Victims of serious crime to be given a say in court as Civil justice awaits badly needed reforms

Reforms to the Justice system are certainly in the slow lane these days, as the Scottish Executive dust off an old chestnut to give the victims of "serious crime" a chance to make a statement to the court which it is claimed, the Sheriff or Judge would "have" to take into account, possibly resulting in a longer sentence.

What is going to be defined as a serious crime ?

The Scotsman article quotes Mr MacAskill on this as :

"This will give victims of serious crimes such as murder, rape or serious assault the right to make a statement telling the court about the emotional, financial and medical impact a crime has had on them, after conviction but before sentencing," he said. "It's important, however, to be clear - the statements would be just one factor that judges will take into account when passing sentence."

We've heard all this before though ... time & again over the years ... pleas for victims to be heard, nothing being done, and then members of the judiciary taking their own view as they always do, because of course "they know best - better than any victim"

However, isn't all crime serious ? - even the crimes which no one wants to deal with, such as misconduct & negligence by the professions against the public ? or is that to be left conveniently sidelined as "civil issues" just to escape any responsibility for doing anything to help the thousands of people each year in Scotland who fall into the category of taking issue with the supposedly "well respected" professionals such as lawyers, accountants, doctors, Police, and the like ? .. who all happen to be self regulated'.

The Scotsman today in their story, quotes Mr MacAskill, the Cabinet Secretary for Justice as saying :

"The past Executive flagged up the needs of victims and the person who perhaps drove it most was the current Lord Advocate, Elish Angiolini, who realised that, as a community and as a legal entity, Scotland had forgotten the rights of victims. Nobody did it deliberately, but victims were seen as baggage, almost a nuisance. They were seen as an unnecessary encumbrance.

"We have to put victims at the heart of the criminal justice system. We have to realise they are the ones who have suffered, that they are not an encumbrance but that they have rights," he said.

Yes indeed, Mr MacAskill, the rights of victims does need to be put at the heart of the criminal justice system, but please don?t discriminate against the true needs of the public, and sideline the even greater numbers of victims who are left to make their own way in the horrors of the Civil Justice system in Scotland - which as you know yourself from your time as a solicitor, is in just as big a mess as the criminal justice system .. with perhaps even fewer rights available to the individual to pursue matters, particularly when it comes to access to justice issues & those who may decide that certain people with certain types of cases should not be given that access to justice.

How about extending this policy of allowing victims to make a statement as to how their lives had been ruined by the actions of others to other offences too .... For instance, when a crooked professional comes up for trial for negligence, fraud or ruining the lives of members of the public, the victims should be allowed to make a statement to the court too, to make everyone aware of the hurt and destruction one of these members of the allegedly greatly respected professions has caused to them.

It's all crime after all, Mr MacAskill .. and it's all serious too .. it's just that some people want to protect their colleagues after they have been found ripping off clients, or perhaps giving patients overdoses of medication ... so .. let the public have their say in all venues please ... rather than restrict again who gets the chance to tell their experiences at the hands of those who thrive & profit from injustice while others must suffer in silence, just to keep the lid on Scotland's not so honest legal system.

Victims to be given their say before their attackers are sentenced

MICHAEL HOWIE HOME AFFAIRS CORRESPONDENT

VICTIMS of serious crime are to be given a much bigger voice in the justice system, The Scotsman has learned.

They will get the opportunity to provide a statement in court before their attacker is sentenced, under plans revealed by Kenny MacAskill, the justice secretary.

He said that, for too long, victims had been treated as "baggage" by the system, but the statement would give them the chance to say how the crime had impacted on their lives, whether emotionally, physically or financially. In murder cases, the family of the victim would have the right to provide a statement.

In all instances, the statement would have to be taken into account by the sheriff or the judge, and it could result in a longer sentence.

A notification scheme, requiring prosecutors to tell victims when their attackers will be released from jail, will also be extended.

Mr MacAskill acknowledged steps had already been taken to improve the position of victims - and he pledged to ensure their rights would no longer be neglected by prosecutors and the courts.

"The past Executive flagged up the needs of victims and the person who perhaps drove it most was the current Lord Advocate, Elish Angiolini, who realised that, as a community and as a legal entity, Scotland had forgotten the rights of victims. Nobody did it deliberately, but victims were seen as baggage, almost a nuisance. They were seen as an unnecessary encumbrance.

"We have to put victims at the heart of the criminal justice system. We have to realise they are the ones who have suffered, that they are not an encumbrance but that they have rights," he said.

The move follows a two-year pilot scheme at courts in Edinburgh, Ayr and Kilmarnock. An evaluation found that six out of ten families of victims of the most serious crimes, such as murder and death by dangerous driving, wanted to provide a pre-sentence statement.

However, the Executive-commissioned research, which was published in March, raised concerns that victim statements, which are already allowed south of the Border, risked prejudicing the accused and could falsely raise the expectations of victims. Some victims also decided not to give statements for fear of reprisals.

