Lord Hamilton - ‘Scots too ignorant to know what a McKenzie Friend is’ as Holyrood petition & consumer groups criticised by top judge

Scotland’s Lord President Lord Hamilton. The embarrassingly long one year debate on how to formally introduce McKenzie Friends (non-lawyer courtroom assistants) to Scotland’s courts took another turn today as it emerged, LORD HAMILTON, Scotland’s top judge has told the Scottish Parliament he does not believe in using the term “McKenzie Friend” in a Scottish court, alleging that unrepresented Scots court users are too ignorant of ‘legal language’ and the courts system they would have no idea what a McKenzie Friend actually is.

Lord Hamilton’s letter to Holyrood’s Petitions Committee (pdf), dated 22 April 2010, one day after the Committee had asked the Lord President for responses to points raised in last Tuesday’s Petitions Committee hearing, rounded on everyone in the McKenzie Friend debate, and went onto heavily criticise consumer organisations, law reform campaigners and even the petitioner, Mr Stewart MacKenzie for raising points of doubt over the Lord President’s somewhat overly protective plans announced in February, to introduce an Act of Sederunt to formally allow McKenzie Friends to operate in the Scottish courts.

Lord Hamilton is thought to have been angry his ‘evidence’ in written form to the Scottish parliament has been widely criticised & pulled apart for misrepresenting many aspects of the McKenzie Friends debate, which has led to criticisms of the Lord President during last week’s hearing of the Petitions Committee for being overly protective of the courts system. You can watch video coverage of last week’s Petitions Committee hearing on McKenzie Friends HERE and earlier coverage of the McKenzie Friend issue at InjusticeTV

Lord Hamilton – Scots wont know what a McKenzie Friend is. Lord Hamilton in a terse response to Holyrood’s Petitions Committee said : “Both Which and the petitioner have concerns about non-use of the expression “McKenzie Friend”. With due respect, it is the substance of the proposals which is important rather than the name used and the real question is whether they deliver the right result. It is my view that a colloquial expression such as “McKenzie Friend” is not appropriate for the Rules of Court. It is an example of the sort of “legal language” (as so described by Consumer Focus Scotland), inaccessible to the wider public, which the courts are often criticized for using. It has to be borne in mind that most unrepresented litigants are coming to the court system without previous experience of it: it is in my view to be doubted that they would know what a “McKenzie Friend” is; but they might well be able to guess what a “lay assistant” might be and be stimulated to make further enquiries.”

The increasingly bitter debate, marking the Scottish legal system’s miserable attempt to bring McKenzie Friends to Scotland’s courts compares negatively to the swift court judgement in the 1970 McKenzie v McKenzie court case in England, which established the right to use a McKenzie Friend court helper in English courts, a facility now used by unrepresented party litigants in many international jurisdictions.

What took an English court one judgement forty years ago to achieve is taking Scotland’s combined legal & political figures more than a year with no end in sight. The year long peculiarly Scottish version of introducing McKenzie Friends, has so far seen the involvement of no less than two Scottish Government Cabinet Ministers, Justice Secretary Kenny MacAskill and the Community Safety Minister Fergus Ewing, several meetings of the Scottish Parliament’s Petitions Committee dating back to April 2009, a November 2009 ruling in the Court of Session by judge Lord Woolman who allowed Scotland's first Civil Law McKenzie Friend, the involvement of Scotland’s two top judges, the Lord Justice Clerk Lord Gill - who supports the introduction of McKenzie Friends via his Civil Courts Review and the Lord President of the Courts Lord Hamilton who has claimed at various stages of the debate McKenzie Friend style ‘lay assistance’ has always existed in Scotland despite no record of it being able to be produced by the Scottish Courts Service, has left Scots in general, and many unrepresented party litigants no further forward in seeing a clear set of rules on how McKenzie Friends can be used in the Scottish Courts.

Law Society of Scotland oppose McKenzie Friends on grounds of lost business for solicitors. Also of note to the debate on McKenzie Friends, is the Law Society of Scotland's opposition to the entire concept of unrepresented party litigants having the facility of non-lawyer courtroom assistance. The Law Society and the Faculty of Advocates are apparently more worried McKenzie Friends & other access to justice reforms from Lord Gilll’s Civil Courts Review will impact on business for their members while losing the legal profession their long held control over who among us actually gets into court.

Lord Hamilton – relevant to know something about the McKenzie Friend. Addressing the issue of the ‘certificate’ which Lord Hamilton wants any potential McKenzie Friend to sign prior to their appearance in Court, a move criticised by consumer groups and also addressed by the HMCS (Her Majesty’s Court Service, England & Wales) as being informal rather than compulsory, the Lord President told the Scottish Parliament in his letter : “The purpose of asking for such information is simply to provide the judge with information which may be of assistance in considering the application, and in considering any application which might subsequently be made for the permission to be revoked. It is not envisaged that applications would often be opposed, or that applications would often be made for the permission to be revoked. In the event that such a question were to arise, however, it would be relevant to know something about the McKenzie Friend.”

Lord Hamilton continued : “The fact that someone is related to the applicant would be a factor favouring allowing him to act as a McKenzie Friend, as would the fact that he was a neighbour or a friend. But the absence of any relationship would not of course mean that the application would be refused. The fact that someone had experience which was relevant to his or her providing assistance in court (e.g. as a lawyer, a trade union official or a CAB worker) would also be taken into account, but would not be essential.”

“The provision of such information would also assist the court in protecting vulnerable members of the public from the possibility of lay people who do not have relevant experience but who enjoy participating in court proceedings holding themselves out as providers of legal services.”

Lord Hamilton went on to inform the Parliament the latest version of the guidance on McKenzie Friends for England & Wales advises that the proposed McKenzie Friend should furnish the Court with a short CV or other statement setting out relevant experience. He claimed the Scottish proposals seek only to achieve a similar result in a slightly different way, although as documents from the English court authorities confirm the CV aspect of the guidance is ‘not as compulsory’ as what is intended for implementation in Scotland.

The Lord President conceded some amendments to how the McKenzie Friend issue is handled in Scottish courts may be necessary. He commented : “In light of what is said by Consumer Focus Scotland, I can see that further steps may be appropriate to ensure that judges are approaching applications for McKenzie Friends in the right way. Ultimately, these may be matters which need to be resolved by decided cases and the establishment of a coherent body of law. In any event, I can assure the Committee that I would intend to keep the matter under review with a view to making any adjustments of the rules, or issuing any guidance, which seems necessary.”

Lord Hamilton indicated in his letter to the Petitions Committee, he could still deal with the matter by way of introducing McKenzie Friends to Scottish courts via his proposed Act of Sederunt, to be discussed at the Court of Session Rules Council meeting on May 10 2009, although noting Consumer Focus Scotland had suggested it would be preferable to proceed using primary legislation to set out the general principles surrounding the use of a McKenzie Friend and then to let the Rules of Court complete the detail. He asked the Petitions Committee if he should defer any further consideration of the matter on his part until progress became clear on the issue.

In a somewhat ambiguous conclusion, Lord Hamilton appeared to give preference to the idea of using the legislative process as indicated by a recent announcement from the Scottish Government of an amendment to Stage two of the Legal Services Bill, for the introduction of McKenzie Friends to Scottish courts.

Lord Hamilton – legislation may be needed on McKenzie Friends. Lord Hamilton concluded : “The evidence from Consumer Focus Scotland appears to suggest that it would be preferable to proceed in some respects by way of guidance rather than court rules. It notes that this is the situation in England and Wales. This is not entirely correct: in England and Wales, the guidance is descriptive of a long line of decided cases on the subject. In Scotland, no such long line of decided cases exists. In order to ensure that there is an absolutely sure foundation for McKenzie Friends in Scotland, it is in my view preferable to render those principles into legislative form.”

So there we have it, the Scottish Judiciary, the Scottish legal establishment, the Scottish Courts, the Scottish Government and the Scottish Parliament couldn’t manage in over a year what one London court managed in one judgement in a divorce action over forty years ago in 1970. If there is any indication our Scottish legal system needs much more than reforming .. probably a whole reboot, then this must be one of those perfect examples to show how far the rot goes, and what must be done to repair it.

