WIGS IN A TWIST : Quashed convictions row as court staff forced to apologise to judges over claims of ‘wrong data’ released to media

Bungled FOI release questions quashed convictions figures for Scottish judges. A ROW has broken out between the Judiciary of Scotland and the Scottish Court Service (SCS) over the release of information in response to a Freedom of Information request which sought data on appeals against conviction and sentence at High Court and Sheriff Court level.

The data, which revealed numbers of quashed convictions against senior judges and a former Lord Advocate who also sat as a judge, has already forced apologies from the Chief Executive of the SCS to members of the judiciary and a partial retraction of the information provided via FOI legislation. However the SCS has since been ordered to review what information it did release, and publish a ‘correct’ version as soon as possible.

The now much debated information provided by staff from the SCS claimed that in the past five years, former Lord Advocate & Court of Session Senator Lord Hardie, now retired and sitting as a peer in the House of Lords, allegedly had eight convictions and 20 sentences successfully appealed.

More worryingly, the current number two in the Scottish Justice system, the Lord Justice Clerk Lord Carloway who supports the removal of a long held safeguard of corroboration from the Scottish criminal justice system, was revealed in the now allegedly defective information provided by the SCS as having seven convictions overturned against his judgements since 2008 and eight sentences successfully challenged.

Another well known judge, Lord Brailsford, recently in the news relating to twitter threats made by a family member, was revealed in the SCS statistics to have had four convictions quashed and 15 sentences challenged in the last five years.

Overall, the figures provided by the SCS showed that between 2008 and 2012, there were 301 successful appeals in High Court cases, including 86 overturned convictions.

The figures for legal challenges in Scotland’s Sheriff Courts revealed there were 1,619 appeals granted with 130 convictions quashed, with Sheriff Lindsay Foulis, who sits at Perth Sheriff Court, having two convictions and 39 sentences successfully challenged while in another example, the now retired Sheriff John Herald, who presided at Rothesay Sheriff Court had four convictions overturned and 20 sentences appealed successfully.

However, already up to their necks in controversy over secret financial dealings and undeclared interests in court case after court case, members of Scotland’s judiciary apparently blew several fuses over headlines in the media relating to the numbers of quashed convictions, demanding apologies & retractions over the information released by the Scottish Court Service.

The apology was swift, but for the most part it’s detail appears to rely on the fact that some of the information provided by the SCS exceeded the “five year” term of the FOI request itself … which does not exactly lead to a convincing retraction of claims already published widely in the media.

And in a somewhat humiliating move, the Chief Executive of the SCS was forced to personally write in one newspaper earlier this week in an effort to have his two week old apologetic statement published (reprinted below) … perhaps the delay was caused by everyone wondering what the judges are really up to for their £200K plus a year, expenses and a blank slate for interests on the side ...

The Judiciary of Scotland were asked for comment, although none has been provided at time of publication.

There is a solution of course – publish the statistical records of judges, their judgements, legal challenges and successful appeals on a live basis and the Scots public will be able to see for themselves exactly how our wealthy, well paid, & secretive judges are actually performing in our clogged up “Victorian” Scottish courts system.

The apology : Information on Appeals - Statement by Chief Executive, Eric McQueen

On 18 June Scottish Court Service (SCS), in response to a request for information made in terms of the Freedom of Information (Scotland) Act provided data on appeals against conviction and sentence at High Court and Sheriff Court level. The data provided was by appeal type and by judge in respect of cases ‘overturned on appeal in each of the last five years’.

Since the data was originally released a number of serious discrepancies have been identified. Additionally, the SCS did not provide important contextual information as to the date of the original court decision in many cases the court decision which was subject to appeal was made more than five years ago.

SCS apologises to those affected. Specifically, SCS apologises to those members of the judiciary whose position has been misrepresented as a result of the data provided. The data attributed to the Lord Justice Clerk includes cases originally decided more than five years ago and includes cases in error.  In the course of his judicial career, which commenced in 2000, Lord Carloway has had three cases in which the conviction was overturned and all of these predate 2008.