Some of those concerns were echoed by experts last night.

Dr Susan McVie, a criminologist at Edinburgh University, said: "I think in cases where victims don't get the chance to describe the impact the crime has had on them, or cases where the victim is no longer around to speak out, this can be a very positive thing.

"In theory, it's a good idea, but many victims don't bother to take it up."

She went on: "Does it mean offences are treated differently in cases where a victim statement is read, compared to when cases are not read out? Research tends to focus on the effect on victims, but this is something that I think we need to look at."

However, most victims who signed up to the pilot scheme thought it was worthwhile, which is why Mr MacAskill plans to extend the scheme to all cases heard before a judge in the High Court or a sheriff and jury.

"This will give victims of serious crimes such as murder, rape or serious assault the right to make a statement telling the court about the emotional, financial and medical impact a crime has had on them, after conviction but before sentencing," he said. "It's important, however, to be clear - the statements would be just one factor that judges will take into account when passing sentence."

The Executive already commits £4million a year to Victim Support Scotland, which helped to operate the pilot schemes between November 2003 and November 2005.

Mr MacAskill acknowledged that rolling out the pilots will require extra funding, which is why the project will not officially be given the green light until after the government's forthcoming spending review.

David McKenna, the chief executive of Victim Support Scotland, said: "The final stages of a court case, particularly in cases such as rape and serious violence, are often the most distressing to victims of crime.

"At present, the defence can say anything they like because nobody can say 'that's not true'. The family will sit in court and hear lies and see nobody bothering to correct them because it doesn't affect the prosecution. They will hear someone being sentenced to five or six years and think that, if the court had been told that wasn't true, he would have got seven or eight years."

Under the pilot schemes, prosecutors told the victim or their family they were entitled to give a pre-sentence statement. They were then given a form and offered the help of Victim Support to fill it in. The form took the victim through the different areas where the crime might have impacted on them.

"Theoretically, there's nothing to stop the victim writing their statement on the back of an envelope," Mr McKenna said.

Bill Aitken, MSP, the justice spokesman for the Scottish Conservatives, said:

"I think these ideas have considerable merit and are worthy of support."
'You feel ignored - just like a number'

THE justice secretary's announcement has come too late for Frank Dewar and his wife, Allison.

Their 16-year-old daughter Karen was killed by Colyn Evans who attacked her with a knife, pushed her body into a bin and set it on fire.

It is more than two years since Evans was jailed for life for the murder that shocked a nation, but Mr Dewar still cannot understand why he and the rest of his family were "ignored" by the authorities as justice took its course.

Mr Dewar last night said he would have welcomed the opportunity to provide a pre-sentence statement to court, making clear to the world the damage the crime caused, not only to his family but to the community of Tayport in Fife, where the murder took place and where they continue to live.

He said: "The only statement we were allowed was one pre-prepared by a police officer that was read to the media.

"There was nothing. We were just put in a waiting room and told to stay there. Then we were led to court. After that, we were basically ignored all day."

Mr Dewar, 47, said he welcomed moves by the Scottish government to give victims and their families a bigger voice in the system.

He added: "We really would have liked to have the chance to express our feelings, just to put our point of view across to the judge and everyone else.

"There was a lot of anger. It had obviously affected the whole family, but it also affected the community of Tayport.

"At the moment, victims and their families feel awfully ignored. It's all too official. You feel just like a number."

As Evans was sentenced, in June 2005, Karen's friends and family shouted abuse at him in the courtroom.

One called out "animal" and shouted: "I hope you rot in hell, Evans."

The Dewar family had blamed social workers for "dumping" Evans in their village.

Fife Council placed Evans in a house in Tayport after he was released from a special needs school.

He had committed six sexual offences between the ages of ten and 16, five of which related to shameless and indecent exposure.

Notification scheme to be extended

THE number of victims of violent crime who can be warned when their attacker is released from prison is set to double.

At the moment, only victims in cases where the perpetrator is sentenced to four or more years in prison can sign up to the victim notification scheme.

That allows victims to be notified of the criminal's date of release, if the offender dies before release, if the offender is transferred outside Scotland, if the prisoner has escaped or absconded from custody, and the first time the offender becomes eligible for temporary release.

Victim Support Scotland (VSS) has been pressing the justice secretary, Kenny MacAskill, to drop the minimum tariff for the scheme to kick in from four years to one year.

Mr MacAskill has agreed in principle to lowering the minimum sentence and will now press his colleagues to sanction the extra funding required during a spending review later in the year.

Mr MacAskill said: "I believe that provision of accurate and timely information to victims is also important. That is why I am keen to find ways of expanding the victim notification scheme following a recent evaluation of its use for victims of serious crimes, I hope to at least double the number of victims covered by the scheme."

