harper said : “Happy to close it under Rule 15.7 Convener, the Scottish Government has indicated it’s got no plans to repeal the Solicitors' (Scotland) Act 1980, it responded to the question raised about the resignation of John McGovern, the repeal of the act is not supported by the Law Society of Scotland and Consumer Focus has a qualified support for self regulation on the grounds it does bring certain benefits to consumers.”

As I reported in early February, Consumer Focus Scotland refused to support the petition calling for repeal of legislation which allows solicitors to regulate & investigate themselves. Consumer Focus’ response came after I reported on the Scottish Government's refusal to repeal the 1980 Act and the Law Society of Scotland’s warning to the Petitions Committee over the petition which I reported on here : Law Society ‘warns’ Scottish Parliament : Solicitors (Scotland) Act 1980 ‘should not be repealed’ by msps or Scottish Government

Consumer Focus Scotland’s response (pdf) to the Petitions Committee, as briefly referred to Mr Harper during Tuesday’s meeting at Holyrood stated : While it is clear there is the potential for conflict between the representative and regulatory functions of the Society, we believe that self-regulation brings a number of benefits to consumers. These include : (i)The regulatory system will be tailor made for the needs and problems of that particular sector, and will reflect inside knowledge about the realities of that sector, (ii)The benchmarking of best practice over and above the basic minimum requirements & (iii)Self-regulation is quicker and less costly to put in place (and adapt to changing needs) than legislation.”

“However, our support of self-regulation by the legal profession (other than for investigation of complaints) is qualified. The SCC produced a good practice guide on effective self-regulation, which made clear that one of the key principles of a credible self-regulatory scheme is independent representation on its governing body.”

Consumer Focus Scotland’s response to the Petitions Committee also talked about the establishment under the Legal Services (Scotland) Act 2010 of a regulatory committee of the Law Society of Scotland with at least a 50% non-solicitor membership and non-solicitor convener, which in the quango’s view would give the Law Society the opportunity to demonstrate clearly that it is acting in the public interest in carrying out its regulatory functions.

Consumer Focus Scotland further stated : “The independence of the regulatory committee will be an important tool in ensuring public confidence in its regulatory functions and we were pleased that provisions were inserted into the 2010 Act to ensure that the Society’s Council must not interfere unduly in the regulatory committee’s business.”

“The provisions of the Solicitors (Scotland) Act 1980 (as amended), which set out the Society’s role in the regulation of solicitors, provide an important consumer protection. It is critical that there is a robust regulatory framework in place to protect consumers should things go wrong. While we have been critical in the past of the Society’s regulatory regime, we believe the changes being introduced by the 2010 Act should lead to increased public confidence, transparency and effectiveness in the regulatory process. This Act is not yet in force, however, and we believe it is important that an opportunity be given to demonstrate whether these changes do lead to such improvements.”

“For this reason we do not support the petition’s suggestion that the Scottish Government should repeal the Solicitors (Scotland) Act 1980 to end self-regulation of the legal profession. Should this restructuring of the Society’s governance arrangements and the application of the regulatory objectives not act to improve public confidence in its regulatory functions, however, we believe the dual regulatory and representative roles of the Society should be reviewed.”

One msp speaking to Diary of Injustice over the failure of Petition PE1388 branded Consumer Focus Scotland’s idea that a Law Society regulatory committee with a 50-50 lay member involvement will restore public confidence in regulation of the legal profession as “nonsense”.

He said : “I think Consumer Focus Scotland seem to have drifted off course from the widely held & clearly justifiable public perception that self regulation is not really an open or honest method of regulating any commercial or public service by any stretch of the imagination. For instance, would Consumer Focus Scotland claim the actions of various bankers were well regulated by their colleagues or the FSA in the light of the banking crisis and massive cuts to public services ?”

He continued : “Consumer Focus as the Scottish Consumer Council supported the introduction of the LPLA Bill which brought the Scottish Legal Complaints Commission in as an independent regulator. However we have recently learned there have been no prosecutions of solicitors under the 2007 LPLA Act and the SLCC which has the same proposed 50-50 lay member complement on its board is itself lacking public confidence. Why on earth would Consumer Focus Scotland believe the same arrangement at the Law Society could resolve the difficulties over regulation or complaints ? This is nonsense.”

There was further support today from a Glasgow solicitor who is keen to see reforms & amendments to the Solicitor’s (Scotland) Act 1980. However, he was severely critical of Consumer Focus Scotland for its apparently lack understanding of how the Law Society Council operates, particularly in the light of recent media attention & high profile resignations from the Law Society's Council over backdoor dealings & censorship of some its own members views on everything from regulation to saving money from the legal aid budget.