Likewise the data attributed to Lord Hardie contains errors in that the data indicated that he had eight conviction appeals listed as being sustained when the correct figure is five.

It is also considered likely that the data in relation to Lord Brailsford and Lord Woolman may contain similar inaccuracies and this is currently being checked.

The position in relation to sheriffs is being considered separately.

SCS is now reviewing all the data and will publish a correct version as soon as possible.

'McKenzie Friend' proposal to Parliament seeks to end 39 years of lawyers monopoly over Scots access to justice

Law Society 'monopolises' Scots access to court. THIRTY NINE YEARS after laws allowing a 'McKenzie Friend' in the English courts system were introduced to facilitate the public's access to justice by allowing a not necessarily qualified legal individual to assist a person in court, a McKenzie Friend Petition (Petition 1247) has been put to the Scottish Parliament at Holyrood, asking for the implementation of the same privileges of a ‘McKenzie Friend’ to be granted in Scotland, to help many who find it difficult through the current system of legal representation, controlled by the Law Society of Scotland, to secure access to the Scottish Courts.

McKenzie Friend petition will end 39 years of prejudice against Scots ‘justice rights’ in Court. The petition, brought to the Scottish Parliament by Mr Stewart MacKenzie, calls on the Scottish Parliament to urge the Scottish Government to introduce a McKenzie Friend facility in Scottish courts as a matter of urgency. Mr MacKenzie’s case involving the legal profession became famous, when revelations of secret internal memos documenting a claims fixing policy at the Law Society of Scotland, resulted in a televised confrontation between Mr Swinney & former Law Society Chief Douglas Mill during the Justice 2 Committee's investigation of the now passed into law Legal Profession & Legal Aid (Scotland) Act 2007. The memo-gate scandal eventually toppled Douglas Mill as Law Society Chief Executive in January 2008.

Mr MacKenzie speaking today to Diary of Injustice said : "I am hopeful the petition will get a good hearing at the Scottish Parliament, and begin the work of ending what is a glaringly prejudicial omission from the public's legal rights & entitlements in Scotland, while people in the rest of the UK have enjoyed and heavily used the right of having a McKenzie Friend accompany them in court hearings for nearly four decades."

Cabinet Secretary Swinney will be asked to speak to Holyrood committee on the merits of McKenzie Friends. It emerged today, the Scottish Parliament's Petitions Committee has set a 5th of May hearing for the petition, but has not granted Mr MacKenzie the right to give oral evidence, to which the petitioner replied : "Since I am not being allowed to speak on the merits of my own petition, I have asked my MSP, Cabinet Secretary for Finance, John Swinney, to attend the Petition Committee hearing and speak on my behalf, as he has done so with considerable care and attentiveness on previous occasions."

In England & Wales, the concept of a McKenzie Friend has existed for some 39 years, assisting people in court, who find it difficult to obtain legal representation either through cost or other reasons.

The guidance from the President of the Family Division of the courts in England & Wales states : “Where proceedings are held in open court, it is clear from the principles set out in Court of Appeal decisions that a litigant who is not legally represented has the right to have reasonable assistance from a layperson, sometimes called a McKenzie Friend (“MF”).”

A litigant in person wishing to have the help of a MF should be allowed to do so unless the judge is satisfied that fairness and the interests of justice do not so require. The presumption in favour of permitting a MF is a strong one.”

A McKenzie Friend May :
• Provide moral support for the litigant
• Take notes
• Help with case papers
• Quietly give advice on: points of law or procedure, issues that the litigant may wish to raise in court, questions the litigant may wish to ask witnesses.

