Wednesday, January 07, 2009

Lawyers monopoly on legal services set to last until 2011 as MacAskill's 'dithering consultation' delays wider access to justice for Scots

Kenny MacAskillScottish Justice Secretary Kenny MacAskill today announced the long awaited 'consultation paper' on the Legal Profession Bill, which the Scottish Government claims will open up the Scottish legal services market to competition, a position which came about only after the Office of Fair Trading in 2007 ordered the current lawyer controlled monopoly on legal services to be ended.

The year long wait by Kenny MacAskill to do anything other than announce a rather long winded consultation document, which has been authored mostly by a consultation group comprising members of the Law Society of Scotland (who wish to retain market monopoly on legal services) questions any sentiments the move on the Scottish Government's part to widen access to justice is a genuine one.

Mr MacAskill it seems, prefers instead to stumble along at the slowest pace possible, at the behest of the likes of the Law Society of Scotland & Faculty of Advocates, to maintain the closed shop of legal services for as long as possible, where even after today’s consultation will end in April of 2009, it will take until at least mid 2010 to get the legislation into Parliament, in turn probably seeing no implementation until 2011 !

You can read my report relating to the OFT's 2007 announcement here : OFT recommends lifting of lawyers monopoly on access to justice & legal services in Scotland with Kenny MacAskill's fairly weak response here : MacAskill seeks 'Scottish Solution' amid Law Society arm twisting on legal reforms

The Law Society's pitiful proposals on opening the legal services market, with the proviso they are solely allowed to regulate it, can be read here : Law Society's proposals on legal services market overhaul spin wide of the mark on public interest with a further report here : MacAskill struggles to hold back 'Tesco Law' as Law Society dithers on access to justice reforms

Staggeringly, while Mr MacAskill was making the grandiose announcement today on his legal services consultation, there were revelations the Justice Secretary had made earlier attempts last week at the Scottish Parliament to kill off Petition 1197, brought about by Bill Alexander, the Chairman of the Association of Commercial Attorneys, who via his petition, is seeking to open the legal services market up, and allow Parliament a much speedier look this year at the advantages of an open legal services market model (where a host of qualified professionals could offer cheaper, more competitive and speedier legal services), as opposed to the Law Society of Scotland's preferred 'closed shop monopoly' model, where simply you have to use a Law Society controlled solicitor if you want access to justice, and of course be at the mercy of the Law Society's infamous lack of standards, regulation and control over its widely poor quality solicitor membership.

In stark ccontrast to today’s consultation announcement, Kenny Macaskill commented to the Scottish Parliament last week :

'”The Scottish Government believes that this legislation [the existing Sections 25-29 of the Law Reform (Misc Provisions) (Scotland) Act 1990 ]is appropriate to Scotland. It allows members of bodies who are not solicitors to apply for extensive rights to conduct litigation and of audience. It ensures that appropriate standards of conduct and practice are maintained in the Scottish courts.

It also safeguards the consumer in that the Lord President, in consultation with Scottish Ministers, will decide what in courts and in what cases it is appropriate for members of the applicant body to exercise those rights. In so doing, the Lord President and Scottish Ministers are mindful of the training and experience required of its members by the applicant body. Consequently, there are no plans at present to amend the system of authorisation for rights of audience"

However, the Justice Secretary went on to reveal in his comments to the Scottish Parliament that while he believed the law shouldn't change on legal services, the only application granted so far under present legislation was approved with severe restrictions and conditions, making a complete mockery of the concept of an open legal services market :

"The Lord President and Scottish Ministers have approved the scheme submitted by the Association of Commercial Attorneys for rights to conduct litigation and rights of audience subject to conditions. The Association has accepted those conditions."

You can read more about the conditions imposed on the Commercial Attorneys in a previous report on the issue I wrote here : Non-lawyer rights of audience approved ‘with restrictions’ as Scottish Government continues to waver on access to justice reforms

You can read Mr MacAskill's attempt to kill off any Parliamentary consideration of opening Scotland's legal services market this year, here : Kenny MacAskill - compention in legal services is generally not a good idea unless lawyers say so (pdf)

Anything for a little delay then, to protect the Law Society’s control over Scotland’s legal services market and the Scots public’s access to justice for a few years, forcing the public into using Scotland’s notoriously high cost, poor quality, and poorly regulated Law Society solicitor membership, who invariably end up ripping off clients on an unimaginable scale.

I will write more about Petition 1197 in a later article, but for now, here is Mr MacAskill’s announcement of the legal services consultation, along with details on how to participate, which I hope as many of you who can, will do so !