McKenzie Friends - We Scots are allegedly too ignorant to know what they are, but we are not necessarily too ignorant to be forced to stump up tens of thousands of pounds to lawyers, advocates & legal teams in the Court of Session for stringing out even the most simplest of cases to years or even decades long appearances with no clear result for clients, other than huge fees for the legal profession. An unfair system of access to justice, if ever there was one. Shame on those who preserve it. They have no standards, no decency.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

McKenzie Friend Petition hears Lord President is ‘too protective’ of courts as Scots party litigants face more delays on court assistance reforms

Lord Hamilton dubbed ‘too protective’ of Scottish courts. MCKENZIE FRIENDS FOR SCOTLAND moved a little forward on the road to progress at the Scottish Parliament’s Petitions Committee earlier this week as independent MSP Margo MacDonald expressed the views of many consumer organisations & campaigners that Lord Hamilton’s plans as announced earlier in February to impose strict conditions on the appearance of McKenzie Friends (courtroom helpers who assist unrepresented party litigants by taking notes, suggestion questions to be asked, and quietly advising on court procedures, points of law) were “too protective”, ignoring the decades of English legal experience in McKenzie Friends appearing in courts south of the border.

Margo MacDonald – Lord President is being too protective and ignoring English experience on McKenzie Friends (click to view video) :

Margo MacDonald MSP. Margo MacDonald, speaking in support of Petition 1247, which aims to bring McKenzie Friends to Scotland, said : “I should put on record I have sympathy with the Lord President of the Council’s desire to try and ensure that the Scottish Courts system is as professional and as equitable as possible but I think he perhaps is too protective and he is ignoring the evidence of thirty years practice of McKenzie Friends in England & Wales McKenzie Friends in the court and I think the case is proved although its not within our own jurisdiction I don't think we would behave much differently in the situation which is what I imagine the Lord President is concerned about.”

Also, the question of a McKenzie Friend being an “absolute right” of any unrepresented court users came up for debate once more. Margo MacDonald said : “I think there should be a strong presumption of a McKenzie Friend and that should be enshrined in primary legislation. I think though that there should not be an absolute right to this and that a judge or sheriff should retain discretion to determine whether or not the normal conduct of the court is going to be hindered of harmed in any way it should be enhanced by having a McKenzie Friend there.”

Lord Woolman granted Scotland’s first Civil Law McKenzie Friend. The case that broke the forty year mould on McKenzie Friends in Scotland, Martin Wilson v North Lanarkshire Council & Others saw Lord Woolman grant Scotland’s first Civil Law McKenzie Friend in the Court of Session in mid November 2009, albeit forcing the McKenzie Friend to sit behind the party litigant, Mr Wilson in one of Scotland’s longest running civil damages action cases. You can read more about this in an earlier article, here : First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice

Bill Butler MSP (Labour). Petitions Committee member Bill Butler MSP commented : “We should write to the Lord President of the Court of Session asking for a response to the concerns raised in the submission by Which? magazine’ specifically paragraphs 4-7 the petitioner particularly points to point 1.1 & 1.2 and Consumer Focus Scotland I also think we should ask the Lord President will each of these concerns be addressed and in the forthcoming Act of Sederunt that he intends to bring forward and if not why not.”

However, progress on the issue took a slight left turn as expected, Nigel Don, attempted to talk down the already announced plans of the Lord President, Lord Hamilton to force hopeful McKenzie Friends to sign absolute certificates with strict conditions before they are even allowed to appear in a Scottish court to assist & take notes for their party litigant

Nigel Don MSP (SNP): Petitions Committee member & Parliamentary liaison to Justice Secretary Kenny MacAskill. Nigel Don, speaking on the thorny point of Lord Hamilton’s plans to impose a certificate on those appearing as a McKenzie Friend in a Scottish Court, announced in February which I reported on earlier HERE, said “I think its fair to say the certificate as I see it is not a certificate it is anything other than as I understand this is an an important place to be and I understand I am in court and there are some responsibilities of receiving information and how I conduct myself equally people seem to be suggesting the experience is a kind of textbook exercise if you have not got enough experience you cannot be there.”

In England & Wales, and most other jurisdictions where McKenzie Friends have been used in courts around the world for up to forty years, there are apparently no such requirements of the forcible signing of certificates for those wishing to appear as a McKenzie Friend, who is simply there to assist an unrepresented party litigant by taking notes, suggesting questions and giving quiet advice on court procedures or acts of law.

Sources say the Act of Sederunt, which Lord Hamilton announced in February with his intention to bring forward for May 2010 is mostly finished, and remains of the view there be strict requirements of a certificate to be signed before a party litigant can use the services of a McKenzie Friend in Scotland’s courts. Apparently drafts of the Act of Sederunt floating around show there to be no flexibility on this issue of the certificate, despite Mr Don’s less than convincing argument the certificate issue will not be an absolute …

Mr Don also appeared to support the Lord President’s apparent hang up on whether McKenzie Friends could be paid for their time in a Scottish Court. Mr Don said : “I do know that the Lord President is suggesting the lay assistant should not be paid in any way at all and it seems to me if that is a line he wants to maintain people will find a way around it and I want to make sure we bring that to his attention as well.”

Margo MacDonald interceded, commenting that it has been suggested by Consumer Focus that a simple question asked by the judge or sheriff are you being paid for this if the person ‘tells a porky’ he can be put away for perjury.

Oddly enough, Consumer Focus Scotland are against McKenzie Friends receiving payment for their services to party litigants, this despite the fact McKenzie Friends in England & Wales, and many other international jurisdictions have for years been able to charge for their services without much dispute from courts.

However, today, some who have acted as McKenzie Friends in England & Wales questioned why Lord Hamilton has such a hang up over the issue of whether a McKenzie Friend can receive remuneration for their services.

While the Scottish Parliament & consumer groups argue over whether a McKenzie Friend can or cannot receive payment for their services, apparently on the ludicrous possibility of penalty of jail time, there is now case law in the English courts family division to support the right of a McKenzie Friend to charge for their services, where Mr Justice Munby, ruling over a case of costs arising from contentious contact and residence litigation between unmarried parents [N (A Child) [2009] EWHC 2096 (Fam)] concluded the child’s father's McKenzie Friend "is entitled to charge, if he can find clients willing to pay his fees, at an hourly rate which can hardly be said to be extravagant when contrasted with the fees one frequently finds being charged to privately paying clients in family cases".

One English solicitor of 30 years experience who in his spare time has appeared as a McKenzie Friend for an unrepresented party litigant said : “Lord Hamilton’s apparent desire to send any McKenzie Friend who asks for or receives money for their services in Scotland to a firing squad at dawn seems itself to be an obstruction to the many unrepresented party litigants even being able to obtain a McKenzie Friend in the first place. I think the Lord President’s hang-up over a Scottish McKenzie Friend receiving a fee for their services is more to do with lobbying from the legal profession rather than an interest in how well the conduct of the court proceeds.”

He continued : “I think it comes down to the fact that a McKenzie Friend might end up charging £30 an hour for his services, while solicitors and full legal teams can cost anything up to £5,000 an hour in Scotland’s Court of Session. Its not rocket science to work out the Scots legal profession are worried they are going to lose a lot of revenue if clients chose the unrepresented party litigant approach to court cases and employ a much cheaper yet effective McKenzie Friend than hiring an expensive legal team which might cost a lot but not win the case anyway. As I see things, it is this factor which is the real opposition to a McKenzie Friend being paid or not, not the actual smooth running of the court.”

Lord Woolman granted Scotland’s first Civil Law McKenzie Friend. The case that broke the forty year mould on McKenzie Friends in Scotland, Martin Wilson v North Lanarkshire Council & Others saw Lord Woolman grant Scotland’s first Civil Law McKenzie Friend in the Court of Session in mid November 2009, albeit forcing the McKenzie Friend to sit behind the party litigant, Mr Wilson in one of Scotland’s longest running civil damages action cases. You can read more about this in an earlier article, here : First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice

Clearly as I have thought all along, the issue of bringing McKenzie Friends to Scotland’s courts comes down to competition, and the fears of the legal profession they will lose business. Well, as far as I’m concerned, that's a good thing. If expensive legal teams are so expensive and so poor quality as we are forced to expect on a daily basis in the Scottish courts that they will often drag a case out for years, take it to all the courts in the land and achieve no success while presenting the litigant with bills for tens of thousands of pounds, then the legal profession deserve to lose the business.

The prospect of lost business for lawyers should not factor into the Lord President’s decisions on when and under what format to allow McKenzie Friends in Scotland’s courts, especially since the legal profession have been so effective at excluding McKenzie Friends from Scotland for the past forty years, simply, due to … greed.