Mr Stewart MacKenzie's 'McKenzie Friend' Petition reads as follows : “39 years after a McKenzie Friend was introduced in the English Courts, we still do not have an equivalent in Scots law. For those who are unable, for whatever reasons, to be represented in court by a solicitor, be it cost or principle, it is unjust, immoral and a breach of their fundamental human right to have a fair hearing with reasonable “equality of arms” as required by Article 6 of the European Convention on Human Rights, to force them to appear in court as a party litigant without the facility of having someone to offer them support and guidance.

As people in Scotland are having their lives ripped apart by having their homes repossessed without the opportunity, as they do in England, to at least have their day in court, it is barbaric and inhuman that this obstinate refusal to ensure that the people of Scotland are not treated in an inferior manner compared with the rest of the United Kingdom when it comes to access to Justice. This is not an attempt to get the Parliament to consider any individual case.”

Justice Secretary MacAskill criticised over his own failure to reform access to justice. While many of the failures to implement the 1990 access to justice legislation can obviously be pinned on previous Scottish administrations who stood by while the Law Society in effect dictated policies on restricting the individual’s right of access to legal representation and the courts, the current Justice Secretary, Kenny MacAskill, and the Scottish Government have done very little, if anything to improve the lot of members of the public who simply cannot get into court because the legal profession feel it is not in their best interests to allow such cases to go forward.

Justice Secretary’s leaked letter promised cabinet colleague John Swinney that access to justice was happening two years ago. The road to reforming access to justice in Scotland has been a rocky one so far, as almost all attempts to-date of implementing changes allowing the Scots public increased access to justice and the Scottish Courts, have either been thwarted by the legal establishment, or held in political limbo by an exceedingly uncooperative Justice Secretary Kenny MacAskill, who despite promises to Cabinet colleague John Swinney, two years ago in 2007 that change 'was on the way', has in reality made things very difficult for anyone other than solicitors to enter the Scots legal services market to this date and no doubt beyond.

High Court Judge Lord Hardie while serving as Lord Advocate, wanted to repeal Scots access to justice legislation. However, while the prickly thorn of reforming access to justice falls to the current Scottish Government to act upon, the legal establishment’s attitude to counter any reforms to increased access to the Scottish Courts go back years, as I revealed in an earlier report where in 1997, the serving Lord Advocate at the time, Lord Hardie, himself advocated repealing the laws which allowed increased competition in the Scots legal services market, which had actually been kept from the public by an intense campaign ran by the Law Society of Scotland for over seventeen years, seeing Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 only implemented in March 2007 after public queries and the release of documents through Freedom of Information laws which revealed the secret campaign by senior law figures and civil servants within the Scottish Executive to withhold or repeal the access to justice legislation.

A member of the public whose legal case could have significantly benefited from the use of a McKenzie’s friend said today : “"It is a matter of record that Lord Hardie has consistently denied the Scottish Public any meaningful or proper access to the law by his stubborn obstruction of articles 25-29 [of the Law Reform & Miscellaneous Provisions (Scotland) Act 1990], allowing members of the public to be represented by a third party of their choice.“

He went on : “The deafening silence by every major political party which has accompanied this wicked betrayal of trust indicates their tacit approval of it. Disturbingly, the Scottish Courts have also consistently refused to allow recordings of hearings to be made - a proposal also rejected by the Scottish Parliament.”

Given the lack of willingness on the part of the current Scottish Government to speedily reform the Scots legal services market, leaving many clients out in the cold in terms of legal representation, many Scots caught up in legal difficulties feel with some justification, their rights are being impugned by both the legal profession and the Government simply to protect solicitors long held monopoly over access to justice.

Clearly the Scots public could benefit from the McKenzie Friend facility being applied to Scots Law, and as with other legal reforms long overdue, the Scottish Government should act without delay and reverse the 39 year prejudice against ordinary Scots obtaining access to courts, while our English counterparts have enjoyed the use and privilege of a McKenzie Friend at their side.

I therefore look forward to reporting on and watching how the McKenzie Friend petition progresses through the Scottish Parliament .. as surely the public interest of access to justice comes first over protecting solicitors business markets & profits.