The scheme currently covers about 600 offenders a year and its expansion was last night welcomed by David McKenna, the chief executive of VSS. "It might not sound very exciting but the victim notification scheme really is very, very important for some people," he said.

"It can come as a really big shock for the victim of an assault to suddenly bump into their attacker in the street three and a half years after the case.

"We have asked for the scheme to be extended for cases where the offender is sentenced for 12 months or more."

Some academics have voiced concern that the scheme could be exploited by people who wished to carry out reprisal attacks, but Mr McKenna dismissed the suggestion.

"It is something of a myth that someone will be waiting at the prison gates with a baseball bat.

"People within the system say this never happens."
Judge left in tears at mother's devastation

ELIZABETH Davidson moved a judge to tears when she read out in court a witness impact statement describing her devastation after her daughter, Margaret, was killed in a car crash with a teenage motorist.

The 26-year-old junior doctor was driving to her home in Kidlington, Oxfordshire, in May 2006 when she was hit by Nolan Haworth, 19, overtaking on the brow of a hill while driving at up to 80mph in a 50mph zone. He was racing to court in a borrowed car with no licence to answer a charge of affray.

Dr Davidson had graduated from Oxford University in 2005 and was engaged to be married.

Mrs Davidson, from Hamilton, Lanarkshire, had her statement read out to judge Julian Hall at Oxford Crown Court last September.

It said: "Margaret was beautiful, fiercely intelligent and a caring, thoughtful girl who loved fun, good food and wine, and the company of family and friends.

"How do I feel knowing I will never see her smile again? How do I feel knowing I will never see her arrive off the train, toss down her bag and wrap her arms around me and hear her say, 'how's my wee mum?'

"Can you imagine the distress of having to choose the dress she will wear in her coffin instead of the one she will wear on her wedding day?

"I can't begin to tell you the sorrow of telling my son by phone that his dear sister was dead. All that talent, all that hard work, wiped out in an instant.

"After years of studying and hard work on her part and financial struggles on ours, Dr Margaret E Davidson BM BCHMA graduated from Oxford University.

On her way up to receive her degree, she turned to me and smiled a smile of sheer joy, love and gratitude.

"Less than a year later, I collected a very tasteful carrier bag containing a cardboard box labelled 'the remains of the late Dr Margaret E Davidson'.

"I don't know if these words have conveyed my sense of loss. Perhaps I should have saved your time and said I loved Margaret from her first breath, and I will love, mourn and miss her until my last."

Haworth was sentenced to four years in jail.

Calls for OFT to fine lawyers for market manipulation as Law Society & solicitors split on reforms to legal services

Firstly, to all of you who have recently send me information on your cases, I am progressing through them and will get back to you as soon as possible.

While trying not to be sidetracked on the debate into independent regulation of the legal profession in Scotland, I note this week, the media reports there are breaks between several legal firms and the Law Society of Scotland in terms of the profession's policy towards the deregulation of legal services in Scotland

It is of course, good to see diverging views from the legal profession on issues, where in the past, the Law Society of Scotland and it's inner circle of egos & dictators ruled the debate and how policy would be implemented against such major changes as the OFT now recommend

I can't but help wonder though, if this is a rerun of last year's strikes by the regional bar associations over the allegedly poor legal aid payments system, where it appeared that parts of the legal profession, namely the family law solicitors were taking initiatives on their own to boycott legal aid cases for increased legal aid payments, while the Law Society of Scotland supposedly stood by in the background, officially encouraging discussions, rather than strike, but all the while actually helping to arrange the case boycott strategy and sympathetic media publicity for the lot of legal aid lawyers, while making sure they slipped in a little part about requiring to retain the ability to control complaints against their legal colleagues ...

You can read some of the issues which cropped up in the legal aid case boycott here : Lawyers protests over low legal aid fees revealed to be fake as Law Society's own research points to increase .. so take note people, nothing is as it appears with the legal profession when it comes to policy being discussed in public ...

Getting back to the deregulation of legal services in Scotland, which is only starting to come into action now, after challenging FOI requests, revelations of interference from a former Lord Advocate, and of course the OFT making it's recommendations on the Which? 'super complaint' to open up access to justice, there remains significant questions to be answered on why, for the past 17 years, the relevant parts of Scottish Law which we have had sitting on the books since 1990 via the Law Reform (Misc Provisions) (Scotland) Act 1990, specifically Sections 25-29 were never enacted.

Of course, the simple answer to why Sections 25-29 were never enacted until March of 2007, lies with the Law Society of Scotland and the rest of Scotland's legal profession.

Simply - the legal profession didn't want the access to justice laws enacted, because it would destroy their monopolistic control over access to legal services, where up until now, anyone requiring legal services or needing access to the courts, must go through either an advocate or solicitor. With billions of pounds at stake in the business model of legal services in Scotland, there is little wonder the legal profession was protecting it's market monopoly for the past 17 years.

