Judiciary & Courts Bill 'not worth the paper it's written on' as Scottish Parliament hears judges ask for 'a measure of trust'

The latest attempt at reforming Scotland's judiciary has been described as 'not worth the paper it's written on', by Lord McCluskey, formerly one of Scotland's senior judges, now a Labour peer in the House of Lords. The former Court of Session judge made the assertions during his testimony last week to the Scottish Parliament.

Lord McCluskey on judicial independence and proposed judicial reforms

As you know, I have criticised Lord McCluskey for his criticisms of proposed reforms to the legal profession and judicial system, but in this case, he is probably correct, and the Judiciary & Courts Bill itself, which is currently being heard by the Scottish Parliament's Justice Committee should be at the very least, cleaned up quite a bit, and quite a dose of accountability & transparency added to it.

For instance, perhaps a more open, transparent appointments system than simply leaving it to the Lord President to appoint judges, may bring a little more in terms of public confidence to Scotland's creaky self serving legal system, which doesn't seem to have any will to change with the times, and certainly not adhere to the public interest, rather, adhere to it's own ..

Lord Hamilton on judicial appointments - apply a measure of trust ...

The office of Lord President seems to enjoy far too many powers, lacking accountability to anyone as Lord Hamilton's comments seem to indicate, but that really sums up the whole of Scotland's legal system - lacking accountability to anyone but itself, which is why the rest of us are almost enslaved to it, even being denied access to justice when it suits the legal establishment to keep people out of the courts or even decide an individual be denied access to legal representation.

The Lord President, Lord Hamilton is involved in many appointments to the legal system, not just those of appointing members of the judiciary, and only recently his role, along with Justice Secretary Kenny MacAskill in refusing all applications made by non members of the Law Society of Scotland to gain rights of audience & representation under Sections 25-29 of the Law Reform (Misc Provisions) (Scotland) Act 1990 brought into question the motives of the current legal establishment for keeping the legal services market closed, as a business monopoly for its own.

Such is the determination of the current legal big wigs to protect their own business markets and money making model, a leaked letter from the Justice Secretary to the Cabinet Secretary for Finance, John Swinney, sought to mislead Mr Swinney on the wellbeing and status of applications made under Sections 25-29, all of which have so far been struck down by both the Lord President and Mr MacAskill, ensuring that no one practices law in Scotland unless they tow the Law Society line and obey those currently in charge. Open legal markets we do not have yet then ...

Justice Secretary Kenny MacAskill misleads Cabinet Colleague John Swinney on access to justice appointments ...

Revisiting Lord McCluskey's comments that the Judiciary & Courts Bill is not worth the paper it's printed on, this does bring back memories of former Scottish Legal Services Ombudsman Linda Costello Baker's comments against the Legal Profession & Legal Aid (Scotland) Act 2007, which she called "a mess", and of course as we now know, she was correct in her claims - the Scottish Legal Complaints Commission which has sprang from the LPLA Act, has been happily and easily co-opted by the Law Society of Scotland, and Ministerial appointments to the Commission itself have seen a bunch of lawyers and ex Law Society Committee members appointed to it, giving the air that it will be injustice as usual for anyone who has problems with a solicitor in Scotland.

You can read more about what former Legal Services Ombudsman Linda Costello Baker said on the half hearted attempt at reforming Scotland's legal profession via the LPLA Bill here : Last words from former Scottish Legal Services Ombudsman condemn the Scottish legal profession

My latest article on the demise of the LPLA Act and the Scottish Legal Complaints Commission before it has even begun its work can be viewed here : Funding argument over Scottish Legal Complaints Commission conceals lawyers interference in 'independent' complaints body

Do we call that reform ? I don't think so .... and no doubt the Judiciary & Courts Bill, if it does make it through the Justice Committee, may well go the same way as the LPLA Bill when it was at the Justice 2 Committee in 2006 ... voted through and passed into law .. then turned on its head to serve those it sought to reform, as any attempt at reforming Scotland's legal system seems to end up in the bucket.

Lord Hamilton on dealing with complaints against the judiciary ...

Maybe we should therefore listen to Lord McCluskey this time, and make sure that if the Judiciary & Courts Bill does go through, it serves a common purpose of transparency & accountability, not simply serving the judiciary itself..

I did notice one thing though ... a small detail I suppose, given the lack of standards within the Scottish Parliament itself ... anyway, Bill Aitken MSP is still the Convener of the Justice Committee and hearing this Judiciary & Courts Bill, but of course he was a JP himself, admittedly a JP isn't that high on the judicial ladder, however, as Annabel Goldie MSP as a solicitor herself and thus a member of the Law Society of Scotland, had to resign from the Justice 2 Committee in 2006 when it heard the LPLA Bill, I wonder what shifting standards policy the Scottish Tories are applying to themselves these days ? Obviously the conflict of interest one must be out of fashion now ...

You can read more about Annabel Goldie's resignation in 2006 here : Annabel Goldie does the right thing and resigns from Justice 2 Committee Convenership but it seems that having a JP in charge of hearings on judicial reform is, amazingly, not a conflict of interest ... those tories must be up to something then .. trying to make the bill fail perhaps ?

Here follows some coverage of the Parliamentary hearings from both the Herald and Scotsman.

Plan for Bill on judiciary ‘not worth paper it’s written on’

ROBBIE DINWOODIE, Chief Scottish Political Correspondent

The plan to enshrine in statute the independence of the judiciary, praised last week by Scotland's most senior judge, was described by a former solicitor-general yesterday as "not worth the paper it's written on".

Lord Hamilton, the Lord President told the Holyrood Justice Committee last week that the proposal in the Judiciary and Courts (Scotland) Bill "sends out the right message" against a day in the future when "conflicts could arise between the judiciary and the executive".

But yesterday retired judge and former law officer Lord McCluskey told the same committee: "The evidence you heard last week was, with respect, naive. The simple answer is it could never be more than symbolic, because if an unpleasant government came to power, then do you imagine it would not behave like the governments in Zimbabwe or Pakistan?