SNP Executive decides new look into limited legal services reforms as legal profession and judiciary lobby against change

Such is the nature of the legal profession, hellbent on protecting itself from any chance of reform at all, an ex-judge, who is widely known to be quite vocal against any changes in the way the Judiciary & legal profession do their centuries old business, has warned SNP Justice Minister Kenny MacAskill in an 'open letter' printed in the Scotsman, that he and the new administration are certainly being kept an eye on.

A quote from Lord McCluskey's 'open letter' in the Scotsman newspaper to Justice Minister MacAskill :

"For us, the truth is different. But, despite your title, the true content of your ministerial portfolio is not "justice" at all.

You cannot provide, or even administer, justice. Society has entrusted judges with that responsibility. Their job is to try to ascertain the facts and apply the law impartially. They must act separately from the political power and apply the law impartially: that is the principal feature of the rule of law. You, as an experienced lawyer, understand that well. "

While Lord McCluskey, now a peer in the House of Lords may be slightly correct on that one, the Courts haven't been giving that much justice to people at all - indeed, the Judiciary, who control the Courts have sided with their colleagues in the legal profession many times, restricting even the availability of access to justice, ultimately deciding who would get into Court and who would not.

In a recent FOI disclosure for instance, it was revealed that former Lord Advocate Lord Hardie, now a serving Judge, blocked the implementation of Sections 25-29 of the Law Reform (Misc Provisions) Act 1990, which would have opened up the legal services market many years ago .. and I covered that revelation here :

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

However, Lord Hardie went one further ... he recommended repeal of those sections of Law allowing more widely available access to justice .. because of course, the legal profession are completely against opening up their business monopoly to allow anyone access to legal services .. as of course, that would mean that anyone could get access to the Courts - and the legal profession would be powerless to stop it.

The Clementi reforms to legal services, however, are not going to be implemented in Scotland - instead, a "version" of the Clementi reforms, known generally as "Tesco Law" may make it to the books - but that begs the question, if there is a wider choice of access to justice & legal services in England & Wales, why leave Scotland trailing behind ? Is that perhaps just to satisfy the likes of the Law Society of Scotland and their members who want to protect their business market monopoly on legal services ?

A quote from Justice Minister Kenny MacAskill in the Herald article on this subject today :

MacAskill, who was confirmed as cabinet secretary for justice on May 17, again said that the new government will draw the line at introducing Tesco Law.

He told The Herald: "There's probably an opportunity for a middle way that is not Tesco Law and which preserves the integrity of the profession and avoids high street law firms being decimated, but which allows the larger firms to raise outside capital to pursue their global ambitions."

Well, while it's good the new Justice Minister recognises there is a need for reform to legal services, it would be much better to follow the full thrust of the Clementi reforms in England & Wales - certainly anyone who has experience of using Scottish solicitors would probably agree on that one, many consumer organisations also agree, and recently the Which? consumer association filed a "super complaint" with the OFT on these issues of restricted legal markets & poor regulation in Scotland .. .so if the OFT investigate and find there is indeed restriction on legal services & access to justice in Scotland - what will the SNP Executive do ? keep on plugging away with protecting solicitors business markets at the expense of access to justice ? or allow Scotland the same reforms the rest of the UK enjoy ?

I covered the issue of Which? calling on the OFT to look into access to legal services in Scotland here : Consumers call for OFT Inquiry to investigate restriction of legal services in Scotland

The Law Society of Scotland, predictably, objected to such an inquiry, and have been lobbying fiercely since it's announcement, whispering in the ears of Scottish politicians not to let the London based OFT get their way and be able to look into Scottish issues ...