He said : “The Consumer Focus plan that an equal membership solicitor-lay committee at the Law Society will solve the ills of complaints will not work and as far as there being no interference from the Law Society’s Council, well I think recent events are enough to show us the people at Consumer Focus have no idea how the Law Society Council functions or operates, which seems to be mostly behind the membership’s backs. I think its a bit airy fairy to suggest the Council wont intervene with a committee, don’t you ?”

He also called for those solicitors who have publicised their disagreements with the Law Society over issues such as regulation & membership requirements to work with consumer campaigners to return the issue to Holyrood

He continued : “I don't think Holyrood can turn its back on this issue so easily, given msps have already intervened on the issue of regulation by way of the Legal Profession & Legal Aid Act. Perhaps there may be a greater chance of success if those within the legal profession who are allegedly disgruntled with the Law Society’s poor representation of its members interests and consumers or campaigners who share similar views over the Society’s responsibilities for regulation can come together to take this issue back to the Scottish Parliament after the elections in May.”

Mr William Burns, the petitioner who brought Petition PE1388 to the Scottish Parliament was scathing of the Petitions Committee’s consideration of the issues. He also revealed the Petitions Committee had refused to allow any oral evidence to be presented on the aims of the petition and public experiences with the Law Society’s control of self regulation of solicitors.

He said : “The result of the approximately 30-second hearing, coupled with the repeated refusal to allow us to give oral evidence before the Public Petitions Committee, confirmed of what I accused the nine members prior to the final hearing, that they ignored our abundance of written evidence in its entirety.”

He continued : “Prior to the decision being taken to close PE1388, I accused the committee members of being elected nobodies taking orders from unelected nobodies in the Scottish Government's legal division; legal collaborators with their comrades in the Law Society. The PPC confirmed this by not denying the accusation, before rushing their decision through on a fast track to close the petition.”

Readers should also note demise of another petition this week which the Law Society unofficially objected to, as Petition 1354 calling for Education of legal & consumer issues in Scottish schools was also closed by the Petitions Committee. Consumer Focus Scotland had rather heavily supported this petition as I reported earlier, HERE, however the Scottish Government and various education bodies said the idea was a non starter and with dwindling media coverage due to some over inflated egos, the petition fell flat on its face.

Petition PE1354 calling for education of legal & consumer issues in Scotland’s schools, closed also, apparently on Law Society orders (Click image to view video coverage)

It should be noted legal insiders have since claimed talks between the Scottish Government and the Law Society of Scotland have taken place on the issues raised in Petition 1354, as the Law Society is rumoured to be seeking to establish itself as the sole educator of legal issues in Scotland.

More worryingly, the petition was also rumoured to have been delayed by the Scottish Parliament, as its own lawyers were involved in an event held jointly with Law Society of Scotland at last year’s Festival of Politics held at Holyrood and chaired by Liz Campbell, the Law Society's director of Education and Training. Those who participated at the event included the latest Law Society Vice President, Austin Lafferty, of Austin Lafferty Solicitors and Law Society Council Member, Gavin Henderson, from the Office of Scottish Parliamentary Counsel and Patrick Gaffney of the Schools Law Web.

Scottish Government insiders have since revealed the Law Society of Scotland is attempting to ensure that the Schools Law Web, which claims its aims to bring teachers and lawyers together in an effort to introduce young people to the legal system and those who work within it, will be the sole provider of education of legal services to young Scots. Parents and those concerned with education may well want to take a closer look at this arrangement as time goes on.

John Lamont MSP, the Scottish Conservatives Justice spokesman & Convener of the Scottish Parliament’s Justice Committee was asked if the Scottish Conservatives have plans to further raise the issue of teaching consumer & legal issues in Scottish schools, given these subjects are apparently taught in England & Wales.

He said : “Those at school could gain hugely from knowledge of consumers’ rights and the roles and responsibilities of the legal profession and as such the Scottish Conservatives have actively encouraged and continued to support the idea.”

He continued : “As there is no national curriculum in Scotland however, there is no obligation on schools to adopt the idea; but we will be doing all that we can to encourage them to adapt citizenship into their pupils’ studies.”

Consumer Focus Scotland were asked today for their comments on the failure of both petitions at the Scottish Parliament.

On the issue of Petition PE1388 and its closure, a spokesperson for Consumer Focus Scotland said : “As detailed in our submission to the Petitions Committee on Petition 1388, we consider that regulation of the legal profession can be split into two broad categories: the complaints handling functions, and other regulatory matters such as regulating admission to the profession and setting and maintaining professional standards.”