"If a party comes to power which does not respect democratic values then this is not worth the paper it is written on. Just as this Parliament could pass it a week on Monday, it could repeal it a week on Tuesday. This is actually worth nothing at all."

Lord McCluskey added: "Most countries in the world have a written constitution in which the independence of the judiciary is embedded in the constitution. Judicial independence lies in the hearts of men, not in constitutions and statutes of this kind, and I would rather it stayed there."

Calling the proposal "just a kind of gesture politics", he said: "The English needed it and so we slavishly copied the English. We have never had a statutory declaration in Scotland. We don't need to follow slavishly and plagiarise English legislation."

The bill would give the Lord President formal recognition as the head of the Scottish judiciary, making him responsible for matters such as the training, welfare and conduct of the judiciary. There would also be new procedures for appointing and disciplining judges and for dealing with public complaints.

The legislation also sets out proposals for modernising the machinery for sacking judges and sheriffs on the grounds of unfitness for office. They would be investigated by a tribunal chaired by a judge and containing a lay element.

Lord McCluskey said: "In my time there have been judges on the High Court bench who drank too much, who didn't do their homework, who didn't turn up. They were dealt with by the Lord President behind the scenes, and dealt with successfully, and that's the way it has to work."

On attracting a wider cross-section of society to the Bench, Lord McCluskey said: "I can see merit in the government, whether through the (judicial appointments) board or otherwise, taking steps to enable more people to acquire the skills that are needed to be a judge.

"But if I'm going to be operated on by a brain surgeon, I want the brain surgeon to be the best brain surgeon. I don't want him operating because he's black, Jewish, Catholic.

"It's the same with judges. It's the same kind of expertise which is required. I don't think affirmative action has any place in the selection of brain surgeons or High Court judges."

and now for the Scotsman's version, with a piece by Lord McCluskey himself first :

Why an 'English' bill won't fit Scottish justice system

By LORD McCLUSKEY

LORD McCLUSKEY shares his concerns about the judicial reform bill, which he believes is needlessly copying measures introduced south of the Border.

THE Scottish Parliament is about to devote much time and effort considering a Bill that is both unnecessary and misconceived. With the title, The Judiciary and Courts (Scotland) Bill, it is unlikely to generate mass demonstrations around Holyrood.

Bewigged lawyers will not mount barricades proclaiming that "The End is Nigh". MSPs will probably approach the Bill in the belief that there must be some point to it: after all, it has been adopted by an SNP-led administration, having originally been proposed, in February 2006, in a consultation paper endorsed by Cathy Jamieson and Lord Advocate Boyd, as part of "our programme for reforming Scotland's justice system". The word "our" was and remains a serious misdescription: let me explain where the ideas in this Bill really came from.

On 12 June 2003, there occurred one of the most astonishing events in English constitutional history: yes, I do mean "English".

Downing Street issued a press notice announcing the abolition of the office of Lord Chancellor. When, within hours, it was realised that could not be done by Prime Ministerial diktat – because the office of Lord Chancellor had existed for eight centuries, the office holder was the head of the English judiciary with responsibilities under 374 Acts of Parliament, and only he could appoint judges in England and Wales – a second notice hastily appeared saying that it was "intended" to abolish the office. It was too late to save the then Lord Chancellor, Lord Irvine of Lairg: he retired to the backbenches in ominous silence. Lord Falconer of Thoroton took his place on the Woolsack and in Cabinet, with a brand new title, "Secretary of State for Constitutional Affairs".

What had happened? What did it mean for Scotland? What had happened was that David Blunkett, the home secretary, proposed to insert into the new Asylum and Immigration Bill an "ouster" clause, preventing the courts hearing legal challenges to the decisions of tribunals in asylum or immigration applications. The Lord Chancellor, rightly, regarded that as a totally unacceptable departure from the rule of law. Both remained adamant; someone had to lose. It was the Lord Chancellor who lost. But it would have looked bad to announce that the Lord Chancellor had been defenestrated for defending the rule of law, so it was declared that the job itself had been abolished. As Lord Hoffmann said: "His removal had to be dressed in the robes of high constitutional principle."

What did it all mean for Scotland? Not much. For in Scotland the Lord Chancellor had no significant functions. We had our own head of the Scottish judiciary, the Lord President. Judges here were appointed by the First Minister, advised by a Judicial Appointments Board. For Scots, the Lord Chancellor was as relevant as the Captain of the Yeomen of the Guard.

In England, by contrast, eight centuries of tradition and legal structures had to be demolished and replaced in a hurry. So the new secretary of state set about creating a fresh constitutional structure for the English legal system. He entered private negotiations with the Lord Chief Justice of England and Wales. There was no place in these discussions for the Lord President, the First Minister, the Lord Advocate, the Advocate General, or Scottish Law Lords – not altogether surprisingly, because Scotland's legal system was not affected by the loss of the Lord Chancellor. The negotiations produced a "Concordat", providing new ways to carry out the Lord Chancellor's English functions. The new scheme was enacted in the Constitutional Reform Act, 2005.

The Lord Chief Justice was given a new title, "Head of the Judiciary of England and Wales". For appointing judges, England copied the Scottish system, creating a Judicial Appointments Commission. And, most interestingly, because the English regarded the Lord Chancellor as the guardian, within government, of the independence of the judiciary, it was decided that an entirely new guarantee of that independence was needed; so the new Act declared that government ministers had to respect the independence of the judiciary.

Of course, Scotland had no need of such an enactment, because the Lord Chancellor had no comparable role in relation to the independence of Scottish judges. Nor was any such role necessary, because Scottish public servants, both in government and judiciary, knew in their bones that ministers, like everyone else, had to respect, and invariably did respect, the independence of the judiciary. That fundamental tradition of respect had endured without challenge in Scotland for centuries without the need for a Lord Chancellor or a statutory declaration.