I covered the Law Society's objection to the Which? "super complaint" here : Law Society of Scotland reject Which? 'interference' & "super complaint" to OFT against lawyers monopoly on access to justice

Perhaps, it may also even be open to someone to take a case to the Courts on grounds of Article 6 of ECHR, that lack of implementation of such legal reforms is prejudicial & discriminatory, and prevents fairness in Scots Law compared to the rest of the UK ? .. but then again, someone may have to find a lawyer to take such a case on in the current monopoly on legal services enjoyed by the legal profession - and would the Law Society of Scotland allow any lawyer to take on such a case ? and even if a lawyer could be found, could they even be trusted to pursue such a legal challenge to their own business model & way of life ? I doubt it ...

Despite being given a tap on the shoulder today by an ex-Judge, Mr MacAskill, please give us the access to justice which the rest of the country enjoys, and don't keep the Scottish people further in the dark just because the legal profession wants it so they can protect their monopolistic business model, ensuring they alone can decide who gets access to justice & access to the courts.

Following articles from the Scotsman and Herald newspapers.

http://thescotsman.scotsman.com/scotland.cfm?id=825972007

An open letter to the new justice minister

LORD McCLUSKEY

ALLOW me to congratulate you on your appointment: it can be a bed of nails or roses - it depends on how you lie.

May I be bold and offer you a word of advice, beginning with a story? The late John Smith often used humour to make a serious point. As the Soviet Union was approaching final collapse, he told of a young member of the Politburo of the Czechoslovak Soviet Republic who, attending his first meeting, listened silently while the old apparatchiks droned interminably on. Finally, the general secretary turned to him: "Comrade, would you like to say something at this, your first opportunity to contribute to the governance of our great Soviet Republic?"

"Yes," he replied eagerly, "I propose that we create a ministry of marine resources."

"But," the chairman replied, "Czechoslovakia is land-locked; we have no marine resources."

"So what?" responded the young man. "We've got a ministry of justice."

The story reflects a truth that is being lost as memories of Soviet rule fade: the so-called ministries of justice of the Soviet republics had little to do with justice and everything to do with using legal processes to suppress dissent and bury inconvenient truths.

For us, the truth is different. But, despite your title, the true content of your ministerial portfolio is not "justice" at all.

You cannot provide, or even administer, justice. Society has entrusted judges with that responsibility. Their job is to try to ascertain the facts and apply the law impartially. They must act separately from the political power and apply the law impartially: that is the principal feature of the rule of law. You, as an experienced lawyer, understand that well.

So your job is different: it is to supervise the machinery of justice, to set the framework. That does not just mean the "pay and rations" - making sure there are enough judges, courts, clerks, to enable the administration of justice to proceed as smoothly as possible.

It also means you must consider what measures, if any, are appropriate to lay before parliament to give effect to the considered and educated views of the public on such matters as sentencing, legal aid, rules of evidence, detention before trial and prisons. If you persuade parliament that change is necessary, then parliament enacts the law and the judges apply it, whether they like it or not.

You hardly need me to remind you of this. Yet there is a seemingly irresistible temptation for ministers to try to "do something", to make a mark, to fashion a so-called reform that will be a lasting monument to the wisdom and perspicacity of its progenitor, and provide a line for the inevitable obituary.

Forget it. Remember Diogenes. He was the wise man who, needing little and wanting less, lived in a barrel, enjoying the sun. Men came from far and wide to seek his advice. One day Alexander the Great himself arrived. Standing over the tub, he asked: "What can I do for you?"

Diogenes replied: "Just stand to the side, you're keeping the sunshine from me."

The lesson is sometimes the best thing is to have the humility not to interfere. For a minister of justice coming to office in Scotland, it is essential to remember our system has taken its shape on the anvil of experience. It is wiser than any of those who fashioned it.

Even for you, a lawyer, the temptation to change is powerful. Your will to resist that temptation may be undermined by your inheriting a civil service machine that has hitherto shown little grasp of what make the Scottish system uniquely valuable. The previous administration, with a mix of arrogance and prejudgement, turned its back both on the history of how our system developed and on the massive studies that reassessed our legal institutions.

It produced so-called consultation papers and ignored responses challenging the superficial thinking that lay behind their proposals.