You can download a copy of the consultation direct, in Adobe Acrobat PDF format here : Wider choice and better protection: A consultation paper on the regulation of legal services in Scotland

Closing date for sending in the completed consultation to the Scottish Government is Friday 3 April 2009.

Please return your completed consultation document online to :

You can also ask for a printed version of the consultation by contacting the Scottish Government direct at :

Legal System Division
Constitution, Law and Courts Directorate
Scottish Government
Area 2W
St Andrew's House
Regent Road

Proposals for alternative business structures (ABS) for the legal profession in Scotland

Proposals for alternative business structures (ABS) for the legal profession in Scotland were today published for consultation by Justice Secretary Kenny MacAskill.

Some of the main proposals for inclusion in the forthcoming Legal Profession Bill include:

* Reform of the regulatory framework for legal services, and removal of the restrictions on the types of business models under which a solicitor can offer such services, while allowing the traditional business model to remain an option for those who choose to carry on practising within that structure.

* Regulation of ABS to apply to any other form of business where a legal professional is involved in the provision of legal services to third parties.

* ABS to be regulated by an approved regulator, authorised to regulate that form of business by Scottish Ministers, with the agreement of the Lord President.

* Professionals within that ABS to continue to be regulated by their own professional bodies.

* ABS and professionals working in them to continue to be subject to any subject-specific regulation (such as financial services and immigration advice).

* Outside ownership to be permitted where those holding an interest in a legal practice pass a "fit to own" test and comply with an appropriate code of conduct and

* The Governance of the Law Society to be reviewed and the regulatory arrangements for the Faculty of Advocates to be made clear.

Kenny MacAskill said:

"This is a once-in-a-generation opportunity to create a more flexible and modern regulatory framework for Scotland's legal services. A flourishing legal profession is a crucial part of the supportive environment for our businesses.

"The proposals put forward by the Law Society and Faculty of Advocates earlier this year made clear that the regulatory framework must be proportionate to the size and scope of the legal services market in Scotland. We want to avoid having too many bodies and unnecessary tiers of regulation. Instead we should concentrate on developing a robust system of regulation to protect the profession's core values and enshrine the profession's commitments to service, probity and excellence.

"We also want to avoid any confusion or disadvantage to consumers where there are new structures which may bring together different professions.

"I believe the proposals published today for consultation will help the profession to remain successful and innovative in the face of increased competition and in the difficult economic climate that we are all currently going through.

"I would encourage anyone with an interest in this important issue to have their say on the future of Scotland's legal services."

Which? submitted a super-complaint to the Office of Fair Trading (OFT) asserting that the current regulation of Scottish legal forms restricts choice to consumers and prevents the formation of alternative business structures (ABS). In its response the OFT did not assume that the changes being proposed in England and Wales at that time, and subsequently enshrined in the Legal Services Act 2007, would be automatically suitable for the Scottish market but it recommended that by the end of 2007 the Government should publish a statement detailing its policy views in response.

On November 1, 2007, the Law Society of Scotland published a consultation paper entitled 'The Public Interest: Delivering Scottish Legal Services - A Consultation on Alternative Business Structures".

Later that month Justice Secretary Kenny MacAskill outlined the Government's approach to Parliament which was unanimously endorsed. He asked Scotland's legal profession to meet the challenge of change in the light of a changing marketplace, both nationally and globally, and invited them to come forward with a Scottish solution.

The Scottish Government published its response to the OFT in December 2007 which detailed its policy views on lifting restrictions on ABS, where considered appropriate, for the Scottish legal services market.

The Society published detailed proposals and the Faculty of Advocates published their response in spring 2008. Kenny MacAskill welcomed these responses in Parliament on June 11, 2008.

To help inform the Government's proposals Kenny MacAskill set up a consultative group to explore these issues. Some of the country's leading legal and consumer experts were represented on it.

The Scottish Government today brings forward proposals for the Legal Profession Bill which the First Minister announced as part of the legislative programme on September 3, 2008. The proposals in this paper for a robust regulatory regime will allow alternative business structures to operate in an open, transparent and accessible way in Scotland's legal services market.


Anonymous said...

haha they will HOPEFULLY be out of office by the time it comes round either that or Scotland will be a desert.

good work keep it up and keep rattling MacAskill's beer bottle

Anonymous said...

Clearly Mr MacAskill has learned from the Scottish Law Commission who recently announced a 4 YEAR review by way of excuse for its conspicuous failure to engage in any constructive way with the points raised by the Bill Alexander petition.

Then there is Lord Hardy's example. He obstructed the enactment of sections 25-29 at every turn for several years - and has I understand recently had to remove himself from hearing a judicial review following the request of the (unrepresented) Party who claimed a potential for a conflict of interest.