So what does the new Bill do? It slavishly copies the English Constitutional Reform Act, 2005. It creates a new title, "Head of the Scottish Judiciary" and confers it on the Lord President, along with numerous administrative functions that he has never had, or needed, and which will make unacceptable inroads on the time and energy he has for carrying out his real function, which is to safeguard and develop the unique character of Scots Law.

Next, it provides a "Guarantee of continued judicial independence". The word "continued" acknowledges that judicial independence already exists. And whose duty is it to provide that "guarantee"? Answer: the First Minister, other ministers including the Lord Advocate, and everyone responsible for the administration of justice.

Surely these public servants, especially the Lord Advocate, would be the first to declare that they already have such a duty at common law and that to neglect it by "seeking to influence particular judicial decisions" would be to pervert the course of justice.

As the "guarantee" imposes the duty only on those named, what about others, spouses, uncles and partners? What about Donald Trump? The simple point is that the duty created in the Bill already exists.

The Bill neither guarantees nor extends it. If anything, it limits it. It does not even create an offence of "influencing judicial decisions".

The Bill abounds in similar nonsenses, especially in relation to the appointment of judges. Let us hope that MSPs recognise its uniquely English features and have the courage to reject them.

Biggest wigs lining up to give evidence

By Jennifer Veitch

A PROCESSION of Scotland's biggest wigs lined up to give evidence at the Scottish Parliament's justice committee last week, convened by Bill Hamilton, including Lord Hamilton, the Lord President and Lord Justice-General, and Lord Osborne, one of our longest-serving judges.

Compared to a day in court, there was not much pomp or ceremony about the proceedings, with the judges looking almost ordinary in their suits and raincoats. But the fact that they were there at all, publicly discussing their role and the implications of the Judiciary and Courts (Scotland) Bill, was extraordinary enough.

There has been much criticism of attempts by the former Scottish Executive and the current Scottish Government to bring forward legislation to reform the judiciary.

There are others who are better placed – including Lord McCluskey on these pages today, to analyse the detail of the proposals in depth.

But, having had the opportunity to listen to sat Tuesday's oral evidence, it became obvious to me that there is much about the way the current system operates that could be improved.

The headline-grabbing issue was of course Lord Osborne's criticism of the procedures used by the Judicial Appointments Board in hiring judges, namely the absence of any formal checks as to the performance or competence of candidates.

For example, he said no-one would bother to contact a sheriff principal to ask whether a sheriff was the subject of any disciplinary proceedings or outstanding complaints.

Lord Osborne also poured scorn on a system that relied too heavily on performance at interview, which he regarded as an unreliable indicator of suitability for the bench.

While interviews are of course a necessary evil for most people seeking less elevated positions, clearly the Judicial Appointments Board should be able to provide much greater reassurance that such jobs are being filled on merit, and only after a robust assessment of a candidate's suitability.

The problem is that it also emerged that judges apparently want to have it both ways. Lord Hamilton said that he still needs to be able to give a "tap on the shoulder" to fill temporary judge positions.

Given the huge workload and degree of responsibility that judges must bear, is this fair on either the candidates stepping up to the plate or the public whose fates may rest on their decisions?

The absence of a formal complaints procedure for those who wish to raise concerns about the conduct of a judge – as opposed to using the appeals process to challenge a judicial decision – was also a concern.

Lord Hamilton was not able to give a figure as to the number of complaints that he receives about judges' conduct. No doubt when he produces the figures, as requested by the justice committee, it will emerge that he does not receive that many at all.

But, however small the number, there should be a far greater degree of openness and transparency about the rules and procedures involved. To leave everything to the discretion of the head of the judiciary, no matter how upstanding a fellow, seems too heavily weighted against the complainer.

The argument that introducing a formal complaints procedure would lead to more complaints simply does not hold water.

Surely there could be discretion to weed out vexatious or frivolous complaints? And, more importantly, there could also be an opportunity for the judiciary to learn from the few complaints that might actually be justified.

The Judiciary and Courts (Scotland) Bill may well be flawed, and the justice committee may well want to suggest amendments before the bill proceeds to the next stage in the parliament.

But the judges have already demonstrated that the issue at stake here is not whether change is necessary or desirable, but whether the Bill as drafted offers the best way of going about it.

Legal profession targets Scottish Executive to protect its business, demanding right of audience & death to public interest reforms

What's in the new minister's legal in-tray ? asks the Scotsman newspaper today .. and one would expect from that a whole host of issues relating to public interest and the well known general failure of Scottish Law to tackle anything transparently these days ... however, there's none of that as the Law edition of the Scotsman uses the article to lobby against change or even the very idea of reforms to the monopolistic business model of the Law Society of Scotland ... dictating who has access to justice and who does not.

The first 'question' - you may suppose, comes possibly from a lawyer, asking, or perhaps better put .. demanding clarification, that Kenny MacAskill, the new Justice Minister, "is a friend of the legal profession in Scotland and will give proper weight to representations from the Law Society of Scotland, and lawyers generally on matters of interest to the profession such as the Purchaser's Information Pack, and any further proposed reforms of the profession, and does he agree it is now time to give the profession a break from the incessant interference it has endured from Holyrood since its inception? ".

Instead of just being a friend to the legal profession, how about the idea that Kenny MacAskill might be a friend of everyone in Scotland ?

I have of course in mind, the rest of the country other than just the lawyers, who have an interest in the Justice system, including those victims who have suffered at the hands of the very same legal profession which now seeks ... or as things seem to be heading, demands Mr MacAskill's loyalty and attention on issues it sees fit - including of course, the issue of regulation of the legal profession, which everyone knows is the most cherished prize of Scottish lawyers - to regulate themselves and cover up complaint after complaint against crooked lawyers....

"giving proper weight to representations from the Law Society of Scotland, and lawyers generally on matters of interest to the profession" .. now, what does that entail I hear you ask ?