You are free to think for yourself. Please start again, remembering the history of our courts. You have plenty of time. Study the 20th-century history of their reform. Don't lay yourself open to the charge of arrogance, the charge that you imagine you know better than the historical process that gave us one of the world's finest legal systems.

You don't have to do anything. Emulate the bon vivant Lord Justice-Clerk Aitchison, who, when asked by his macer how he would respond to a newspaper's description of him as "the well-known Sottish judge", replied: "I shall just sit tight."

I keep using the word "arrogance". So is this a case of an old pot warning a new kettle not to turn black? Of course it is! But this old pot has little power and no responsibility. You have both. We look forward to your exercising it with wisdom.

and now the article from the Herald on the new SNP Executive taking a look at legal services reform - although reform seems to be not for us as the rest of the UK enjoys ...

http://www.theherald.co.uk/business/law/display.var.1429413.0.0.php

SNP victory ushers in new look at legal services market reform
IAN FRASER May 28 2007

Justice Minister Kenny MacAskill has said that the new Scottish Executive is prepared to implement a version of the Clementi reforms that would remove ownership restrictions on law firms.

His comments come as an Australian law firm last week pioneered a potential new funding avenue for solicitors when it became the first to float its shares on the stock market.

In England and Wales, the Clementi report has looked at how best to reform the legal services market - including the way in which law firms raise capital. Its findings are due to be enacted through the Legal Services Bill in December 2007.

The reforms will benefit larger England-based law firms by enabling them to raise external capital to fund their expansion or systems development, as well as making it possible for their partners to benefit financially from the goodwill wrapped up in their businesses.

However, the reforms were not on the agenda in Scotland until the SNP's recent election victory.

While "Tesco Law" - the part of the Clementi package which allows businesses such as banks, supermarkets and insurers to have lawyers on their payrolls and provide commoditised legal services to their customers - is not on the agenda in Scotland, MacAskill said he does not believe Scottish-based firms which may require capital to fund expansion should be discriminated against.

MacAskill, who was confirmed as cabinet secretary for justice on May 17, again said that the new government will draw the line at introducing Tesco Law.

He told The Herald: "There's probably an opportunity for a middle way that is not Tesco Law and which preserves the integrity of the profession and avoids high street law firms being decimated, but which allows the larger firms to raise outside capital to pursue their global ambitions."

‘Individual teams may be encouraged to form their own company’

MacAskill was speaking following the flotation of the Australian law firm Slater & Gordon, which made history last week by becoming the first law firm anywhere to list its shares on a stock market.

Taking advantage of changes to Australian legislation, the class action specialist listed on the Australian Stock Exchange on May 21. Its shares surged by 40% on day one, valuing the firm at A$150m (£62m).

It is a move that could offer a template for UK firms seeking to raise much-needed capital.

Accountant Deloitte said Slater & Gordon's initial public offering is likely to trigger many more.

Jeremy Black, a director in Deloitte's professional practices group, predicts that several mid-tier law firms in the UK will seek to float on the Alternative Investment Market.

He said: "If you look for precedents, we have seen accountants, management consultants, patent attorneys, architects and chartered surveyors float. I see no reason why law firms are so different from these organisations. AIM is the more likely market, as a firm would need a market capitalisation of around £200m to list on the full market."

However, Black warned that Scottish firms look likely to lose out, despite MacAskill's remarks.

He said: "It sounds to me that law firms in Scotland are going to be denied that choice, which could to some extent be considered a disadvantage."

Black admitted that the Clementi reforms represent a real threat to "high-volume, low-value lawyers" such as small high-street operators and sole practitioners. He says this is because supermarkets such as Tesco, banks such as HBOS, and insurers such as Aviva/Norwich Union are likely to eat into their territory, winning clients on the strength of their brands.

He said: "There is likely to be significant consolidation and aggressive competition from well-known brands. We expect to see the number of sole practices and small partnerships currently in existence decrease significantly. The UK high-street legal market will change beyond recognition."