Lord Gill supported the introduction of McKenzie Friends in his Civil Courts Review. Scotland’s Lord Justice Clerk, Lord Gill also supported the introduction of McKenzie Friends to Scotland’s Civil courts, reported on at length in his Civil Courts Review, although mentioned none of the strict conditions which the Lord President, Lord Hamilton now wishes to impose on the Scottish version of a McKenzie Friend. You can read more about Lord Gill’s Civil Courts Review here : Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

The Petitions Committee decision of this week, chose the clear and thankfully sensible suggestion from Bill Butler MSP to write to the Lord President along the following lines :

• What is your response to each of the concerns raised in the submission by Which? magazine, specifically in paragraphs 4 to 7 (PE1247/AA), the petitioner (PE1247/EE), particularly points 1.1 and 1.2 and Consumer Focus Scotland (PE1247/FF)?
  
• Will each of these concerns be addressed in the forthcoming Act of Sederunt you intend to bring forward? If not, why not?

However, as has been noticed by many observers, the Lord President has already refused to answer the Petitions Committee’s earlier questions, put to the Lord President on 9 February 2010, where the Committee asked :

• What is your answer to the concerns of the petitioner (PE1247/V) regarding the lack of awareness of the Court of Session about the existence of such a facility? How will this be addressed and when?
  
• Can you confirm that there is a presumption in favour of a “McKenzie friend” to assist a party litigant, unless deemed unsuitable by the Court?

Now we must await to see whether the Lord President will this time, answer the Parliament substantively, or simply respond with plans which end up leaving more questions than answers, while also leaving the rights & entitlements of Scottish court users at a major disadvantage compared with our English colleagues …

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

Bitter feud between regulators as Law Society of Scotland take Scottish Legal Complaints Commission to Court of Session over complaints role

Law Society of Scotland in legal dispute with Scottish Legal Complaints Commission. As revealed earlier this week in reports of Ministerial interference with the Scottish Legal Complaints Commission, apparently ordered by the Law Society of Scotland to secure a decrease in the annual complaints levy solicitors are forced to pay for complaints regulation, the Law Society of Scotland have taken legal action in at least four instances against the Scottish Legal Complaints Commission.

Community Safety Minister Fergus Ewing would rather the SLCC’s £1.5 million surplus be paid to lawyers instead of being used to stem public services cuts in the community. The Scottish Legal Complaints Commission have released limited details of the cases, by way of comments responding to the Community Safety Minister Fergus Ewing’s intervention directly on behalf of the Law Society in the budget dispute, which saw Mr Ewing go on to threaten the independence of the SLCC should it not comply with the Law Society’s wishes to lower the complaints levy.

The battle over the complaints levy began when the SLCC revealed it had a huge £1.5 million cash surplus, which consumer groups and politicians are now calling to be paid back to the public purse to cover the commission’s £2 million start up costs. Meanwhile the Community Safety Minister Fergus Ewing is, curiously in favour of seeing the SLCC’s £1.5 million go back into the pockets of his colleagues in the legal profession, rather than help keep afloat public & community services across Scotland.

However, the Law Society are keen to counter any moves to pay back the money to taxpayers, and have opted for a combination of legal action, political intimidation and a public campaign by some of the Scottish legal profession’s more widely known, wider-mouth personalities against the very existence of the SLCC, hoping to force the Commission to refund lawyers the £1.5 million instead repaying the public purse to fund services such as health, education, justice, or community services.

Jane Irvine revealed the Scottish Legal Complaints Commission faces costly legal action from the Law Society. From the SLCC’s media release of earlier this week. Jane Irvine, the SLCC’s Chair said : “Every new complaints body faces an early tranche of appeals over the first 3-5 years of its operation as powers are tested, and currently we are dealing with four Court of Session appeals, lodged by the Law Society of Scotland, under which the Law Society infers that they do not wish to investigate these particular conduct issues.

Jane Irvine continued : “We must have sufficient reserves to defend legal actions and to be in a position to balance the strength of the legal profession as it raises appeals against the lesser strength of consumers, who will raise fewer appeals. We already know the SLCC is facing significant legal costs and, depending on the outcome of these appeals, we may need to change how the SLCC operates.

The Law Society itself will not release comment on their legal action against the Scottish Legal Complaints Commission.

A listing of the cases and their hearings so far, appear from the rolls of the Court of Session as follows :

Law Society of Scotland v Scottish Legal Complaints Commission :

Wednesday 24 June 2009 (Single Bills Extra Division) 3 Law Society of Scotland (represented by Balfour & Manson LLP) for leave against a decision of the SLCC.

Friday 13 November 2009 (Single Bills Extra Division) 19 Debbie Williams (Macbeth Currie & Co) for leave to appeal SLCC

Friday 11 December 2009 (Single Bills Extra Division) 3 Law Society of Scotland (represented by Balfour & Manson LLP) for leave v SLCC

Friday 8 January 2010 (Inner House Rolls Second Extra Division) 1 XA129/09 James McCann (represented by Balfour & Manson LLP) v Scottish Legal Complaints Commission (represented by Shepherd & Wedderburn)

Tuesday 26 January 2010 (Single Bills Extra Division) 4 Debbie Williams (Macbeth Currie & Co) for leave to appeal SLCC

Friday 12 February 2010 (Single Bills Extra Division) 1 Law Society of Scotland (represented by Simpson & Marwick) for Leave to Appeal decision of the SLCC

Tuesday 2 March 2010 (Single Bills Extra Division) 4 Law Society of Scotland (represented by Balfour & Manson LLP) for leave to appeal decision of SLCC.

Wednesday 24 March 2010 (Single Bills Extra Division) 2 Law Society of Scotland (represented by Balfour & Manson LLP) against a decision of the SLCC (represented by Shepherd & Wedderburn).

‘Ministerial Interference’ as Fergus Ewing demands SLCC’s £1.5m reserves be handed to lawyers after Law Society lobbied Scottish Government

Community Safety Minister Fergus Ewing tells SLCC : Give lawyers a £1.5m refund or else we take away your independence. FERGUS EWING the Scottish Government's Minister for Community Safety has demanded the independent Scottish Legal Complaints Commission use its massive £1.5m surplus to lower the annual complaints levy which solicitors have to pay each year to cover the Commission’s costs of investigating complaints made by clients against their lawyers. The move has surprised many, as under the terms of the Legal Profession and Legal Aid (Scotland) Act 2007, the SLCC is independent of Government and the legal profession.

Law Society of Scotland lobbied Scottish Government to reduce complaint levy which funds investigations against ‘crooked lawyers’. The unprecedented move by Mr Ewing, comes after the Scottish Government was lobbied directly by the Law Society of Scotland to intervene in the budget levy dispute with the SLCC, forcing a quick, quiet reduction of the complaints levy, after law campaigners and MSPs began to question why the Scottish Government had not asked the SLCC to repay its massive £2m formation costs to the public purse.

Mr Ewing’s direct intervention on behalf of the legal profession, coming just a few weeks after I reported Mr Ewing had announced plans for Ministerial appointments to the Law Society of Scotland’s Council had been withdrawn after some more lobbying from the Law Society, is being widely seen as nothing short of Ministerial interference in an ‘independent’ body, particularly after Mr Ewing apparently issued a threat to review Ministerial powers over the Scottish Legal Complaints Commission if it does not comply with the Law Society of Scotland’s desire to see the complaints levy reduced.

Community Safety Fergus Ewing writes to Scottish Legal Complaints Commission, demands reduction of complaints levy for lawyers. The letter from Mr Ewing to the SLCC, recently released, states : “I note that you have used some of your reserves to offset any increase in the general levy and that is commendable, but I am strongly of the view that this does not go far enough. I understand that this financial year you have generated income of around £2.3m and that your predicted costs of £2.9m are now forecast to be £2.6m. The shortfall between income and expenditure will be met by your contingency fund should that remain untouched and in effect your budget will balance this year. However the surplus finds generated during your first 9 months of operation recorded as £1.5m are likely to remain untouched.”

Mr Ewing continued : “Whilst I recognise that during your initial year of operation the workload and consequently expenditure was difficult to predict, having built up an significant reserve fund in this financial year, it is essential that the Commission takes full account of this reserve in determining the amount of annual general levy and the complaints levy that is reasonably sufficient to meet its expenditure for the next financial year. When the Commission has existing reserves, it must ensure that, taking one financial year with another, the amount of the proposed general levy and complaints levy is reasonably sufficient to meet its expenditure, in particular, any estimated shortfall including for contingencies.”