Well, if perhaps Mr MacAskill doesn't give proper weight to representations from the Law Society of Scotland and their merry band of crooks, perhaps they will stick him on a rendition flight to Drumsheugh Gardens for some electrical treatment ? or even worse, face another Court challenge threat from Douglas Mill, the Law Society Chief Executive who famously last year threatened the Executive and Parliament over the passage of the Legal Profession & Legal Aid (Scotland) Act 2007

"does he agree it is now time to give the profession a break from the incessant interference it has endured from Holyrood since its inception?..."

What interference from Holyrood exactly now is that ? ah yes .. perhaps 'Donald' is referring to David Mcletchie's Council of the Law Society of Scotland Bill - which was actually welcomed by David Preston, the then President of the Law Society in 2003 ,who said in the Law Society's own Press Release : "This will allow the Law Society of Scotland to modernise and improve its procedures and will implement some of the recommendations made in the Justice 1 Committee's report on regulation of the Scottish Legal profession published last year"

Perhaps not then ... as that Bill was actually steamrollered through the Scottish Parliament and thrust down the Executive's throat by the Law Society itself, along with support from several MSPs. The main sponsor of the "Council of the Law Society of Scotland Bill" was David McLetchie MSP (former Tory leader caught swindling the taxpayer over his Taxi expenses and certain conflicts of interest, and the Bill was also supported by Roseanna Cunningham, MSP, Donald Gorrie, MSP and Pauline McNeill, MSP ... perhaps MSPs to look out for in terms of their support of the legal profession then ?

Obvoiusly then 'Donald' from Glasgow is referring to the Legal Profession & Legal Aid (Scotland) Act 2007 ... which of course seeks to deprive Scotland's crooked legal profession from self regulating complaints against it's own members .. a right they have enjoyed for far too long which the Law Society has used to keep armies of crooked lawyers in practice while clients get ripped off,, victimised ,intimidated and ruined

Ex-Judge Lord McCluskey also joins in the questions to Mr MacAskill, this time signing his Lordship as being Edinburgh based, instead of at the House of Lords in Westminster as he did earlier in the year in the Scotsman in a a letter condemning the previous Scottish Executive for "disregarding expert opinion on the draft law reform bill" .. which roughly translated, comes out as 'disregarding dictates from the Judiciary on any changes which make it more accountable or transparent'

Lord McCluskey is of course no stranger to effectively making policy dictates to the Government, which today we are treated to as :

"Will the minister be sure to take the time to read the Report of the Royal Commission on the Legal Profession in Scotland (Chairman Lord Hughes) before taking any further decisions about changes in relation to the structures and institutions of the legal profession?

Lord McCluskey, Edinburgh "

Why not just come out and say it, your Lordship ... the Judiciary doesn't want any change to the way it operates - accountable only to itself and of course, the Judiciary does not want any change to the way lawyers make their money or how the Law Society of Scotland has incessantly fiddled complaints against crooked lawyers, because of course, Judges are lawyers themselves, members of the same Law Society of Scotland .. some of whom go on to be advocates, then sit on the bench, keeping their dark regulatory histories secret from the rest of us so they can advance to the ultimate positions unchecked ...

Are we back to Reforming Scotland's Judiciary at the point of a Judge's Gun again ? Lord McCluskey ? Does nothing change in the legal profession, even though the people of Scotland have voted for change ?

It's time to bring change to the way our legal profession has run the justice system and public access to it for all these decades - and if the new Justice Minister wants some ideas on issues to look at, how about subjects like these :

How about tackling the issue of lay member recruitment for all these self regulatory bodies such as the Law Society, where the same people staff regulatory committees of many different professions & public bodies, making it an industry for themselves while consumers suffer constant injustice as lay members sit by & do nothing

How about reviewing & compensating the victims of injustice by the legal profession itself ? there are ideas, such as my own Petition PE1033 to review the legal profession's sins of the past and properly review, investigate and compensate those ruined by crooked lawyers who have been allowed to go on practicing as lawyers, even ruin a few more clients in the process

Also, there is the issue of small claims, and why the legal profession has lobbied to keep it low for so long - to make sure the public have to use a lawyer to recover anything more than £750 .. and of course, spend a lot more than £750 using a lawyer to do it.

There needs to be a new culture of oversight, accountability and transparency at bodies such as the Scottish Criminal Cases Review Committee, where serious injustice to people in the Courts does not always get a fair hearing.

The Crown Office, that well known ogre of incompetence, cover up & injustice also awaits significant reform as it seems to excel in issues of corruption itself , covering up cases involving it's own staff, fellow members of the legal profession, and victimising anyone who takes issue with its actings ...

How about an inquiry into why Sections 25-29 of the Law Reform (Misc Provisions) Act 1990 which were designed to open up access to justice and the legal services market, were held back by lobbying from the Law Society of Scotland & Faculty of Advocates because of course opening up access to legal services would affect the profits of lawyers & advocates .. and of course, that such an inquiry would look into why previous Scottish Executives acquiesced to the wishes of the legal profession in this restriction of public access to legal services which even former Lord Advocate Lord Hardie seemingly agreed with denying increased competition & public access to legal markets

Instead of just having ASBOs - the now well known Anti Social Behaviour Order, how about instituting an ACBO - an Anti Corruption Behaviour Order to tackle the likes of crooked lawyers and crooked businessmen out to fleece the public & taxpayer at every turn ?

It would be so nice to have Lord McCluskey's support, whether he bases himself in London or Edinburgh, on some of these issues instead of just badgering or fingering the Executive on issues of 'don't reform the legal profession or judiciary, or else' ... after all, shouldn't an ex-judge speak for all of us not just his colleagues on the bench or in the legal profession, in the interests of justice, fairness & our interests as the Scottish public, of course ?

Where lies the victims of injustice in your words of wisdom to our elected Government, Lord McCluskey ?

Here is the article from today's Scotsman:

http://thescotsman.scotsman.com/index.cfm?id=948582007

What's in the new minister's legal in-tray?

KENNY MACASKILL, the new cabinet secretary for justice, answers your questions.