In my opinion Lord Hardy should be dismissed for undermining the legislation of a democratically elected UK Government - and showing a breathtaking contempt for the law in the process.

odd job said...

Speed them up a bit Peter - we will all be dead by 2011 !!!

and while you are at it here's some good news from the credit crunch - lawyers losing their jobs !

Solicitors firm set to cut jobs
Thorntons has offices in Dundee, Perth, Arbroath, Forfar and Edinburgh

One of Tayside's leading legal firms is set to cut between 40 and 50 jobs.

Thorntons has 32 partners and more than 350 staff at offices in Dundee, Perth, Arbroath, Forfar and Edinburgh.

The cuts were announced following a review, begun in October, which considered how to ensure the company survived the current economic downturn.

Compulsory redundancies may be necessary and bosses at the solicitors have asked for volunteers to reduce working hours or take career breaks.

All areas of the firm will potentially be affected by the cuts.

'Last resort'

Nick Barclay, managing partner at Thorntons, said: "During the past six months, in common with most businesses, we have encountered unprecedented market conditions which have led to us facing significant challenges.

"We have endeavoured to keep staff fully advised on the situation and have adopted a very cautious and prudent approach to the management of our business, including freezing recruitment, reduction in overtime and staff voluntarily reducing hours, while strict cost controls and financial protocols have been put in place.

"However, following the review which commenced in October and with business at its current level, it will, very regrettably, become necessary for us to make redundancies to ensure the future success of the firm.

"This is very much a last resort and we thank our staff for their tremendous support throughout these difficult times."

Consultation with staff is likely to last until mid-February and then a final decision on job losses will be made.

Anonymous said...

2 years of delay ? How much are the SNP getting paid to keep lawyers in their jobs then ?

SNP play with peoples lives & wallets said...

Kenny MacAskill the foot dragger :

Judge issues Hep C probe deadline
Blood samples
More than 4,000 people were infected with Hep C before effective screening

Ministers have been given a deadline of a month to arrange an inquiry into the deaths of two people from Hepatitis C contracted through NHS blood products.

Relatives went to court to try to force the authorities to hold an inquiry into how Eileen O'Hara and Rev David Black contracted the virus while in NHS care.

After a judge ruled in favour of the families early last year, the Scottish Government promised a public inquiry.

However, eight months later, no date has been set and no judge appointed.

Mrs O'Hara and Mr Black died in 2003 after contracting Hepatitis C through blood transfusions or blood products supplied by the NHS.

Manifesto promise

Last February, Court of Session judge Lord Mackay ruled that their relatives had the right to expect a reasonably prompt inquiry into their deaths.

He said: "Since the deaths of Mrs O'Hara and Mr Black, both the Lord Advocate and the Scottish ministers have acted in a manner incompatible with the European Convention of Human Rights of the deceased."

Lord Mackay quoted article two of the convention, which states that "everyone's right to life shall be protected by law".

He quashed the Lord Advocate's decision not to hold Fatal Accident Inquiries into the deaths and also referred to ministers' refusal at the time to hold a full public inquiry into the general issue of infections through NHS blood products.

After this ruling, Health Secretary Nicola Sturgeon said she would honour an SNP manifesto promise to hold a public inquiry into how NHS patients were infected during the 1970s and 1980s.

'Move quickly'

Ministers appointed Judge Lady Cosgrove to chair the inquiry but she withdrew from the appointment for personal reasons.

A Scottish Government spokeswoman said: "We are currently in the process of appointing a new chair and a fully staffed inquiry team is now in place.

"Once a new chair is appointed - an announcement is expected shortly - the inquiry's work will move ahead quickly."

However, in a supplementary opinion issued on Wednesday, Lord Mackay said he was giving the Scottish Government and Lord Advocate Elish Angiolini four to five weeks to comply with his original ruling and set up the inquiry.

Mrs O'Hara and Mr Black were among more than 4,000 people who became infected with the virus during the 1980s, before effective screening.

The Scottish National Blood Transfusion Service did not introduce any Hep C screening test for blood donations until 1991.

Anonymous said...

I just downloaded the 'consultation' paper which is bloody complicated to say the least.
I suppose its been designed that way to complicate things and protect Kenny's colleagues fat profits from leeching off the rest of us.

Not a good effort on the SNP's part they are showing themselves for what they are which is not a party of the people a party of business and crooks

Anonymous said...

I just downloaded the 'consultation' paper which is bloody complicated to say the least.
I suppose its been designed that way to complicate things and protect Kenny's colleagues fat profits from leeching off the rest of us.

Not a good effort on the SNP's part they are showing themselves for what they are which is not a party of the people a party of business and crooks

Anonymous said...

what a laugh to say the least - jocks turn out to be the biggest shits to their own ! now there is a big surprise !

and you lot want independence ? what a bunch of losers

Anonymous said...