The planned opening up of access to legal services in the Law Reform (Misc Provisions) (Scotland) Act 1990 seems never to have had a champion of it's advantages .. the public had never been appraised of the intentions of the act to their full benefit ... the Scottish Legal Services Ombudsman had never made much comment on it either (despite the office of the SLSO actually being created from the same piece of legislation), and of course, successive administrations at the Scottish Executive & Scottish Office before it, failing to tackle the planned implementation of the reforms ... with even a serving Lord Advocate daring to interfere in the public's general right of access to justice, suggesting the reforming parts of relevant law be repealed.

However, now that things are out in the open, due in no small part to the campaign for independent regulation of the legal profession, the debate on access to legal services rages just as much as calls to completely remove any complaints & disciplinary procedures from the Law Society to the new Scottish Legal Complaints Commission - and that is a good thing, because it is clear the legal profession itself has stifled debate on tinkering with it's monopolistic business model for the past 17 years.

The Herald newspaper reports there are splits developing between some of the 'top law firms' and the Law Society of Scotland & Faculty of Advocates on how to proceed with the 'Clementi Reforms' which have come into force in England & Wales.

Good, it's about time the membership of the legal profession took a more proactive and independent view of things from the Law Society of Scotland, which after all, has led the Scottish legal profession to it's lowest standing in public esteem ever, with ever rising levels of complaints, poor standards of service, and an almost suspicion of any service on offer at all, given the lack of honesty, transparency & accountability which the public have long noticed over how lawyers do their business.

However, is this 'split' with the Law Society on the question of opening up access to legal services, genuine ? or purely for public consumption, while behind closed doors, the 'leading lights' of the Law Society & legal firms meet to carve up market control for themselves yet again, simply under another guise ....

The Law Society, particularly Douglas Mill, it's infamous Chief Executive, are known opponents of opening up access to legal services, and despite Mr Mill appearing on BBC News last week to 'welcome in the changes' with gritted teeth... the Law Society's underlying opposition to opening up the legal services market in Scotland remains as strong as ever .. with new tactics being adopted to control the qualifications needed to enter the legal services market ... currently controlled by, yes, the Law Society of Scotland.

There is also the question then of what the OFT should now do, in the wake of fairly conclusive evidence there has been market manipulation of legal services in Scotland for a significant period of time.

Last week, the OFT fined British Airways for market manipulation & price fixing... and since the legal profession has been engaged in the same actions for a much longer period of time - denying access to justice to those who have tried to get a lawyer to sue a lawyer, or pursue financial claims for loss against the actions of their solicitors, the OFT should now step in and fine the Scottish legal profession for their insidious market manipulation on access to justice.

In all of this debate & counter debate on access to justice, there has been no mention yet of the desire to tackle the sins of the past - where the membership of the legal profession has supported, or at least, allowed, the Law Society of Scotland to prejudice complaints to such a degree as to cause wholesale injustice to solicitors clients, ruined lives, lost health, lost homes & property, lost estates, lost funds, lost lives ....

Before the public can trust the legal profession again with honesty, transparency & accountability, there must be a genuine effort made to resolve the many cases of injustice that the legal profession itself has caused to thousands of clients over the years .. and if the legal profession itself doesn't want to put right those sins of the past, the likes of the OFT should take action to force such a move.

Herald article follows :

Top firms and Law Society split over plan to boost competition

IAN FRASER August 06 2007

A wedge has been driven between Scotland's largest law firms and their regulator, the Law Society of Scotland, over whether the country's legal services market should be opened to competition.

The rift became public following the publication last week of recommendations on lifting restrictions in the market for legal services in Scotland by the Office of Fair Trading. The OFT effectively gave the Scottish Executive until the December 2007 at the latest to come up with concrete proposals for reform of the legal services market.

Larger firms in Scotland, including Dundas & Wilson, last week told The Herald they warmly welcomed the OFT's recommendations - and, indeed, confirmed that they had been instrumental in shaping the consumer watchdog's thinking.

Alan Campbell, managing partner of Dundas & Wilson - which with 600 employees and annual turnover of £60.8m, is Scotland's largest law firm - said that he attended a high-level meeting with OFT officials alongside senior representatives from law firms McGrigors, Maclay Murray & Spens, Shepherd & Wedderburn and Pagan Osbourne six weeks ago.

He said that at the meeting, held on 13 June, there was "total unanimity" from the solicitors present. He said they supported having a level playing field between Scotland and England on deregulation of the legal profession and argued that anything else would be potentially both anti-competitive and against consumers' interests.

"At its heart, what we want is for lawyers to be able to share profits with non-lawyers subject to suitable regulatory safeguards," Campbell added.

What was happening instead was vested interests were working to ensure the current closed shop' is maintained said Campbell. He went on to attack the key plank in the arguments of Roy Martin, dean of the Faculty of Advocates and Douglas Mill, chief executive of the Law Society of Scotland.