The spokesperson continued : “Our primary concern regarding regulation of the legal profession has been with the issue of complaints against the profession. The Scottish Consumer Council, one of Consumer Focus Scotland’s predecessor bodies, published research in 1999 on complaints about solicitors, which revealed a clear perception that the Society was not impartial in its handling of complaints, appearing to take the side of the solicitor. Following the publication of the research, the SCC campaigned for a number of years for the establishment of an independent body to deal with complaints against solicitors, to ensure that the public has confidence in the legal system. As detailed in our evidence on Petition PE1388, Consumer Focus Scotland’s preference would be for the Legal Services Complaints Commission to have responsibility for investigating all complaints against solicitors, not just service complaints.”

On the matter of Petition 1354 and its closure, a spokesperson for Consumer Focus Scotland gave more hope the issue would be pursued as part of its work on civil justice reform.

The spokesperson said : “Consumer Focus Scotland has a keen interest in the issue of pubic legal education. In our report ‘Making Civil Justice Work for Consumers,’ published in March 2010, we identified a public legal education strategy as being the first step in our four-step approach to removing barriers to access to justice. Most recently, the report of the Civil Justice Advisory Group, published by Consumer Focus Scotland in January 2011, made recommendations around public legal education and our consumer agenda for Scottish Parliament, published in February 2011 also highlights this as a key policy issue.

Their spokesperson continued : “While our work plan for 2011-12 is still to be agreed by the Consumer Focus Scotland Board, we expect that the issue of public legal education will be an issue we pursue as part of our work on civil justice next year.”

Friday, May 08, 2009

Battle to bring McKenzie Friends to Scotland continues as Holyrood investigates ‘access to justice’ proposals

Scots parliamentPetitions Committee told McKenzie Friends proposals must be supported. Earlier this week the Scottish Parliament's Petitions Committee was told that ending a 39 year peculiarly Scottish ban on assisted public access to justice in the Scottish Courts by allowing the facility of McKenzie Friends, would greatly enhance the legal rights & success of many members of the public who find themselves facing legal action or require the use of the Justice system but for whatever circumstances are applicable to their predicament, cannot afford or obtain legal representation to further their access to the courts.

Petition PE1247 - Bringing McKenzie Friends to Scotland, with support from Margo MacDonald MSP.

margo macdonaldMargo MacDonald stepped in to support McKenzie Friends Petition. Petition PE1247 : McKenzie Friends for Scotland, was admirably supported by Scotland's independent MSP, Margo MacDonald, who told the Committee that in civil courts, such as small debts & other cases, people can find it impossible to obtain legal representation, finding they end up in court having to represent themselves.

Speaking on the merits of McKenzie friends, Margo MacDonald went on to tell the Committee that in England & Wales, the system of McKenzie Friends had operated successfully for 39 years where individuals who cannot access legal services through a variety of reasons, can obtain the services of a McKenzie Friend, who can assist them during their court appearances where difficulties with legal procedure and other matters can lead an individual to be put at a considerable disadvantage when unrepresented by legal counsel.

robin harperRobin Harper MSP supports McKenzie Friends as common sense idea. Robin Harper MSP, of the Scottish Green Party, was first to support the McKenzie Friends petition, calling the proposal "such an obviously good idea & common sense idea that we must continue it and we should ask the Scottish Government directly whether it will introduce a McKenzie Friend facility in Scottish Courts and if not, why not, and will this matter be part of the 8th program of law reform to be held by the Scottish Law Commission".

nigel_donNigel Don MSP is Kenny MacAskill's Parliamentary Liason Officer. Nigel Don MSP entered the debate by informing the Petitions Committee that the introduction of the McKenzie Friend facility south of the border, “was not brought in by the British Government, rather it was simply allowed after it went to the Court of Appeal", this in reference to the original 'McKenzie Friend' case which started the whole concept, where an Australian, Ian Hanger QC, at the time, a Barrister, became involved in a case in the London courts, but whose qualifications in law in Australia did not allow him to practise as a barrister in London.

Ian Hanger was sent the brief by the firm of solicitors, Geoffrey Gordon & Co for McKenzie one day prior to the hearing. McKenzie was unable to afford legal assistance, didn't qualify for legal aid, and had not maintained consistent contact with Gordon. Hanger sat with his client to provide what quiet assistance he could from the bar table to a man representing himself. The trial judge asked Mr Hanger to desist from doing what he was doing and this became the basis of the appeal by Gordon against the judgment against McKenzie.