WILL the minister confirm that, unlike the impression given by the previous regime, he is a friend of the legal profession in Scotland and will give proper weight to representations from the Law Society of Scotland, and lawyers generally, on matters of interest to the profession such as the Purchaser's Information Pack, and any further proposed reforms of the profession, and does he agree it is now time to give the profession a break from the incessant interference it has endured from Holyrood since its inception?

Donald, Glasgow

MACASKILL: Law is a vital part of Scottish history, identity and life. We live in a changing world and the legal profession must change with it. But I want to work with the profession to allow it to better serve Scotland as well as its members.

At present the government is in the process of implementing the Legal Profession and Legal Aid (Scotland) Act. Establishing the Scottish Legal Complaints Commission and getting it off to the best possible start is the priority. We are not proposing any further regulatory reform at the moment.

However, I also think it is wrong to see the profession as a single homogenous group. It is diverse and I need to take account of the range of views within it. I know there are different ideas about whether we should introduce alternative business structures. I want to listen seriously to everyone concerned before we make decisions.

With regard to the Purchaser's Information Pack, the legal profession has been involved throughout the development of the proposals. We are keen to work with all of the stakeholders as we take the proposals forward. The previous administration's intention was to introduce the Single Survey before the end of 2008. Ministers will consider the way forward for these proposals in light of the responses received from the consultation.

What do you see as the future for the antisocial behaviour legislation? Do you consider it is working effectively to eradicate neighbourhood crime in Scotland and, if not, what change do you think is necessary for it and the criminal justice system to attempt to achieve that objective?

Jane Dewar, Highlands

MACASKILL: First of all, I want to make clear that this government intends to build on many of the reforms of the last administration. The Antisocial Behaviour Act has now been in force for three years and in some areas is making a real difference to the quality of people's lives across Scotland. Many neighbourhoods have got some much-needed respite from antisocial actions as a result of closure orders, and penalty notices for noise nuisance have given thousands some well-deserved peace.

However, we also need to tackle the factors that cause so much of the low-level crime and antisocial behaviour that blight communities - particularly the three "D"s of drink, drugs, and deprivation. And we need to provide more positive things for young people to do, promoting good social behaviour as well as punishing the bad.

That's why now is an appropriate time to take a fresh look at the antisocial behaviour strategy to see where it can be strengthened and improved - and how we can get greater community involvement. Local agencies are responsible for promoting community safety and tackling antisocial behaviour at the local level. We plan to review how we fund them and monitor their performance to ensure continuing progress is made.

Hand in hand with that, we will also strengthen frontline policing to ensure neighbourhood crime is dealt with through the criminal justice system, wherever appropriate. The results of ongoing evaluations of antisocial behaviour orders and dispersal powers will feed into this wider review of our community safety strategy, which in turn will complement the wider programme of summary justice reform. In all of this, our aim will be to instil a culture of personal responsibility at the heart of safe, strong communities.

Will the minister be sure to take the time to read the Report of the Royal Commission on the Legal Profession in Scotland (Chairman Lord Hughes) before taking any further decisions about changes in relation to the structures and institutions of the legal profession?

Lord McCluskey, Edinburgh

MACASKILL: This government does not have a monopoly on good ideas. So we will look for fresh thinking and new approaches from across the country - as well as the widest range of research.

I will want to consider a range of sources, such as the report by the Research Working Group on the Legal Services Market in Scotland. The Hughes Commission dates back to 1980, and in some respects it has been overtaken by events. An example would be the extension of rights of audience to solicitor-advocates. The Royal Commission then recommended maintaining the status quo, but solicitor-advocates are now well-established and doing an excellent job. The Faculty of Advocates has shown it can cope with the extra competition. That does not mean there is not still plenty of material in the Royal Commission's report, which remains as relevant as ever.

The most important thing will be to have a proper informed debate about the future of our institutions and how best they can contribute to the success of the country. I will seek to listen to and work with individuals such as Lord McCluskey.

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."

Reforming Scotland's Judiciary at the point of a Judge's Gun

I'm beginning to wonder when the ghost of Roland Freisler is going to be dragged out by Scotlands desperate lawyers & judges, to defend the 'self-given' right of Scotland's legal fraternity to recommend, appoint & regulate its fellow members of the Judiciary .. such is the dictatorial way & lack of honesty with which the legal establishment protect their own privileges.

When one mentions the word reform, one expects a little more than what we usually get, and this is certainly the case with the proposals for reforming Scotland's antiquated Judiciary which you can view in pdf format at : Judiciary (Scotland) Bill

Don't expect things like, open transparent selection of Sheriffs & Judges ... no we won't get anything like that .. and you can forget a decent code of conduct on how those on the Bench are to behave in Court ... that would be like going back to ancient Rome & asking the lions not to eat those thrown into the Circus Maximus.

Why no real big changes then ? - because the Judiciary don't want change, that's why.

Unsurprisingly, the Lord President is being put in charge of most of the operation - this to throw off the notion there could be any 'political interference from Ministers & the Executive in issues of regulating & selecting the Judiciary, and also, particularly the issue of regulating conduct issues, which will see a Tribunal, chaired by a Judge and composed mostly of - yes you guessed it, fellow members of the legal profession, investigate the conduct of the Judiciary in terms of complaints, behaviour & other issues. There will be one lay member on this 'Tribunal' - I understand possible candidates include Judges pets, (excepting those which have more than four legs), and the deceased.

This Lord President is going to be a busy chap then .. because he's also been put in charge of appointments to the new Scottish Legal Complaints Commission, so we will have to be on the lookout for bent staff migrating from the Law Society of Scotland to the new SLCC, posing as those 'unrelated to the legal profession' .... and from a hot tip earlier this week, I understand the Law Society's plans for infiltrating the new SLCC are well underway ... which begs the question, will the Lord President be told to let the Law Society's chosen 'independent' investigators & staff through the gates on a nod & a wink ?

A quote from the Executive in the Scotsman article states : "The public expect a certain standard of conduct from the judiciary and we believe having a lay member on the tribunal would give the public greater confidence in the judicial system,"

Well, yes we do expect a certain standard of conduct from our Judges - but we haven't had that before now, have we ? .. and we certainly aren't likely to get it while the likes of Lord McCluskey and the rest of the legal profession have their way in protecting any of their colleagues in true crooked lawyer protects crooked lawyer fashion.