Both have said that Scotland's legal services market is different from that in the rest of the UK and, therefore, requires different policies and structures. However, Campbell said: "Anyone who pretends that the market for legal services is substantially different in Scotland from that in England and Wales is simply kidding themselves. Jurisdiction on its own cannot define a market. If it does, it is anti-competitive."

He added that to claim that the services provided by law firms are in any way unique and incapable of being replicated elsewhere is "a fallacy."

Campbell questioned earlier claims from the Law Society of Scotland that a super-complaint from consumer advocate Which? was premature.

"In my view it was very timely indeed. Law firms need time to plan ahead and to mobilise," he said referring to the argument used by some that, since reforms intended to sweep away restrictive practices in the legal profession in England and Wales, do not take effect until 2010-11, there is no need for regulators and politicians in Scotland to act now.

"We need to know what the policy is going to be in Scotland, so that we can ensure we can make appropriate plans that ensure the sustainability of our own businesses," said Campbell. "There is already divergence between England and Scotland and each day it gets wider."

Asked if the Law Society's stance on deregulation smacks of protectionism, Campbell said it was, "difficult to see it otherwise".

Colin Gray, managing partner of McGrigors, echoed some of those sentiments. He said: "McGrigors welcomes the OFT's recommendations, which will help to create a level playing field across the UK legal market. Such liberalisation will enable providers of legal services to gain access to more capital, attract and retain talent and develop new service lines.

"What is important is that legal firms operating in the Scottish market are able to innovate and grow, as well as compete fairly with peer firms operating throughout the UK. We must avoid limiting choice for clients, which in turn may have a negative impact on the region's economy."

Alistair Morris, chief executive of Pagan Osbourne, also said he welcomes the OFT's recommendations. He has already said that he believes the implementation of Clementi reforms in Scotland would revolutionise the legal profession for the better.

He said: "The law remains a cottage industry with an anachronistic culture, and it is ripe for consolidation. If law firms were permitted to raise equity from external investors, it would hasten that process."

Campbell implied that for the Law Society to launch another "talking shop" on the issue of alternative business structures on September 28 is too little, too late. He said: "The OFT has effectively said to both the executive and the Law Society that they must up their game. However, they don't really appear to have got the message yet."

Mill, chief executive of the Law Society of Scotland, said: "What we must ensure is that Scotland seeks its own solutions and that access to justice and protection of the public remain core to any plans for reform.

"We are now planning a second conference in Edinburgh on September 28 to explore the opportunities which the creation of alternative business structures could bring to Scottish law firms, while also examining the regulatory issues they may present. We intend to bring forward our ideas on these issues later this year.

"We have continued our discussions with the Scottish Executive on the future of legal services in Scotland and Justice Secretary Kenny MacAskill has already spoken about Scotland's law firms being able to compete outwith their borders as well as within' and that change is necessary."

MacAskill and the Executive have 90 days to outline their approach to remove restrictions in Scotland.

Sean Williams, the OFT's executive director said: "I hope the Scottish Executive can work with the profession to remove restrictions that, in our view, are unnecessary and prevent solicitors and advocates from innovating to meet the needs of consumers."

Justice Secretary seeks Scottish solution for legal reform as Tories urge lawyers should get their own way

Kenny MacAskill seeks a "Scottish Solution" to giving wider access to justice & legal services but what "Scottish Solution" is our dear Cabinet Minister talking about ?

The attempt 17 years ago via the Law Reform (Misc Provisions) (Scotland) Act 1990 to open up the legal services market via Sections 25-29 ? Surely not ... it's been a whole 17 years since that was put on the books, and hardly a cheep cheep from the SNP or anyone else for that matter.

Maybe Mr MacAskill is talking about another "Scottish Solution" to opening up the legal services market - such as the one put forward by former Lord Advocate Lord Hardie - which was to bury the whole thing and let the lawyers keep their monopoly, as I reported here :

Former Lord Advocate Andrew Hardie revealed as major obstacle in removing lawyer-advocate monopoly on legal representation

Enough of the "Scottish Solutions" please !

The Scotsman today reports that rather than taking the OFT recommendations for opening up access to legal services in Scotland : "Instead, Mr MacAskill wants to work out a solution with the profession in Scotland, not have a decision imposed on him."

Yes, fine, that's great .. but who will be leading who in such an arrangement? Will there be another tantrum from the legal profession at the next meeting going something like - If you don't give us what we want, the deal over the legal aid strike & case boycotts is off ?

The previous Scottish Executive introduced the Legal Profession & Legal Aid (Scotland) Act 2007, which had a rough ride through Parliament, and was the subject of threats of legal action from the Chief Executive of the Law Society if the Bill as it was passing through Parliament wasn't amended to the legal profession's satisfaction. What happened ? the bill was amended, although not fully to the lawyers preferences.