Community Safety Minister Fergus Ewing threatens a review of Ministerial powers over the SLCC if it refuses to lower the complaints levy. Fergus Ewing continued in his letter to the SLCC’s Chair, Jane Irvine : “I do not think it is sufficient to use these reserves to merely off-set an assumed increase in the proposed amount of the annual general levy for next year. I therefore invite the Commission to give early and serious consideration to reducing the proposed amount of the annual general levy and the complaints levy to ensure that these do not, taking one financial year with another, exceed what is reasonably sufficient to meet its expenditure.“I appreciate that this is important for the SLCC to manage their financial risks and hold some contingency funding and I know that officials here would be happy to discuss how this could be achieved in ways which do no to rely on large reserves. I appreciate also that, as the legislation stands, the levy is a matter for the SLCC to determine, and that Ministers have no powers to order the SLCC to take any particular action in respect of the levy. It is for the SLCC itself to ensure that the level of charge is justifiable, in the light of the demands on it. I trust that you will exercise that discretion appropriately, having regard to the views expressed by consultees.”

Fergus Ewing ended his letter with an apparent threat : “I would wish to give fair notice that Ministers will review the situation following the setting of this year’s levies to see whether any change in the respective powers of Ministers and the Commission is desirable.”

A legal insider indicated the Law Society had decided to push the matter after they had become concerned calls for the SLCC to repay its millions to taxpayers might gain ground, and scupper the chance of solicitors getting a refund on the complaints levy.

He said : "Officials at the Law Society were furious some were suggesting the SLCC repay their £1.8 million start up costs met by the taxpayer and saw a real possibility this idea may gain ground particularly since the Commission is sitting on a £1.5 million cash reserve in a recession where the daily talk is of more cuts to public services.

It has also emerged there are at least four cases in the Court of Session where the Law Society of Scotland are taking legal action against the Scottish Legal Complaints Commission over the Society’s remaining duties to regulate conduct complaints. A legal insider today alleged the Law Society’s lobbying of the Scottish Government under the circumstances of it pursuing the SLCC in the courts “is entirely inappropriate”.

He said : “The Law Society calling in the Scottish Government to intimidate the Scottish Legal Complaints Commission over the complaints levy may well be a tactic connected with the Law Society’s court actions against the Commission, or an intent to disturb the SLCC’s regulatory function investigating complaints against the legal profession, a function which we all are very well aware the Law Society wants back within its grip.”

He continued : “In the light of this incident, there should be a full investigation of Mr Ewing’s conduct and the disproportionate lobbying access the Law Society of Scotland and legal profession appear to have with the Scottish Government. It cannot be that a Minister gets involved to such a degree in what are decisions the law says should be taken independently and without influence from Government”

SLCC Chair, Jane Irvine. Jane Irvine, Chair of the Scottish Legal Complaints Commission gave reaction to Communities Minister Fergus Ewing’s intervention on behalf of the Law Society. Commenting on the SLCC budget consultation responses, Jane Irvine said: “In February, we received responses from the Faculty of Advocates, the Law Society of Scotland and comments from the Scottish Government Minister for Community Safety, Fergus Ewing.The Minister’s letter repeated some of the points raised by the Law Society of Scotland with regard to the SLCC reducing its reserves in order to reduce the Solicitors’ Levy. “The SLCC Board has, however, raised concerns at the Minister’s inference to the level of control the Scottish Government may wish to exert over the operation of the SLCC, should our Board decide against reducing the Solicitors’ Levy.”

The Scottish Legal Complaints Commission are facing four cases ongoing in the Court of Session where the Law Society refuse to investigate certain conduct issues. Jane Irvine continued: “The SLCC has endeavoured to clarify for the Minister the rationale behind our reserves policy, explaining that reserves are for unforeseen events and reflect what the SLCC Board considers to be the risks facing the Commission. Every new complaints body faces an early tranche of appeals over the first 3-5 years of its operation as powers are tested, and currently we are dealing with four Court of Session appeals, lodged by the Law Society of Scotland, under which the Law Society infers that they do not wish to investigate these particular conduct issues. We must have sufficient reserves to defend legal actions and to be in a position to balance the strength of the legal profession as it raises appeals against the lesser strength of consumers, who will raise fewer appeals. It is simply not feasible for the SLCC to be acting in a defensive manner when making decisions.“

Jane Irvine continued: “We already know the SLCC is facing significant legal costs and, depending on the outcome of these appeals, we may need to change how the SLCC operates. “This could mean a review of our processes and procedures resulting in the need to substantially increase the size of our Gateway Team which is currently served by ten members of staff.“

The media release from the SLCC concluded by stating : “The SLCC Board will meet later this month to discuss the Minister’s comments regarding the independence of the SLCC from the Scottish Government and the legal profession, the level of reserves held, the implications of reducing the solicitors’ levy, our ability to meet the costs of appeals and our ability to fulfil our obligations to consumers should the Court decision result in changes to how we operate.”

You can read the Response from the Law Society of Scotland (PDF 542 KB) and the Response from the Faculty of Advocates (PDF 72.3 KB) to the SLCC’s Budget for 2010-2011 : SLCC Budget levy consultations along with the letter of Ministerial interference from The Scottish Government Minister for Community Safety, Fergus Ewing MSP, (PDF 506KB)

James Kelly MSP, (Labour) Glasgow Rutherglen. James Kelly MSP, a member of the Scottish Parliament’s Justice Committee queried whether the SLCC could justify its huge £1.5m budget surplus under current financial conditions. He said : "At a time when budgets are under pressure it is correct that questions are being asked as to why the SLCC need to retain a surplus of £1.5m. If the SLCC are unable to justify this surplus then consideration needs to be given to the steps required to bring the monies back within the remit of the general budget."

Asked for reaction on Communities Minister Mr Ewing’s intervention on behalf of the Law Society of Scotland, a Scottish Government spokeswoman said: "The Minister is entitled to make his views known to the Scottish Legal Complaints Commission (SLCC), and any future changes which might be considered to ensure the SLCC operates efficiently and does not impose unnecessary burdens on the legal profession would ultimately be for Parliament to consider."

An official from a Consumer organisation condemned Mr Ewing’s intrvention on behalf of the Law Society of Scotland while the Scottish Government had refused to help members of the public who had lodged complaints against ‘crooked lawyers’.

She said : “What we now have here is a Scottish Government Minister saying he prefers that lawyers get a multi million pound refund rather than maintain dwindling public services. If Mr Ewing wishes to put lawyers before the Scottish public he should go back to being a lawyer instead of remaining in Government.”

Clearly the conduct of the Communities Minister Mr Ewing amounts to what many will view as Ministerial lobbying on behalf of the legal profession, coupled with a veiled threat of action if the aims of the lobbying (to reduce the complaints levy for solicitors) are not met.

In view of what has taken place, and the information with regard to the court cases involving the SLCC & Law Society of Scotland, which taken together, directly impacts on the ability of the SLCC, an independent regulator which was created by legislation designed to protect consumers from poor legal services, I support calls for a full investigation into the amount of lobbying power & access to politicians the Law Society of Scotland seem to enjoy – lobbying power which is now clearly not in the public interest for the Law Society, or legal profession, to retain …

Lord President ‘should be brought to account’ on McKenzie Friends as Scottish Parliament asked to support equality of access to justice

Scotland’s Lord President, Lord Hamilton. MCKENZIE FRIENDS for Scotland are back on the agenda next Tuesday 20 April as the Scottish Parliament’s Petitions Committee considers the latest submissions in what has become an increasingly bitter debate on the rights of party litigants, with Scotland’s top judge, Lord Hamilton appearing entrenched in his plans to heavily restrict the use & application of McKenzie Friends in Scotland’s civil courts, while consumer organisations & law reform campaigners lobby for a fair & equitable application of McKenzie Friends in Scotland comparable to their use for over forty years in the English courts system.

The latest response on Petition 1247 McKenzie Friends for Scotland, from Mr Stewart MacKenzie, the petitioner himself, accuses Lord Hamilton of misleading the Petitions Committee on several issues, including that of whether McKenzie Friends have or have not (definitely have not) existed in Scottish Courts prior to Holyrood considering the question of formally introducing McKenzie Friends to Scotland.