The Sheriffs Association oppose all this too of course, and no wonder, since all their members are former lawyers - some with quite disgraceful regulatory histories, all covered up by the Law Society of Scotland so they can progress to the Bench and be an even more powerful spokesperson for the legal profession.

Incidentally, the Sheriffs Association threatened the Justice 1 Committee/Parliament with Court action in 2001 if they went ahead with an investigation/review of Sheriffs & the Judiciary.

We also had these same protests from the Judiciary last year - well organised by the Law Society of Scotland & the rest of the legal profession, where McCluskey & the many more Chernenko types came out to threaten the public good & protest over any reforms to the way in which the Judiciary does its business ... claiming of course, it would breach their own 'independence' from Government and also the question of if being against the Judiciary's Human Rights to fiddle complaints against their colleagues came into it ...

Why then, are the Sheriffs & Judges so hell bent on protecting their extensive legal empire ?

Well, the fight certainly parallels the problems which the Legal Profession & Legal Aid (Scotland) Bill suffered, in terms of the Law Society motivating all its allies under it seems heavy payment, to defend their right to self-regulation & fiddle complaints against crooked lawyers.

Just about everyone, from FibDem Peers to University Professors, to escapees from Robert Mugabe were brought out to intimidate the Scottish Parliament on that one - capped by the act of Douglas Mill, Chief Executive of the Law Society of Scotland, threatening the Scottish Parliament with Court action on ECHR grounds if it didn't pass certain amendments from Law Society mouthpieces in Parliament such as Bill Aitken - who wanted to all but kill off the proposed increases in fines for crooked lawyers.

One of the main weaknesses of the Judiciary, is their past - what they got up to when they were lowly lawyers ... running around the Courts, representing clients, and doing what comes naturally to Scotlands army of solicitors .. and we all know what that is ...

How would you feel, if you knew that a lawyer who had embezzled your money, was being tried in front of a Sheriff, or Judge, who himself, had amassed a long list of client complaints during the time when he was a lawyer, some of those complaints relating to embezzlement, which were of course swept aside by colleagues at the Law Society of Scotland under the corrupt system of lawyer investigates lawyer.

If you were a 'pursuer' in such a case, against a crooked lawyer as I have written of above, you would be a bit upset, wouldn't you ? perhaps, you might wonder if there was a conflict of interest ? right ? YOu might even wonder why that Sheriff had actually got his job ?

How about this ....

A Sheriff tries a rapist - or maybe sex offenders, yet has been implicated by his own wife in charges of alleged rape, which the local keystone cops refused to investigate because of the Sheriff's position & connections ?

Just think of the havoc that one could cause ... lawyers would be able to heave that Sheriff off the Bench in hearing any such case immediately .. oh but wait a second there .. it's happened .. and the lawyers did nothing .. just why was that now ? Want me to name the case ?

Yes, the issue of 'regulatory histories' has to be one of the main weaknesses of the Judiciary in terms of their service as a lawyer, but conveniently, there is no need for a disclosure of said regulatory history to the Executive prior to a Sheriff being appointed, soo one gets to know what some of those up on the bench have been up to in the past.

I suspect if someone was brave enough to do the story in the press, there might just have to be a few early retirements ...... however, given the way the Scotsman has swung in the legal debate, I think it may well be up to us bloggers & 'resistance members' to dish the dirt on some of those wigs up there which really shouldn't be running our political system - because we don't elect them.

If Lord McCluskey is so concerned with the public good, and Justice, and clearing up the sins of his colleagues ? I wonder if he would sign my petition to the Scottish Parliament ? PE1033 awaits you, Lord McCluskey in it's e-petition format .. show your true colours and support a review of the conduct of your legal profession colleagues against members of the public ... oh wait .. perhaps not .. there might just be a few lawyers among the list of cases of injustice which have been 'elevated to the Bench' ... I wonder indeed how that one is going to be answered !

Articles from the Herald newspaper & Scotsman to follow - good thing we have the Herald, everyone .. for that more impartial view on things in the legal world.

http://www.theherald.co.uk/politics/news/display.var.1193631.0.0.php

Ministers bow to pressure over judicial reforms
DOUGLAS FRASER, Scottish Political Editor February 15 2007

Ministers have bowed to pressure from lawyers over judicial reform, promising statutory protection for judges' independence.

The executive further accepts that Scotland's top judge, who is to take charge of the entire judiciary including sheriffs, should also have some say - so far unspecified - in the running of courts.

The executive has also limited the amount of interference that ministers are allowed to have in the decisions of the judicial appointments board, only getting involved in "procedural matters". But they will retain the power to appoint its members.

That remains a major concern for lawyers, who fear that any such ministerial appointments run the risk of political interference in the choice of those appointed to the bench, and also in strengthened powers to dismiss judges and sheriffs on the grounds of unfitness for office.

Their fears were one of the reasons why the Judiciary (Scotland) Bill was withdrawn from the legislative timetable. A revised version was published yesterday, for the incoming administration to take on after the May elections.

It is part of the raft of justice reforms, including High Court and summary court reforms, with a review announced this week of the civil courts as well.

The executive wants Lord Hamilton, as Lord President of the Court of Session, to take charge of a more streamlined and managed judicial administration, but had planned to keep the Scottish Courts Service in civil service hands, answerable to ministers. Since the original plans were withdrawn last autumn, the executive has moved ground on that, under pressure from Lord Hamilton, who has argued he cannot manage the judiciary while having no formal role in the Courts Service.

The proposals set out yesterday by Justice Minister Cathy Jamieson include the power of a tribunal, chaired by a judge and with at least one lay member, to investigate the case for dismissing another judge or a sheriff. The lay member is intended to increase public confidence in the judicial system. It would be for parliament to vote on the recommendation of the tribunal. That change was opposed by the Sheriffs' Association, which argued for no change in the present system, which sees two senior judges investigating a complaint.