Mr Don went on in the debate to say he felt it was open to the court simply to allow McKenzie Friends in Scotland, and that a 'nod from the Lord President' following Lord Gill's soon to be released review of the Civil Courts system might be the way to go rather than the Parliament going through the legislation process to allow MFs to Scotland.

However, Margo MacDonald responded to Nigel Don's remarks by making clear that something more substantial needs to be done on the issue in Scotland simply because of the 17 year time lags in Scotland in implementing the likes of Sections 25-29, and with the incredible 39 year gap between Scotland & the rest of the UK on the issue of McKenzie Friends it is time for action.

Lord HamiltonLord Hamilton could give nod & wink to initiate McKenzie Friends but most feel political legislation is required. Certainly from my own experience in matters of law reform, I feel there must be a legislative process began on the issue of the introduction of McKenzie Friends in Scotland, given there has been such resistance to any access to justice reforms by the Scottish legal establishment, some examples of which are the 17 year restriction on small claims limits in the Scottish Courts, to some £750, where the rest of the UK had limits of £5,000 and of course, the 17 year lack of implementation of Sections 25-29 of the Law Reform (Misc Provisions) (Scotland) Act 1990, where Scotland's 'access to justice' legislation was kept off the books by an arrogant campaign from the legal establishment, bent on maintaining market monopoly over the public's access to legal services in Scotland.

Given the decades of delay in legal reforms in Scotland, can we trust the issue of McKenzie Friends to a nod & a wink from the Lord President, no matter how well intentioned it may be ? I feel not.

McKenzie Friends must be looked into by the Parliament, with at least an inquiry taking place, and ultimately questions being asked and answered as to why McKenzie Friends have been excluded from the Scottish Courts system for 39 years.

In an update to the McKenzie Friend proposal, Margo MacDonald asked a question of the Scottish Justice Secretary, Kenny MacAskill during yesterday's question time : Margo MacDonald: To ask the Scottish Executive whether it will introduce the practice of allowing a McKenzie’s friend into law courts. (S3O-6781)

Margo MacDonald's question to Kenny MacAskill on McKenzie Friends for Scotland brought a dithering response from the Justice Secretary, who seemed to be playing for time ahead of Lord Gill's Civil Justice review.

There is little doubt after watching the following extract of proceedings, that Mr MacAskill is not minded to reform access to justice by any measure of the term.

In response to Margo MacDonald, Justice Secretary MacAskill struggles with delay in mind ahead of Lord Gill’s Civil Justice review.

MacAskill tight lippedDithering Kenny MacAskill needs more than a push to bring in McKenzie Friends.After having watched Mr MacAskill's response to Margo MacDonald's question, I am convinced more than ever that Parliament must look into the issue of McKenzie Friends, hold an investigation and enact legislation which will ensure that McKenzie Friends be allowed in Scotland's courts, because without a doubt, if it is left to the legal establishment, McKenzie Friends will never come to Scotland, just as access to justice reforms will never come to Scotland unless someone outside the legal fraternity talks about it, raises the issue publicly and gets Parliament to do something - just as we all found with the Legal Profession & Legal Aid (Scotland) Act 2007.

Ian Hanger QC, speaking on the issue to the Scotsman newspapers said regarding the Scottish Parliament’s hearing of the McKenzie Friend Petition that he “would love to address them on the virtues of the McKenzie Friend.”

On asking Ian Hanger QC as to the merits of McKenzie friends, he said : “In our Federal Court the Act dealing with the judiciary under the Constitution is the Judiciary Act. S 55 prohibits representation other than by barristers and solicitors.The Federal Court therefore regard the McKenzie Friend as a useful adjunct to the court process.

Mr Hanger went on : “Once again, I spoke today to the most senior Federal Court judge in our State and he said that overall McKenzie Friends have been very useful. He said that there are cases where the litigant cannot afford a barrister or solicitor and the judge does not think that it is appropriate to ask the profession to act in the particular case on a pro bono basis (as it can do). Of course there will be McKenzie Friends who step out of line, but the judge has the power to do what the judge did to me - prevent the person sitting at the bar table with the litigant.”

On that note, I would think the support and testimony of the original McKenzie Friend, Ian Hanger QC, must be extremely beneficial to the McKenzie Friend petition itself and the rights of all Scots to further their entitlements of access to justice & legal services. I have therefore asked the Scottish Parliament Petitions Committee to ask Mr Hanger to speak on the merits of McKenzie Friends, as a matter of importance to the debate.