Stewart MacKenzie told the Parliament’s Petitions Committee : “Lord Hamilton states that he will “bring into force” McKenzie Friends in June 2010, following the implementation of an Act of Sederunt in May 2010. Lord Hamilton wrote to the Petitions Committee on 3rd November 2009 and stated that there was no need for the “introduction” of McKenzie Friends in Scotland, as it already existed and then added “contrary to the apparent understanding of the Petitioner”.”

“Why does Lord Hamilton therefore now say that he will bring McKenzie Friends “into force” in June 2010, when he has already informed the Petitions Committee in November in 2009 that it already existed and did not require to be introduced? Had the Petitions Committee accepted the content of Lord Hamilton’s 3rd November 2009 letter, the Petitions Committee could have closed this Petition and I consider therefore that it was plainly misleading of Lord Hamilton to say at that time to the Petitions Committee that there was no need for the introduction of McKenzie Friends in Scotland and consequently I would wish the Petitions Committee to raise this matter with Lord Hamilton.”

The petitioner’s letter also goes on to heavily criticise Lord Hamilton for planning to force the signing of certificates from those appearing in Scottish Courts as McKenzie Friends, a requirement which apparently does not in any other jurisdiction where McKenzie Friends are used. Lord Hamilton also intends an even stricter requirement that McKenzie Friends have an as yet undefined “relevant experience”, raising a further condition upon Scottish McKenzie Friends which does not exist elsewhere.

Mr McKenzie commented : “Firstly, McKenzie Friends in all other jurisdictions are for example, either a friend, a relative, an associate etc and none of these have, or are required to have, what Lord Hamilton now requires, being “relevant experience”. It is beyond question that he [Lord Hamilton] must explain himself in this regard and explain that if the McKenzie Friend applicant does not have the required “relevant experience”, does this mean that they will not be allowed to be a McKenzie Friend in Court?”

Mr MacKenzie went onto say the Committee should make enquiries of Lord Hamilton regarding the independent evidence or research base to justify his requirements of ‘relevant experience’ before an individual could be approved as a McKenzie Friend in a Scottish court.

Defining “Relevant Experience, Mr MacKenzie told the Parliament : “Relevant means “connected to the subject”, however a nurse, an office worker, a plumber or the wife/husband of the litigant,will not have “relevant” experience connected to litigation, the Courts or Law but they do have the ability to carry out the very simple and defined role of a McKenzie Friend by “passing papers, whispering to the litigant from prepared notes, taking notes, help with case papers and importantly, providing moral support”. Experience means “knowledge or skills which comes from practice”, however the concept and usage of a McKenzie Friend is not necessarily by using someone who has knowledge or skills from practising as a McKenzie Friend or has knowledge and skills in law or court procedures.”

Mr MacKenzie continued : “The definition of the word “friend” is a helper, a supporter and the concept and meaning of a “McKenzie Friend” is simply that and the Petitions Committee should make this clear to Lord Hamilton and convey their concerns over this matter.”

“I would therefore urge the Petitions Committee to conclude that Scotland must follow the criteria required for McKenzie Friends, which is adopted throughout the rest of the world and which does not require “relevant experience” or the signing of a certificate, otherwise Scottish consumers will be at a distinct disadvantage and will not enjoy the same rights as those in England and Wales.”

Consumer organisations Which? and Consumer Focus Scotland have both criticised Lord Hamilton’s stringent plans for McKenzie Friends, in earlier reports HERE & HERE

Mr MacKenzie also tackled the shifting descriptions used by Lord Hamilton on the issue, where the Lord President has often preferred to refer to the McKenzie Friend as a “Lay Assistant” instead of the universally accepted “McKenzie Friend”. Mr MacKenzie and those involved in the debate have raised questions over the “Lay Assistant” term, which appears to have a much reduced status in law than an actual McKenzie Friend.

Mr MacKenzie told the Parliament : “The process and procedure which Lord Hamilton now details in his 16th February 2010 letter, for bringing into force McKenzie Friends in June, refers to the words “Lay Assistant” and not “McKenzie Friend”. “McKenzie Friends” are so-called in Court jurisdictions from England & Wales to Northern Ireland, Canada, Australia and New Zealand. It is an internationally recognised terminology and I would urge the Petitions Committee to convey the strongest of views to Lord Hamilton that the distinctly Scottish term “McKenzie Friend” must also be used in the Scottish Courts system and not “Lay Assistant”.

“Additionally I would ask the Petitions Committee to bear in mind that litigants present and future, will do their research on “case law” for example, by researching “McKenzie Friends” and not “Lay Assistant”. We also simply cannot have a situation where a truly Scottish word such as McKenzie, as used in “McKenzie Friends”, is not used in Scotland’s own Courts system.”

My earlier report on Lord Hamilton’s plans for the Scottish version of a McKenzie Friend, which the Lord President preferred to call a “Lay Assistant” instead of the universally accepted “McKenzie Friend” can be viewed here : Exclusive : McKenzie Friends for Scotland ‘are go’ as Lord President yields to Holyrood access to justice petition for Scots court users

Forbidding the use of the term “McKenzie Friend” in a Scottish court, simply because some members of the judiciary wish to control the use of ‘courtroom helpers’ by the increasing numbers of legally unrepresented court users who cannot for a variety of reasons afford or obtain the services of a lawyer … well, that is simply not on …

An official from one of Scotland’s consumer organisations spoke today on the increasingly murky debate over McKenzie Friends.

He said : “There appears a market reluctance on the part of the judiciary to allow Scottish consumers the same rights & entitlements enjoyed by court users in England & Wales. The Scottish Parliament must intervene in this issue and safeguard the rights of Scots, ensuring equality of access to justice and the right to a fair hearing for all court users.”

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

SLCC’s Eileen Masterman resigns, questions remain on attempt to mislead Cabinet Finance Chief John Swinney over secret meetings with insurers Marsh

SLCC Chief Executive Eileen Masterman. In an eerie reflection of events two years ago which forced the resignation of former Law Society Chief Douglas Mill, EILEEN MASTERMAN, who was appointed Chief Executive of the Scottish Legal Complaints Commission by Justice Secretary Kenny MacAskill in 2008 on a salary of £1,350 a week, is to resign after only one year of being in the controversial post at the scandal-hit regulator which deals with consumer complaints against Scottish solicitors. Ms Masterman has been absent from her post for six months, as I reported yesterday here : £70K Chief Executive ‘missing for 6 months’ at Scottish Legal Complaints Commission as Justice Secretary dodges questions on scandal-hit law quango

Insiders at the SLCC confirmed late yesterday evening Ms Masterman was leaving, apparently on grounds off “ill health” and that an official announcement would be made soon revealing Rosemary Agnew, the SLCC’s “Head of Investigations” as the new Chief Executive.

Eileen Masterman was caught in anti-client insults scandal at SLCC, reported in the press. During Ms Masterman’s tenure as Chief Executive of the Scottish Legal Complaints Commission, it was revealed through documents obtained under the Freedom of Information Act she had slated consumer organisations & campaigners in bitter exchanges with SLCC board members including Glasgow Divorce lawyer Margaret Scanlan & the well known Law Professor Alan Paterson, from Strathclyde University, expressing resentment at campaign organisations who questioned the integrity of Scotland’s legal profession. I reported on that story in an earlier article, here : Insults fly at Scottish Legal Complaints Commission as Law chiefs launch bitter tirades against campaign groups & law reformers, later picked up by the national media as I reported here : MacAskill must clean up law complaints body as members 'booze culture conduct' reflects lack of discipline & will to investigate crooked lawyers

Cabinet Finance Chief John Swinney revealed he felt Ms Masterman had mislead him over accounts of meetings. However, Eileen Masterman’s resignation leaves questions over increasingly bitter exchanges between the Scottish Legal Complaints Commission & the Scottish Government’s Finance Chief, John Swinney, on a matter which I have previously reported where further documents obtained under Freedom of Information legislation revealed the SLCC had clearly mislead Mr Swinney over secret meetings between its officials including Ms Masterman and officials from Marsh, the Law Society’s Master Policy insurers.

Cabinet Secretary Swinney demanded explanations of SLCC's minutes contradictions. Letters written by Cabinet Secretary John Swinney dated March 2009 to the SLCC's Chief Executive Eileen Masterman brand her explanation 'contradictory' to details in the Commission's own minutes : "In your response on the 12th of December to *** subsequent letter on the 2nd of December in which *** had stated 'clearly you are saying that no date has yet been arranged for the Marsh presentation'. You indicated that a meeting took place with RSA (Royal Sun Alliance) in July 2008 but that no meeting had occurred with Marsh."