A further change from the proposals published last year is that the plans for a statutory judges' council, to gather the collective view of those on the bench, have been dropped. Instead, Lord Hamilton is setting up a non-statutory council.

http://thescotsman.scotsman.com/scotland.cfm?id=243882007

Executive plans judicial revamp
RHIANNON EDWARD

SCOTLAND'S most senior judge is to be put in overall charge of the judicial system under draft legislation published by the Executive yesterday.

The Judiciary (Scotland) Bill would also modernise the machinery for sacking judges and sheriffs on the grounds of unfitness for office.

Under the proposals, they would be investigated by a tribunal chaired by a judge and containing a lay element.

"The public expect a certain standard of conduct from the judiciary and we believe having a lay member on the tribunal would give the public greater confidence in the judicial system," said the Executive.

This tribunal would make a recommendation to ministers and an order would ultimately be made by parliament.

The change was opposed by the Sheriff's Association, which argued for no change in the present system - under which investigation is carried out not by a tribunal but by two senior judges.

Scotland's current senior judge is Lord Hamilton, the Lord President of the Court of Se ssion.

The proposals have no chance of being passed before the May election but the justice minister, Cathy Jamieson, said they provided "options for action" by a future administration.

The reforms include a statutory guarantee of judicial independence, putting the judicial appointments board on a statutory footing, and giving the Lord President a new role as head of a unified Scottish judiciary.

... and finally, if you can stomach more ... Lord McCluskey's letter in today's Scotsman.

http://thescotsman.scotsman.com/letters.cfm?id=252502007

Scottish Executive disregarding expert opinion on the draft law reform bill

I was more dismayed than surprised by the announcement that the Scottish Executive has published the draft bill to "reform" the relationship between the judiciary and the Executive.

The main proposals contained in it were published last year under the title, "Strengthening Judicial Independence". Although only 90 days were allowed for the so-called consultation, the people who know and understand the system in Scotland strongly condemned most of the changes. The grounds for condemnation, contained in the published responses, are too numerous and detailed to repeat here. I shall try to outline them.

Many of them disagreed absolutely with the pretence that the new proposals are intended to "strengthen" judicial independence.

First of all, it doesn't need strengthening; it has a centuries-old tradition of strong independence.

Secondly, does anyone really imagine that ministers honestly want to make judges more independent? On the contrary, ministers on both sides of the Border are for ever criticising judges. Ministers want to exercise pressure on judges, and seek to do so by changing the machinery for appointing, dismissing or promoting judges: that is the machinery for removing independence by threatening administrative sanctions, including dismissal.

Thirdly, the new arrangements will be expensive, time-wasting and bureaucratic.

Fourthly, they are designed to turn leading judges into administrators, acting jointly with civil servants.

Fifthly, these proposals ignore not only the views of those who have been in the courts daily for decades but also the carefully considered views of the Royal Commission that sat for several years under the chairmanship of Lord Hughes. Many other criticisms have been advanced, and are being ignored by the Executive.

The political tactic is clear. The Executive publishes the bill now, in the run-up to the elections in May; it contains the original, much-criticised, proposals but ignores the criticisms. If returned to power in May, ministers will claim they have the support of the electorate for the provisions in the bill. In truth, not one voter in a thousand will have read the proposals or seen the bill. Few would have the knowledge or experience to grasp their true character or effect. Fewer still will have heard the views of the critics of the bill. But ministers will then claim that the bill has somehow gained democratic support and will ride roughshod over the considered objections.

The late John Smith took the first devolution bill through the Commons. I was privileged to play a considerable role in the relevant debates in the House of Lords. The 1978 Act carefully preserved the judiciary and the law officers from ill-considered initiatives by the devolved administration. The 1998 act unfortunately abandoned that concept. It saddens me to see that this administration is determined to disregard the wisdom of those who have real experience of how the justice system should be administered and to act in this fashion to bring the judiciary to heel.

JOHN (LORD) McCLUSKEY, House of Lords, London

Scottish legal profession campaigns against open debate in Scottish Parliament on independent regulation of complaints against lawyers.

Just what is it, the Scottish legal profession fears so much about losing control of complaints against their members ?

Has the level of control freakery reached such a fever pitch over at the Law Society of Scotland, they must even talk of 'opening their wrists & lying in a warm bath' (as Law Society Chief Executive Douglas Mill laughably said in the Scotsman on 15 August) rather than letting control of complaints against colleagues go to a new independent body proposed in the forthcoming LPLA Bill ?

Is it such a bad thing to give the public such rights & expectations as transparency, honesty, and accountability in their dealings with lawyers ?

The latest twist in the legal profession's spin machine tactics against the prospect of independent regulation appears in today's Scotsman, with now, the appearance of Lord McCluskey, being reported by the Scotsman newspaper in the following terms: "Lord McCluskey said there had been a lack of serious consultation over the plans and politicians had yet to "grasp the essence of what it is all about".

Well, Lord McCluskey, it's nice to see your comments on this issue, but do you remember when I, Peter Cherbi, from Jedburgh, wrote to you at the Court of Session in October 1994, over what Borders Solicitor Andrew Penman of Stormonth Darling Solciitors, Kelso, did to my family, plundering my dead father's assets for his own benefit.. and that the Law Society was sitting around doing nothing ?

I remember, because I have the letter - and I have your short, if to the point, response - which, was, admittedly, all you could have said at the time.

I would argue, your Lordship, with respect, that it is not the Executive or the Parliament who have yet to grasp the essence of what it is all about ... it is the legal profession - your colleagues, who have yet to grasp the basic concepts of honesty, transparency, and accountability to us, their clients.

What is it that your colleagues over at the Law Society of Scotland, the Faculty of Advocates, or even, the serving members of the Judiciary, fear, about independent regulation ?

I don't think it is anything to do with so called fears of political interference ... it is all to do with losing control over one of the most important aspects of how one conducts business.