However, he believes that the Clementi reforms will also present opportunities for "low-volume, high-value lawyers" including the mid-tier firms such as McGrigors and Dundas & Wilson and Magic Circle firms such as Freshfields and Linklaters.

However, even here, the availability of external capital could also pose a threat. He said: "Individual teams may be encouraged to break away and form their own company with the backing of an external investor."

Alistair Morris, chief executive of Pagan Osborne, accused MacAskill of "protectionism" in his desire to buck the market over Tesco law.

He said: "The horse has already bolted on Tesco law. Commoditisation is already happening, with organisations including Halifax offering legal panels for conveyancing work, to whom they dictate very tight terms.

"The future is already looking very bleak for the traditional high-street solicitor. Whether alternative business structures happen or not, the commoditisation of certain types of legal services is already under way."

Morris believes that MacAskill ought to go further and usher in the full suite of Clementi-style reforms, which he believes would revolutionise the legal profession for the better.

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

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

Scotland's former Lord Advocate, Andrew Hardie QC, has been revealed as one of the chief obstacles in opening up the long standing solicitor & advocate monopoly on the public's wider access to legal representation and the courts.

You can download the Scottish Executive's FOI Law Reform Disclosure on their failure to open up the public's access to legal representation HERE (pdf format)

In an amazing hardline veto of reforms which would have opened up choice of legal representation to the public, the Lord Advocate stamped his outright hostility to implementing sections 25-29 of the Law Reform Misc Provisions Act 1990, which have come to light in an email from his Private Secretary reprinted here :

LAW REFORM (MISCELLANEOUS PROVISIONS)(SCOTLAND) ACT 1990: IMPLEMENTATION OF REMAINING PROVISIONS OF PART II

The Lord Advocate has seen your Minute of 13 June, and said that he does not think that work should commence on implicating Sections 25-29 for the following reasons:

( 1) Other reforms have not had time to bed down (para 16).The Lord Advocate understands that the effect of the introduction of Solicitor-Advocates is being evaluated.

(2) There is little interest in Scotland having these provisions available (para 17). The ONLY interest has been from the Institute of Commercial Litigators, which body was rejected by the Lord Chancellors Advisory Committee.

(3) There is no obvious benefit from implementing Sections 25-29 (para 18).

(4) The provisions will involve considerable preparatory work by the Secretary of State and the Lord President - both of whom have more important concerns.

(5) There is no pressure for implementation

The Lord Advocate advises delaying all work and if no relevant interest appears within the next year, consideration should be given to repealing these provisions.

RAHAT NAWAZ Private Secretary CROWN OFFICE 24 June 1997

The Lord Advocate must have really had it in for people who couldn't get access to the courts or even secure the services of a lawyer, because the Executive - and particularly the Lord Advocate's Crown Office knew full well - for years, the problems reported to them by the public, elected politicians and civil servants, not to mention consumer organisations such as the Scottish Consumer Council, that there was a severe problem in the Civil Courts system in Scotland where swathes of people simply couldn't get access to the courts, or even obtain the services of a solicitor to handle necessary and important cases - unsurprisingly, including such cases as ... suing lawyers for negligence and handling other legal issues directly involving or against the legal profession itself....

So, the question is, was Andrew Hardie standing up for his colleagues in the legal profession, ensuring their valuable commercial monopoly over access to the Courts would continue ?

You can make a conclusion for yourselves based on the content of the above email alone .. but I say - Yes, the Lord Advocate, and indeed, the Scottish Executive were standing up for protectionism and commercial monopoly, with probably a helping hand from the legal profession to keep their profits & monopoly over legal representation.

Why do I say that ?