Mr Swinney then went on to state : "*** has drawn to my attention the fact that the minutes of the Scottish Legal Complaints Commission dated 11th of March 2008 and 7th July 2007 indicated firstly in March 2008 that 'Jane Irvine confirmed she had arranged an introductory session from Marsh' and the minutes in July said that a meeting had taken place with RSA. I have to say that I feel there is a contradiction between the correspondence you have sent to *** dated 1st and 12th of December and the minutes of the SLCC meetings of March and July."

The SLCC’s Chief Executive, Eileen Masterman, herself a former Law Society of Scotland Committee member, issued the following statement in response to queries over Mr Swinney’s communications : “As you know, the SLCC came into existence on 1 October 2008 and a few weeks later, in early November, I attended a meeting with the SLCC’s Head of Investigations and a representative from Marsh. I considered that it was necessary and entirely appropriate for us, as senior members of the SLCC’s team, to apprise ourselves of the nature and workings of the Master Policy and Guarantee Fund as these come within our area of responsibility. However, the meeting did not relate to the means by which SLCC would ultimately exercise its oversight function.“

SLCC's answers to Cabinet Secretary Swinney were far from clear. Ms Masterman’s responses to Mr Swinney's allegations of contradictions in correspondence between himself, a constituent and the SLCC, to keep secret any meetings with the insurers, fell through after details of the secret meetings emerged in board minutes of meetings of the Commission, leading to further correspondence between the SLCC & Mr Swinney, who went onto brand Ms Masterman’s explanations as "far from clear" after Ms Masterman informed Mr Swinney in letters dated 15 January 2009 "The SLCC has not consulted with Marsh or the Royal Sun Alliance about the operation of the Master Policy" which was contradicted by emails from November 2008 between Ms Masterman & the then Head of Investigations Rosemary Agnew, which read : "We received our tutorial yesterday on the Master Policy from Marsh".

Eileen Masterman then wrote to John Swinney in a letter dated March 2009 claiming "I have not met with Marsh", clearly contradicting the course of events where SLCC officials including Ms Masterman had in fact met Marsh.

The increasingly bitter exchanges on the issue of the SLCC’s involvement with Marsh continue between the SLCC, Mr Swinney and his constituent where legal insiders who have read the documents already available through FOI disclosures agree there appears to be a clear intention to mislead inquiries made by Cabinet Secretary Mr Swinney.

Scottish Legal Complaints Commission report on Master Policy revealed clients had committed suicide over conduct of ‘crooked lawyers’ & Marsh. The disputed ‘secret meetings with Marsh’ were held prior to a survey commissioned by the Scottish Legal Complaints Commission into the Master Policy & Guarantee Fund, which are ‘managed’ by the Law Society to compensate clients of negligent and crooked lawyers, but which in reality never pay out financial compensation for terrible loss inflicted on clients by rogue lawyers. The results of the report, conducted by the University of Manchester’s Professor Frank Stephen, and Dr Angela Melville, revealed that : Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night'

Douglas Mill resigned as Law Society Chief Executive after revelations of secret ‘anti-client’ dealings with insurers Marsh. Ms Masterman’s resignation, while officially over ‘ill health’ almost identically mirrors a similar chain of events after Mr Swinney revealed a set of Mr Mill’s own memos, showing secret communications & meetings between the Law Society of Scotland & its Master Policy insurers, Marsh UK which eventually led to the resignation in January 2008 of the then Law Society Chief Executive Douglas Mill, after video footage of the confrontation between John Swinney & Douglas Mill before the Scottish Parliament’s Justice Committee was posted to You Tube. I reported on Douglas Mill’s own resignation, here : Breaking News : Law Society Chief Executive Douglas Mill who lied to Parliament, pursued 'personal vendetta' against critics - to resign

The memos, written by Mr Mill and his associates at the Law Society depicted a sequence of events where officials including Mr Mill were apparently engaged in operations to target and deny clients any access to legal representation in cases involving the recovery of financial claims against ‘crooked lawyers’. The costs of claims against ‘crooked lawyers’ are met by the Master Policy, operated by Marsh and funded by insurers Royal Sun Alliance PLC.

Cabinet Secretary Swinney was asked for comment on Ms Masterman’s resignation and the discussion between his office & Ms Masterman over the meetings between the Scottish Legal Complaints Commission & Marsh. His spokeswoman said in response : “John Swinney has no comment to make on this matter.”

The Scottish Government & Scottish Legal Complaints Commission were both asked for comment today on Ms Masterman’s resignation. A spokeswoman for the Scottish Government said : “We do not comment on individual staffing cases.”. The Scottish Legal Complaints Commission did not give a comment at the time of publishing.

SLCC statement on CEO Eileen Masterman. In an update to the original article, the Scottish Legal Complaints Commission issued a public release on 19 April 2010 regarding Ms Masterman’s position, stating : “The SLCC has now informed its staff and stakeholders that after a period of illness, Eileen Masterman, Chief Executive Officer of the Scottish Legal Complaints Commission (SLCC) has left the organisation. The Commission wishes her well for the future. Jane Irvine, SLCC Chair, confirmed that Rosemary Agnew, the SLCC Head of Investigations, will continue in her role as Accountable Officer and Acting Chief Executive until further notice. The position of Chief Executive is filled through the Public Appointments process run by the Office of the Commissioner for Public Appointments in Scotland (OCPAS). The recruitment process will commence in due course.”

£70K Chief Executive ‘missing for 6 months’ at Scottish Legal Complaints Commission as Justice Secretary dodges questions on scandal-hit law quango

Justice Secretary Kenny MacAskill. KENNY MACASKILL, Scotland’s Justice Secretary remained as tight lipped as ever in answers to questions raised in the Scottish Parliament over the abysmal performance of the SCOTTISH LEGAL COMPLAINTS COMMISSION, once hoped by many to repair much of the scandal surrounding the Law Society of Scotland’s notoriously corrupt closed shop client complaints process against its member solicitors, which has seen thousands of consumer complaints against Scottish lawyers swept under the carpet each year by the legal profession’s own self regulator.

James Kelly MSP for Glasgow, Rutherglen (Labour) James Kelly MSP, Labour MSP for Glasgow Rutherglen and a member of the Scottish Parliament’s Justice Committee put several questions to the Scottish Government on issues of performance, expenses, budget and costs of the Scottish Legal Complaints Commission, which were answered by Justice Secretary Kenny MacAskill, who appointed the current board & staff to their positions at the SLCC.

£2million of taxpayers money was lavished on the Scottish Legal Complaints Commission. Amid calls for the SCLCC to be made to pay back , the public purse its massive formation costs, from its huge reserves of £1.5 million, the Justice Secretary refused to answer any questions relating to budget, expenses & costs of the Scottish Legal Complaints Commission, and simply stated any such enquiries should be made directly of the SLCC itself. Mr MacAskill in his replies to Mr Kelly appeared unwilling to disclose to Parliament, the millions of pounds of public funds lavished on the expensive, anti-client law complaints quango, which has now drained up to £2million from the public purse.

The Justice Secretary also refused to confirm the extent of the SLCC’s massive surplus funds of £1.5 million, which are now also the subject of criticism from the Law Society of Scotland & the Faculty of Advocates.

SLCC Board members claim staggering amounts of money on expenses while employed in other quango jobs at public expense. I reported on the extent of the costs to the taxpayer of the Scottish Legal Complaints Commission in an earlier article. here : Scottish Legal Complaints Commission refuse to repay £1.7million public funds as board member revealed to sit on Govt. Accounts scrutiny quango. In that article I revealed some of the SLCC’s members were claiming up to £15K a year in expenses while holding other well paid quango positions and ‘advisory roles’ to Scottish Government organisations.