One of those who raised amendments for the Law Society of Scotland - Tory MSP Bill Aitken, pops up in this debate urging the Executive to refuse to implement the OFT's recommendations, reports the Scotsman in the following quote : "I urge the new Scottish government to resist these plans."

Quite clear that Bill Aitken MSP is definitely not interested in the consumer interest and the rights of the Scottish public to wider access to justice - an awful view indeed coming from the Convener of the Scottish Parliament's Justice Committee. Perhaps he needs replaced as Convener if he is so decidedly against wider access to justice ?

Why has Bill Aitken and his colleagues not made more of the fact we've had the laws in place in Scotland since 1990 - via the Law Reform (Misc Provisions) (Scotland) Act 1990 to open up the legal services market ?

The 1990 Law Reform (Misc Provisions) Act was passed by a Tory government after all .. but little has been done with it in the past 17 years .. and not a cheap from Mr Aitken or colleagues on this fact ... and even less from the SNP, where many of it's own members, including Mr MacAskill's ministerial colleagues, have had problems with lawyers & the Law Society of Scotland.

Here's some examples of a fine "Scottish Solution" to access to justice & problems in the legal profession

John Swinney, the Cabinet Secretary for Finance & Business, has spoken in Parliament for constituents who have had severe problems with the legal profession in Scotland. Since Mr Swinney's remit does cover Business & Finance, I would hope, he has some critical things to say about the legal services market issue which is controlled by the legal profession as a monopoly and perhaps Mr Swinney may wish to contribute to the OFT recommendations given his first hand experience on such issues ....

Here's John Swinney, the Cabinet Secretary for Enterprise talking about one such case, among many...

To our Justice Minister - Mr MacAskill - Please give the Scottish public as good a chance of access to justice as England & Wales ... surely the public deserve a shout now rather than the professions who are more interested in money & profit than giving everyone access to legal services.

and while we're at it, how about a "Scottish Solution" to changing the top notchers over in Drumsheugh Gardens ? because they are getting very far from top notch these days ...

Here's Douglas Mill .. 'welcoming in the OFT's reforms' to BBC News, which I just happened to find on the internetl luckily ..... but a rather different policy is being pursued by Mr Mill & colleagues, where the Law Society are going to keep control of the qualifications required to enter the legal market .. thus limiting who practices law yet again .. and limiting who gets access to legal services !

Over to the Scotsman report on Mr MacAskill's view ... how long until the big "DoH" ?

MacAskill seeks Scots solution to law reform

HAMISH MACDONELL SCOTTISH POLITICAL EDITOR

MINISTERS insisted yesterday they would not be pushed into introducing full competition into Scotland's law services, despite a call by the UK's competition watchdog to lift restrictions.

The Office of Fair Trading has recommended current rules on how legal services are provided be reformed to open up the profession to competition from new providers, including high-street banks and supermarkets.

Kenny MacAskill, the Justice Secretary, has three months to formally reply to the OFT but yesterday his spokesman said that, while the minister accepted the current situation could not continue, he would not just follow the OFT's decision.

Instead, Mr MacAskill wants to work out a solution with the profession in Scotland, not have a decision imposed on him.

Law services in England are being deregulated and the OFT believes Scotland should go the same way.

But the Executive spokesman said Mr MacAskill did not believe it was right just to follow the English example; instead, he wanted a "Scottish solution".

The spokesman said: "The Justice Secretary has already made clear that the status quo is not an option. However, he is equally insistent that he does not see any point in the profession blindly following the approach of the profession south of the border.

"We are looking for the Faculty of Advocates and the Law Society to help design distinctively Scottish solutions."

Douglas Mill, chief executive of the Law Society of Scotland, also took a cautious approach, saying he wanted to develop an intrinsically Scottish solution.

Mr Mill said: "The Society wants to see Scotland's legal profession thrive in today's global market. What we must ensure, though, is that Scotland seeks its own solutions and that access to justice and protection of the public remain core."

Colin Gray, managing partner of McGrigors LLP, one of the country's biggest law firms, welcomed the OFT's ruling, claiming that, if implemented by the Executive, it would allow ambitious firms to grow.

"Such liberalisation will enable providers of legal services to gain access to more capital, attract and retain talent and develop new service lines," he said.

But Bill Aitken, the Conservatives' justice spokesman, warned that the changes might result in big businesses "muscling in" and squeezing out smaller firms.

"These measures will cost more, reduce rather than increase choice and result in a loss of legal expertise," he said.

And he added: "I urge the new Scottish government to resist these plans."

OFT recommends lifting of lawyers monopoly on access to justice & legal services in Scotland

After a long battle between campaigners, consumer organisations, and the Scottish legal profession to get access to legal services opened up, the Which? super complaint seems to have done the trick with the OFT announcing today it was recommending the lifting of restrictions on the legal services market in Scotland, where for some time, anyone wishing or needing access to legal services or the courts has been forced to use a lawyer or advocate ... but if that lawyer or advocate, or their professional colleagues didn't want you obtaining legal services, or getting to court, that was it.