Clearly you are the foremost writer on legal affairs in Scotland Mr Cherbi.Its a pity you don't have a column in a newspaper or a tc spot where you would get wider coverage.

Good luck for your campaign.

Peter Cherbi said...

Thanks for all your comments so far and the links to the BBC News stories on some interesting issues. I will pursue those further.

My personal feeling is the consultation announced today is a sham, the same type of sham we usually receive when a Government wants to be seen to doing something when clearly it wants to do nothing.

I believe it is up to us to persuade the OFT to act sooner than later, and not wait for Mr MacAskill's long winded consultation which will ultimately achieve nothing.

Anonymous said...

There is a problem in this debate with the Law Society effectively ordering everyone around.You have to get rid of the Law Society before something positive will happen for everyone else.

You are also correct about getting the OFT to act now rather than waiting on stupid MacAskill's consultation.

Anonymous said...

I agree with your points Peter.The consultation is nothing more than a delaying tactic from a man who you already point out has said on video he will always protect the legal profession and owes it a great debt.

We can expect nothing from this SNP Government pro consumer protection - they are all about business and who pays their way.

Anonymous said...

I am not a lawyer but there has to be something very wrong if the OFT say the market should be opened up and then have to wait 4 years to see if the Scots are going to do so.

Anonymous said...

That consultation is the most confusing worst piece of propaganda Ive ever read to promote lawyers.I cant see many people being able to fill it all out but its probably been designed that way so the Law Society can send in a lot of fake forms.Proves MacAskill is working closely with bent lawyers without doubt

Anonymous said...

The plans are unworkable in the current business climate and all that will happen is that legal firms will end up being bought up by Tesco & crowd to deal with the public so unless you have a better idea everyone will still be using a lawyer and the law society will get to see all those lawyers are its members !

Anonymous said...

Just reading the first couple of pages of that consultation put me to sleep.Is that MacAskill's idea ?

Anonymous said...

I get the feeling this Legal Profession Bill will do the same as the Judiciary & Courts Bill - consolidate power in the hands of the lawyers and their friends once again

Anonymous said...

I share the concerns of those saying the consultation paper is overly complicated but as many people as possible should try to fill out as much as they can if this issue is to get a fair hearing.

Anonymous said...

Thanks for keeping us informed Peter.I will fill in the survey and send it back and tell them exactly what I think of our rubbish legal services

Anonymous said...

Yes Peter,its very clear MacAskill doesn't want anyone to say yes to the question of having more choice of legal representation !

After all he might have to go back to being a lawyer if he ever gets chucked out of office (with a bit of luck)

Anonymous said...

unworkable as one of the comments say but as you point out this is a sham consultation anyway so not to worry

Anonymous said...

It was revealed in 2011 the SNP killed off any legal reforms for a large cash sum in a big fat envelope from the legal profession .... to be expected ?

Anonymous said...

so no change - the Law Society gets to fuck people over as usual and bent lawyers can rape clients at their leisure.

MacAskill is certainly sticking to his word of protecting lawyers !

Anonymous said...

I bet the law society must have paid a lot already to get MacAskill to make all these delays to the rest of us
really makes my blood boil to say the least and only scum lie in bed with lawyers as we all know

Anonymous said...

Well done Peter.I hear the Law Society are gearing up for a long production run of replies filled in by Society staff on behalf of pea brained solicitors to this 'consultation'.I'm sure you can defeat their ends though !

Anonymous said...

downloaded the consultation and busy reading it

snp are obviously bent on protecting bent lawyers by the looks of it but why?

Anonymous said...

I spent the better part of a day trying to get the slcc to say they would look at my complaint which the Law Society has done nothing about for 5 years and then I am told they cant look at it anyway because it happened before they started work!

Anonymous said...

I figure peter the only way to get to the bottom of things is to file a bk for both my personal and business and haul these people into federal court and find out what my father's will said and to get to the bottom of my mothers. i have a feeling they have been using my business or a LLC to launder money and to keep control over my estate. these people are even the rightful inheritor and they are crooks. so I will file petitions and show how they have violated my rights to the estate and what is mine. I also want these people who professionally stalk me gone. it has gotten old....carrie

Anonymous said...

oh and they vilated my right by thecivil code and proceedure act that makes it impossible for someone to attach themselves to welfare or social security but the judge knew this and looked the other way.... can you believe the system? I will notify the federal courts of what my mothers will said and what happened of how they surrounded me and then entrapped me. the federal courts will have juridiction over the matter now...carrie. I beleive in the men at the fbi but they can fight the battle for me.