Also in an earlier article I covered the SLCC’s annual report, which revealed it had done little work on complaints, preferring to pass most complaints back to the Law Society of Scotland : Scottish Legal Complaints Commission reveals it passed most complaints about lawyers back to Law Society, has failed to act on Master Policy report

SLCC’s website ‘changed overnight’ after questions were raised at Holyrood over its performance & cost to taxpayers. While Justice Secretary MacAskill avoided disclosing much in the way of details in his answers to the parliamentary questions set by Mr Kelly, the Scottish Legal Complaints Commission appeared to shake itself up somewhat, publishing all minutes of meetings since July 2009 which it had previously withheld from publication. The SLCC’s Board Minutes for 2009, and those available for 2010 now published in albeit ‘redacted’ form, can be downloaded here : SLCC 2009 Board meetings & here : SLCC 2010 Board meetings

SLCC Chief Executive Eileen Masterman on a staggering £1350 a week, now absent for 6 months. The SLCC’s meetings from November 2009 onwards reveals its Chief Executive, Eileen Masterman, on a salary of £1350 a week, has apparently been absent from Board meetings and her post since late November 2009, being replaced temporarily in December 2009 by the SLCC’s Chair, Jane Irvine who from papers appeared to take on the Acting CEO role, which was then passed onto the SLCC’s Rosemary Agnew, according to the Board minutes for January 2010.

The Scottish Legal Complaints Commission were asked for comment on Eileen Masterman’s absence as CEO, however at time of publication have not replied to media enquiries …

The questions raised by James Kelly MSP to the Scottish Government regarding the Scottish Legal Complaints Commission :

James Kelly (Glasgow Rutherglen) (Lab): To ask the Scottish Executive what plans it has to review the performance of the Scottish Legal Complaints Commission.

(S3W-32561)

Kenny MacAskill: We have no plans to carry out a review of the Scottish Legal Complaints Commission at this time. It is too early to assess the effectiveness of the commission as it has only been operational since October 2008 and transitional processes remain ongoing.

Under the Legal Profession and Legal Aid (Scotland) Act 2007, the commission is required to publish a report, as soon as practicable after the end of the financial year, reporting on the discharge of its functions in that year and such action as the commission proposed to take in the following year. Scottish Ministers laid their 2008-2009 Annual Report in the Scottish Parliament on 8 February 2010.

James Kelly (Glasgow Rutherglen) (Lab): To ask the Scottish Executive what discussions it has had with representatives of the Scottish Legal Complaints Commission since its inception and regarding what issues.

(S3W-32562)

Kenny MacAskill The Scottish Government has been in regular contact with the Scottish Legal Complaints Commission on a range of issues such as the appointment of board members, the publication of the Commission's annual report, the Legal Services (Scotland) Bill and the transitional arrangements for complaints relating to the time before the Commission’s inception. Such discussions have been conducted on the basis that the Commission is largely independent of Government in how it fulfils its statutory responsibilities.

James Kelly (Glasgow Rutherglen) (Lab): To ask the Scottish Executive what the cost has been to the Scottish Legal Complaints Commission of complaints that it has itself investigated.

(S3W-32563)

Kenny MacAskill: The Scottish Legal Complaints Commission is responsible for setting its budget and any questions about its costs and spending should be directed to the Commission.

James Kelly (Glasgow Rutherglen) (Lab): To ask the Scottish Executive how much the Scottish Legal Complaints Commission has received from levies paid by the legal profession in 2009-10 and, of that income, how much has been spent on (a) running costs and (b) investigations.

(S3W-32564)

Kenny MacAskill: The Scottish Legal Complaints Commission is responsible for setting the levy and any questions about this should be directed to the Commission.

James Kelly (Glasgow Rutherglen) (Lab): To ask the Scottish Executive whether the Scottish Legal Complaints Commission has a budget surplus.

(S3W-32565)

Kenny MacAskill: The Scottish Legal Complaints Commission is responsible for setting its budget and any questions relating to this should be directed to the Commission.

James Kelly (Glasgow Rutherglen) (Lab): To ask the Scottish Executive who monitors the expense claims of board members of the Scottish Legal Complaints Commission.

(S3W-32566)

Kenny MacAskill: The Chief Executive of the Scottish Legal Complaints Commission is the accountable officer and is responsible for ensuring the propriety and regularity of the finances of the Commission and questions relating to financial monitoring should therefore be referred to the Commission.

The Commission is subject to audit by the Auditor General for Scotland and is required to lay the audited statement of accounts before the Scottish Parliament.

James Kelly (Glasgow Rutherglen) (Lab): To ask the Scottish Executive what the total amount of expenses paid to board members of the Scottish Legal Complaints Commission (a) was in 2008-09 and (b) has been in 2009-10.

(S3W-32567)

Kenny MacAskill: The Scottish Legal Complaints Commission is responsible for setting its budget and questions about its spending should be addressed to the Commission.

Credibility of Lord Hamilton’s plans for McKenzie Friends again called into question after stinging criticism from Scotland’s consumer watchdog

Scotland’s top judge Lord Hamilton. THE CREDIBILITY of highly restrictive arrangements Scotland’s top judge, the Lord President, Lord Hamilton wishes to impose on the introduction of McKenzie Friends to Scotland’s Courts have been called into question for a second time after Consumer Focus Scotland launched a stinging attack on Lord Hamilton’s February announcement to the Scottish Parliament’s Petitions Committee in which he stated he had decided to finally allow, albeit with as some have dubbed ‘draconian restrictions’, the appearance of McKenzie Friends (the well known courtroom assistants to party litigants) in Scotland’s courts some FORTY YEARS after their introduction in England & Wales.

Consumer Focus are the second consumer organisation to criticise overly strict plans for McKenzie Friends in Scotland. The latest criticisms by Scotland’s own consumer watchdog of Lord Hamilton’s apparently reluctantly announced plans for the introduction of McKenzie Friends come after UK wide consumer organisation WHICH? heavily criticised the Lord President’s plans to require those appearing as McKenzie Friends in Scotland’s courts to sign a certificate and give declarations of interest, requirements not commonly sought in any other jurisdiction which allows McKenzie Friends to assist the growing numbers of unrepresented party litigants now using our courts. You can read my earlier article on the criticisms from WHICH?, here : Consumer legal chiefs question Lord Hamilton’s plans for McKenzie Friends as calls grow for fairer deal for Scots court users

Consumer Focus expressed concerns over certification process of McKenzie Friends in Scottish Courts. Consumer Focus stated in their response to Holyrood : “Consumer Focus Scotland has particular concerns about the proposals for a certification process to be followed when an unrepresented litigant wishes to use a McKenzie Friend in the Court of Session. There is no requirement for such a process to be followed in England and Wales, where an unrepresented litigant would usually submit a letter to the court requesting to use a McKenzie Friend, or would inform a court official when attending a hearing. We are extremely disappointed by the rationale given for introducing such a certification process in Scotland. The rules state that a certificate is to be submitted ‘to enable the court to police the behaviour of a lay assistant and, in an extreme case, to exercise a sanction against him or her.’ This gives entirely the wrong impression about how the judiciary is to view and approach the function of a McKenzie Friend.”

A Judge or sheriff should be able to take action if a McKenzie Friend steps out of line : “We believe it is entirely appropriate that the sheriff or judge be given some discretion to take action where he/she is unhappy with the behaviour of a McKenzie Friend, such as warning them about their behaviour. However, McKenzie Friends in their traditional sense are in court in a supportive capacity to an unrepresented litigant. By providing moral support or indeed offering guidance, for example suggesting questions for the litigant to ask, a McKenzie Friend may help the litigant present their case better. We see this as an advantage not only to the unrepresented litigant but also to the court and the other party in the litigation. If these advantages are to be realised in practice, it will be necessary for McKenzie Friends to be approached in a positive way by the bench.”

Lord Hamilton’s plans for requiring the signing of a certificate by a party litigant & their McKenzie Friend were called into question : “We are also concerned that the information required to be provided within the certificate is contradictory and could be confusing for consumers. Our interpretation of the proposals is that a person related to the litigant will not be excluded from acting as a McKenzie Friend. However, it is unclear how such a person could be said to have ‘no interest in the case,’ and we are not clear in any case why the fact that someone is a relative of the litigant is of any relevance.”

Consumer Focus went onto criticise Lord Hamilton’s requirements of a potential McKenzie Friend’s “relevant experience” : “We are also unsure of what is intended to be demonstrated in terms of ‘relevant’ experience to act as a McKenzie Friend, nor why evidence of such experience should be necessary. In many circumstances, particularly where a McKenzie Friend is related to the litigant, or being brought along because they are a close friend or colleague, the McKenzie Friend is unlikely to have any prior court experience. The requirement to provide evidence of ‘relevant experience’ also introduces an element of professional services which appears somewhat contrary to the requirement that a McKenzie Friend receive no remuneration for their services, and to the Lord President’s proposal that they would not be able to act as the party’s agent.”