You can read the Office of Fair Trading statement released today here : OFT response to super-complaint recommends lifting restrictions in the Scottish legal services market and you can download the full response to the Which? 'super complaint' here : OFT full response to the super-complaint (pdf 139 kb)

All eyes turn now to our Justice Secretary Kenny MacAskill who wrote in Monday's Scotsman of his slight reluctance to give Scottish consumers the full benefits if the Clementi reforms which are enjoyed in England & Wales .. for reasons many seem to suspect are more protective of the legal profession rather than the public interest.

What is it to be Kenny ? open up the legal services markets as they should be ? or keep them closed because Douglas Mill & colleagues fear their wallets getting thinner while members of the public break out of the lawyers control on access to justice ...

Shouldn't we be doing away with this culture of injustice which has been generated by appallingly blatant interference from the legal profession in public life as this problem over access to justice ? where for 17 years, the Law Society of Scotland, along with allies from the judiciary and willing politicians have kept Sections 25-29 of the Law Reform (Misc Provisions) Act (Scotland) 1990 off the books, simply to maintain their money making business monopoly and restrict everyone's right to access legal services ?

Maybe the Justice Secretary should also be looking to extend the powers of the new Scottish Legal Complaints Commission and remove all regulatory functions from the Law Society of Scotland & Faculty of Advocates because both self regulators have proved they don't have any impartiality at all, and got used to pursuing an agenda of anti client bias which will never change.

The Justice Secretary might also be advised to keep a close eye on fiddles & dirty tricks presently put into motion by the Law Society of Scotland over the new SLCC to gain a foothold within it's organisational structure ...

Here are some of the articles I've covered on the access to justice issue in the past, showing the difficulties of breaking the solicitors & advocates stranglehold on legal services in Scotland .. a lot of opposition of course from the legal profession and friendly politicians is evident, due to the size of the legal markets in profit terms .. and those little advantages which come from being the only ones who decide who gets access to justice and who gets justice denied....

Justice Secretary MacAskill speaks of pride and need for change in Scottish legal profession

Scots Law Chiefs turn hostile on consumer organisation in propaganda war against deregulation of legal services markets

Consumers call for OFT Inquiry to investigate restriction of legal services in Scotland

Law Society of Scotland reject Which? 'interference' & "super complaint" to OFT against lawyers monopoly on access to justice

Scottish Executive thought to be blameworthy for allowing restrictive practices in legal services

Scottish Executive fails to block FOI disclosure on records of restricted access to Courts

Former Lord Advocate Andrew Hardie revealed as major obstacle in removing lawyer-advocate monopoly on legal representation

Articles follow from the OFT & Scotsman (with some particularly interesting comments on their forums) :

OFT response to super-complaint recommends lifting restrictions in the Scottish legal services market

110/07 31 July 2007

The OFT has today made recommendations to the Scottish Executive and the legal professions in Scotland to lift restrictions which could be causing harm to consumers.

In Scotland there are restrictions on advocates' business structures, solicitors and advocates providing services jointly, third party entry into the market, and direct consumer access to advocates. The decision to recommend lifting these restrictions follows a super-complaint from Which? that called for these restrictions to be removed.

Download full response to the super-complaint HERE (pdf 139 kb).

Which? argued that the current restrictions against such practices prevent legal services providers in Scotland from adapting their business to best fit the needs of Scottish consumers. The OFT concluded that the restrictions are unnecessary and believes that there would be benefits to consumers if they were lifted – such as efficiency gains and higher levels of innovation in the provision of legal services. The OFT is now looking to the Scottish Executive to outline its approach to removing these restrictions in Scotland, and the Scottish Executive has agreed to respond formally to these recommendations within 90 days.

Sean Williams, OFT Executive Director of Markets and Projects, said:

'There should be real benefits to Scottish consumers in allowing solicitors and advocates to adopt the most efficient businesses structures. I hope the Scottish Executive can work with the profession to remove restrictions that, in our view, are unnecessary and prevent solicitors and advocates from innovating to meet the needs of consumers.'

Kyla Brand, OFT Representative in Scotland, said:

'Scotland's legal services are hugely important for individuals and businesses – they underpin economic success and have always done so. The OFT wishes to see them grow and innovate, competing on equal terms with providers across the UK. We are committed to working with the parties in Scotland to make the system work better for all.'

NOTES

1. The right to submit super-complaints was created by section 11 of the Enterprise Act 2002. A super-complaint is defined under section 11(1) of the Act as a complaint submitted by a designated consumer body that 'any feature or combination of features, of a market in the United Kingdom for goods or services is or appears to be significantly harming the interests of consumers.'