Simple. Andrew Hardie and everyone else, from 1990 onwards when the Law Reform Misc Provisions Act 1990 was introduced - and that includes the former Tory Government & Scottish Office prior to 1997, knew there was a huge public outcry for opening access to the courts because the cosy deal between the legal profession & the then Scottish Office, continued on to the Scottish Executive was effectively restricting the rights of the public to get into court in the first place - even having the effect of restricting the availability of legal representation - because lawyers and advocates could, and still do, select the cases they want to appear in court - and kill off the ones they don't like - or those which would be a major thorn in the side of the legal profession or the law in general.

Actually, as you can see, the Lord Advocate went much further than recommending a delay in the implementation of Sections 25-29 ... he actually sought the repeal of these sections of the Law Reform (Misc Provisions) Act on reasoning and motives mentioned in the email, one could question as perfidious.

Of course, not everyone thought like the Lord Advocate .. and there were actually recommendations from the Justice Division of the Scottish Executive to begin work on implementing Sections 25-29 of the Law Reform (Misc Provision) Act 1990, to allow a wider choice of legal representation ... shown here in report from Mrs Brennan of the Scottish Executive.

However, it wasn't just some officials in the Scottish Executive who agreed there should be a wider public choice of legal representation & access to the courts, as you can see from the following letter from the Director General of the Office of Fair Trading, John Vickers who took the exact opposite view of the then Lord Advocate Andrew Hardie - who would rather have had those parts of law repealed, which would have allowed wider available legal representation to the public.

Director General of the OFT, Mr John Vickers welcomes the implementation of Sections 25-29 of the Law Reform Misc Provisions Act 1990 - bringing a wider choice of access to legal representation and the courts, because as we can see - this is actually the case already in England - so, why keep Scotland in the dark ages again and maintain such monopolistic restrictions on the public's right of access to legal representation when those in England & Wales can secure the services of those other than solicitors & advocates for their legal work ?

Simply for the benefit of the Scottish legal profession's pocket perhaps ? Many feel this to be the case, and all that I have experienced to this date with regard to matters involving the legal profession in Scotland, tells me so. After all - it's all about money, isn't it ? and who gets it and who is allowed access to legal representation and what cases are actually allowed by the legal profession into court.

The remainder of the published disclosure reads as a rather indecisive position from the Scottish Executive, but one could ask - where are all the minutes of correspondence with the Law Society of Scotland and members of the legal profession who had an interest in leaving out implementation of Sections 25-29 ?

There are allegations such meetings did take place .. and such correspondence relating to & involving the views of the legal professions, did exist ... but curiously, none of this material has surfaced in the published disclosure, leading one to believe as many expected, the worst offending information would be withheld from public view.

You may question my comment on that, but inevitably, when the Scottish Executive discuss legal issues or legislation, the opinion of the Law Society of Scotland, or indeed, Law Society officials who work for the Scottish Executive as consultants is usually sought ... and in such a case as reforming access to legal representation and the courts, it is very difficult to believe the Executive, and Scottish Office before it, did not discuss, or meet with representatives of the legal profession to discuss these reforms .. which have of course been held back, many would say, on the orders of the legal profession itself.

Noticeably also in the published disclosure on this matter, is the lack of any documentation pre 1997 .. and I would have to take personal issue with that one myself, as a recent disclosure to me from the Executive included many documents which had accumulated many years before 1997, when the Scottish Office still existed.

Personally I would have to wonder why such documentation which would inevitably identify conservative politicians of the pre 1997 Government, and possibly members of the legal profession themselves, have been withheld, since Labour usually enjoy blaming the former Tory Government for just about everything under the sun .... suspicions abound then but my conclusion is this is not an honest disclosure, and I leave you all to make your own conclusions as to the honesty of what has been published.

Finally, there is an interesting remark contained in one of the documents which should give us all food for thought : "As there is an inherent awkwardness in decisions by government ministers not to commence legislative provisions enacted by parliament" .. a sobering thought for us all to keep in our minds .... with tales of awkward Ministers, and perhaps even awkward Lord Advocates ... is it not time to remedy the sins of the past and give the public a decent, transparent, honest and independently regulated legal profession ?