Oddly however, Consumer Focus Scotland chose to support plans to forbid McKenzie Friends from being paid for their assistance, this despite case law & accepted practice in England & Wales where McKenzie Friends can receive payment for their services, payments which are usually significantly lower than what a solicitor would charge their client. Consumer Focus said on the issue of payment to McKenzie Friends in Scotland : “We support the view expressed both by the Lord President and the Scottish Civil Courts Review that McKenzie Friends should not be remunerated for their assistance. We believe this is a necessary measure to protect consumers from unscrupulous practice emerging.”

Consumer Focus continued, raising fears of party litigants being disadvantaged without a McKenzie Friend against opposing legal teams : “We would worry about the effect of such formal rules on the use of McKenzie Friends in court. As was stated in our earlier evidence to the Committee, we know from our own research with sheriff court users, and indeed from other research, that many people experience considerable anxiety when attending court. Unrepresented litigants are very often faced with a solicitor representing the other side, within an intimidating and formal setting dominated by lawyers wearing formal dress and using legal language. We have long been concerned that this places unrepresented litigants at a potential disadvantage in court proceedings and indeed may deter people from pursuing legal action. Having the support of a McKenzie Friend could help take away some of the fear associated with appearing in court and therefore potentially improve the experience of unrepresented litigants in court.”

Lord Woolman granted Scotland’s first Civil Law McKenzie Friend. The case that broke the forty year mould on McKenzie Friends in Scotland, Martin Wilson v North Lanarkshire Council & Others saw Lord Woolman grant Scotland’s first Civil Law McKenzie Friend in the Court of Session in mid November 2009, albeit forcing the McKenzie Friend to sit behind the party litigant, Mr Wilson in one of Scotland’s longest running civil damages action cases. You can read more about this in an earlier article, here : First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice

Consumer Focus went onto express serious concerns over Lord Hamilton’s overly strict rules on McKenzie Friends : “We have concerns, however, that requiring the unrepresented litigant and the McKenzie Friend to follow a formal certification process will do nothing to allay such fears about appearing in court, and may in fact increase it. We would have serious concerns that the rules as drafted would put many people off using, or agreeing to be, a McKenzie Friend. We do not dispute that there may be some instances where a judge would like to seek more information on the individual acting as a McKenzie Friend, to be reassured that the McKenzie Friend is not receiving remuneration for example. However, we do not believe it is necessary, or proportionate, for such formal assurances to be sought in every case. It might be appropriate, for example, for the judge simply to ask the unrepresented litigant who they had brought along with them to support them.”

English guidance has no force of court rules, raising more questions on overly strict Scottish conditions for McKenzie Friends : “While the Lord President appears to have based much, though not all, of his approach on guidance issued by the President of the Family Division of the Judiciary of England and Wales, we would emphasise that the guidance in England and Wales is entirely that: guidance. The approach in England and Wales does not have the force of court rules, and neither the McKenzie Friend, litigant nor the member of the judiciary are required to comply with the guidance.

Consumer Focus attacked Lord President’s plans for McKenzie Friends as being “very prescriptive” : “The court rules proposed by the Lord President appear very prescriptive, giving the judge or sheriff little discretion to take a proportionate approach to the use of a McKenzie Friend, depending on the circumstances of the case. As stated above, we would be worried about the effect that such a lack of discretion and applying a stringent approach to the use of McKenzie Friends would have on the number of people who might want/be able to make use of the function. In particular, we would have serious concerns if a similar approach to that proposed for the Court of Session Rules were to be adopted by the Sheriff Court Rules Council for use in the sheriff court, where a far greater number of unrepresented litigants appear.”

Lord Gill supported the introduction of McKenzie Friends in his Civil Courts Review. Scotland’s Lord Justice Clerk, Lord Gill also supported the introduction of McKenzie Friends to Scotland’s Civil courts, reported on at length in his Civil Courts Review, although mentioned none of the strict conditions which the Lord President, Lord Hamilton now wishes to impose on the Scottish version of a McKenzie Friend. You can read more about Lord Gill’s Civil Courts Review here : Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

While expressing support for Lord Hamilton’s commitment to clarify the rules on McKenzie Friends in Scottish courts, Consumer Focus went onto say they do not believe the proposed approach to formalising the rules around McKenzie Friends is the best one, particularly as it could be subject to change by a future Lord President. Consumer Focus expressed their preferred approach to formalising the rules on McKenzie Friends as follows : “It is Consumer Focus Scotland’s view that the best way to ensure that there is a strong presumption in favour of a McKenzie Friend is to enshrine this right in primary legislation. The current confusion surrounding this area suggests such legislation is a necessary step. Taking this approach would make the use of a McKenzie Friend a tangible right, which would be in the interests of consumers who may wish to ask for permission to have one and would also clarify the rules for the judiciary and court service staff.”

“Such legislation should not be prescriptive but should set out the general principles surrounding the use of a McKenzie Friend. Court rules could then be used to supplement such legislation by providing guidance to the judiciary as to an appropriate approach for dealing with requests for McKenzie Friends as well as outlining the parameters of what a McKenzie Friend can and can’t do. As discussed above, any court rules relating to McKenzie Friends should not be so prescriptive as to take away the discretion of a sheriff or judge to respond flexibly to the circumstances of each particular case.”

“While we believe there should be a strong presumption in favour of a McKenzie Friend, we do, however, agree this should not be an absolute right and a judge or sheriff should retain the discretion to restrict the use of a McKenzie Friend when it is impeding the proper administration of justice. This principle could again be set out in court rules, to be applied at a judge’s discretion.”

“Enshrining the general principle in primary legislation, with further detail outlined in court rules, is the current approach generally taken to rules around rights of audience for lay representatives in the sheriff court, such as in the recent Home Owner and Debtor Protection (Scotland) Act. We would suggest that a similar approach would be appropriate for formalising the rules for McKenzie Friends in Scotland.”

“It is our understanding that the Scottish Government intends to bring amendments at Stage 2 of the Legal Services (Scotland) Bill to allow those without a right of audience, such as McKenzie Friends, to be granted rights of audience in certain circumstances. We would like to see this amendment outline the principle of the right to use a McKenzie Friend in the traditional sense in Scotland.”

A retired Scottish solicitor who is in favour of the introduction of McKenzie Friends to Scotland, commented on the criticisms of the Lord President from Consumer Focus.

He said : “This is the second time a consumer organisation has raised serious doubts about the credibility of the Lord President’s plans to force strict requirements on the use of McKenzie Friends in Scottish courts. It must therefore be clear to all there are significant problems with the Lord President’s proposals which appear to put Scotland out of step with other jurisdictions, and may lead to unfair practice in the courts where unrepresented party litigants are again at a disadvantage, finding the rules on McKenzie Friends so strict that one cannot be obtained.”

He continued : “Whilst I note the Scottish Government intends action on the issue, I for one would welcome an appearance by the Lord President before the Parliament to explain his reasoning behind his stringent requirements for McKenzie Friends. I believe it is vital the public be allowed to hear Lord Hamilton’s point of view, which should in turn be questioned by our elected MSPs.”

However, an experienced individual with a legal background, who has successfully assisted many unrepresented party litigants in the English courts questioned Consumer Focus Scotland’s support for Lord Hamilton's proposal to ban Scottish McKenzie Friends from receiving payment for their assistance.

He said : “There are already established parameters in the English courts where McKenzie Friends can and have been paid for their assistance to unrepresented court users. There has to my knowledge been no problems with this from either side of the court or from the bench, and I do not see why a consumer organisation would support a condition which may very well deter proficient & experienced individuals with legal backgrounds or other walks of life coming forward to offer their services as McKenzie Friends to those in need.”

A particular piece of case law from the English Family courts which supports the remuneration of McKenzie Friends for their services can be found here : N (A Child) [2009] EWHC 2096 (Fam) Case No: FD03P02333 where the judge, Mr Justice Munby concluded “The father’s McKenzie Friend is entitled to charge, if he can find clients willing to pay his fees, at an hourly rate which can hardly be said to be extravagant when contrasted with the fees one frequently finds being charged to privately paying clients in family cases".

The next hearing of Petition 1247 - McKenzie Friends for Scotland will be on 20 April 2010 at the Scottish Parliament’s Petitions Committee. Be there if you can, and please support the introduction of McKenzie Friends in Scottish courts on an as equal and fair basis as exists in the remainder of the UK.

To view my earlier coverage of the campaign to bring McKenzie Friends to Scotland, click here : Bringing McKenzie Friends to Scotland's Courts - The story so far