2. On 8 May 2007 Which? submitted a super-complaint to the OFT about credit card interest calculation methods. See Which? website for details. Section 11(2) of the Act requires the OFT, within 90 days of receiving a super-complaint, to publish a reasoned response saying what action, if any, it proposes to take.

Scotsman report follows :

Call for end to lawyers''closed shop'

HAMISH MACDONELL AND JOHN ROBERTSON

A RADICAL overhaul of Scotland's legal system to give consumers greater choice and a cheaper service will be recommended today by the UK's competition watchdog.

The Scotsman has learned the Office of Fair Trading (OFT) wants to lift restrictions on the way lawyers operate in Scotland, opening up the profession to competition for the first time.

That would pave the way for high-street banks and even big supermarket chains such as Asda and Tesco to enter the market.

The Scottish Executive has agreed to respond to the OFT within three months and ministers are expected to accept the recommendations and deregulate the legal profession, bringing in full competition.

If that happens, it will revolutionise the way law services are provided and dismantle the closed arrangements between solicitors and advocates that have existed for centuries.

The OFT move was prompted by a "supercomplaint" filed by the consumer group Which? It argued that the strict controls on how legal professionals in Scotland were allowed to practice hindered market innovation, restricted consumer choice and might have led to higher prices.

At present, solicitors are not allowed to go into partnerships with non-solicitors, constraining companies from other fields from offering legal services and stopping solicitors from setting up joint groups with accountants or surveyors - groups that Which? believes could offer cheaper services to consumers.

Also, solicitors are the only people allowed to instruct advocates, a restriction that the OFT believes simply adds another layer of bureaucracy and cost to the process.

The OFT will recommend today that all these restrictions are swept away and the watchdog has made it clear it wants early and definitive progress from the Executive.

Kyla Brand, the OFT's representative in Scotland, said last night: "We are asking that there should be clear progress on this. There should be some policy statement by the end of the year."

She confirmed that, if the OFT's recommendations were implemented in full, it could mean the complete deregulation of the profession and the introduction of new players, such as supermarkets or banks. But she stressed that would depend on the way ministers and the legal profession decided to implement the changes.

The OFT did not take a definitive view on the call for an independent regulation body for the profession, taking control of solicitors away from the Law Society of Scotland. Ms Brand said this should only be decided once the Executive and the legal profession had decided to proceed on the lifting of regulations.

Kenny MacAskill, the justice secretary, is on holiday and was unavailable for comment last night. But yesterday, he wrote an article for The Scotsman making it clear he expected to drive through change in the legal profession and that the status quo was no longer an option.

The legal services profession in England is already some way down the road to deregulation, and there have been fears that Scotland could be left behind if it was not able to compete on a "level playing field".

Julia Clarke, from Which?, was delighted with the OFT's decision. She said: "They have confirmed our view that the current system of regulation is failing consumers. We now hope the restrictions will be lifted."

A spokesman for the Faculty of Advocates, which had given a cold reception to the Which? supercomplaint, would only say: "The faculty cannot comment upon a rumour."

Michael Clancy, of the Law Society of Scotland, which had called for no action by the OFT, said: "The supercomplaint was an important document and the society made its views known about the content of it."

Q & A: LEGAL 'SUPERCOMPLAINT'

Why was a complaint made?

Which?, the UK's largest consumer body, submitted a "supercomplaint", as defined in the 2002 Enterprise Act, to the Office of Fair Trading.

Which? asked the OFT to recommend removal of current restrictions within the legal services sector, including those on non-legal ownership of firms - allowing outside companies to own and run law firms - and access to advocates, which generally has to be through a solicitor. The argument was that existing business structures and working practices restricted consumer choice and could inflate prices.

Did Which? want to see anything else done?

Yes. It has a vision of an independent Scottish Legal Services Board to watch over regulation of solicitors and advocates or to take regulation completely out of the hands of the Law Society of Scotland and the Faculty of Advocates.

Was Scotland being singled out for reform?

No. England and Wales have led the way in many of the areas under consideration and legislation is currently going through the Westminster parliament to apply south of the Border.

What did the Law Society of Scotland make of the supercomplaint?

The society called for no action by the OFT, while recognising that some larger law firms in Scotland supported the introduction of alternative business structures as a way of trying to ensure a level playing field with English counterparts.

How strongly did the society make its feelings known about the supercomplaint?

Its chief executive, Douglas Mill, stated: "It is disappointing Which? has produced a document which has no evidential base and which does not contribute in a meaningful way to the debate on the legal services market in Scotland."

Was the Faculty of Advocates more tempered?

Not really. It warned of access to justice coming under "serious threat" and the dean, Roy Martin, QC, said: "It is not appropriate simply to translate arrangements passing through parliament in Westminster directly into Scotland. It may be said that the purpose of the supercomplaint is no more than to try to create a uniform regulatory regime throughout the UK for no reason other than regulatory consistency."