If that business has become reliant on ripping off clients for unjustified fees, keeping client complaints down, embezzling clients funds, taking posession of clients properties for personal gain, ruining lives, livelihoods, and businesses of clients, making sure that compensation payments are never made, or delayed for decades .. then, it is certainly time to lose control of it.

Lord McCluskey, could you condone a complaints system which sees thousands of complaints made a year against solicitors, with many not even being cagegorised as complaints, just to keep the statistics down ? or cases against crooked solicitors and financial claims for damages running for up to 22 years in one case quoted to the Scottish Parliament's Justice 2 Committee .., just because the Law Society of Scotland has a policy of undermining client complaints from the very start ? Is that good, or bad ? I think bad .. but you are welcome to differ ...

How do you feel, your Lordship, about a firm of lawyers filing false reports with the Benefits Agency, Inland Revenue, and Police, against a client & their family in order to intimidate them into withdrawing their complaints to the Law Society ? Maybe even that same firm intervening to find out a client's medical history & records, to use against them, again to intimidate them into withdrawing complaints against quite obviously crooked lawyers ?

If this happened to you, Lord McCluskey, I'm sure you would have something to say about it ... well, it happened to me, and it happened to many others .. so, if you want to gain more experience of the effects of your colleagues actions against their clients, clients whose lives, livelihoods, businesses, personal health & wealth, and even their families, have been totally ruined, then I would suggest, respectively, you make visits to these people. Want some names ?

Reading the Scotsman article further, I am honestly amazed at the former Zimbabwe Law Society President Mr Sternford Moyo's pro-Law Society of Scotland comments, given the experiences of people I know who have suffered at the hands of lawyers and the Law Society of Scotland.

Is the Law Society of Scotland so desperate to maintain control over it's crooked membership, it is willing to compare the loss of regulating the complaints process to the suffering of the people of Zimbabwe under Robert Mugabe ?

Surely, that is an affront to the suffering of a nation's peoples under it's present 'Government', an affront to the very fundamentals of Human Rights itself... or does such a comparison promoted by the Law Society of Scotland and it's allies really show the extent of the Scottish legal profession's attempt at dictatorship itself - in trying to thwart a debate in an elected Parliament on the subject of it's workings ?

Mr Moyo, with all respect to your position, I have news for you - the legal profession in Scotland is run just as badly by it's leaders, as Zimbabwe is run by Robert Mugabe - and there are plenty within the ranks of the Law Society of Scotland, who feel just as intimidated by Douglas Mill & his colleagues, as you were in your position as President of the Law Society of Zinbabwe by Robert Mugabe.

It's odd, but I've had this same conversation with some lawyers here in Scotland, at one of the regional Bar Associations, who have compared the Law Society's bosses with Mr Mugabe himself .. you know .. giving Ministers expensive cars to keep their support, intimidating the opposition (and clients) to maintain power ... printing money to dig their way out of hyperinflation (sort of like the Law Society dishing out accreditation awards to those who might threaten it).

A good comparison, don't you think ?

Getting back to the debate later today at the Scottish Parliament, I hope the party whips and Parliamentary staff haven't been doing too much in the way of interference with msps in what they are going to say in the debate.

After all - remember, people, I have seen the levels of correspondence which msps receive from their constituents each year on problems with lawyers, the Law Society of Scotland, Faculty of Advocates, the Crown Office, etc ... and even copies of all the representations msps have written on behalf of their constituents to, the Law Society of Scotland, the Faculty of Advocates, the Scottish Executivce, the Crown Office, etc ... so, not one msp can deny they haven't been involved in this matter previously.

I often wondered though, as I perused the volumes of correspondence between MSPs & MPs to the Scottish Executive (and it's various earlier forms) on the subject of constituents difficulties with complaints against lawyers and how the Law Society of Scotland had treated clients ... just why all those representations for all those different constituents, seemed to be .. well .. similar .. none of them really mentioning something like .. "What on earth is going on with the Law Society as I have 53 constituents now writing to me on the same thing and I hear my colleagues have similar or higher levels of cases" ..

A bit strange really ... but you know .. to me, well, I'm just a lay person you know, just an ordinary guy really .. but if people wrote to me as their elected representative, on an issue .. and well, there were many more letters from people on the same type of issue, I would put 2 & 2 together, to make 4, write a stinker of a letter and say - "I have 43 people writing to me on the same matter .. get something done about this, while I offer all of them the chance to contact ach other to compare their cases while I draw up a proposal for legislation" .. but as we know .. no one wants that, do they ... people talking to each other comparing similar problems with lawyers so something could be done about it .. that's why it's taken 16 years plus for some people to get something done ...

Peter Cherbi's message to the Scottish Parliament :

Please do something today for the people of Scotland - your constituents, and don't be intimidated by the selfish Scottish legal profession, no matter what dirty tricks they pull out of their hats against the LPLA Bill.

Give the public the right to expect transparency, honesty, and accountability in their dealings with the legal profession, and vote for progress in the LPLA Bill - but be careful of attempts at crooked amendments such as those proposed by ICAS - which are definitely against the spirit of independent regulation in the LPLA Bill as it stands.

Read on for the article from today's Scotsman, link at : http://thescotsman.scotsman.com/scotland.cfm?id=1319742006

Former judges join call to reject legal reforms

MICHAEL HOWIE HOME AFFAIRS CORRESPONDENT

SENIOR figures from Scotland's legal profession yesterday mounted an unprecedented attack on ministerial plans to overhaul the way complaints against lawyers are handled, branding them a threat to the independence of the law and an attack on democracy itself.

Former judges joined the leaders of the Law Society of Scotland and the Faculty of Advocates in an effort to persuade MSPs to reject some of the proposals.

The Scottish Parliament will today debate the Legal Profession and Legal Aid Bill, which proposes to strip the Law Society of the authority to deal with "service" complaints against solicitors, creating a new Scottish Legal Complaints Commission whose members would be appointed by ministers.

The idea of ministerial appointment was savaged by a series of high-profile legal figures at the Balancing the Scales of Justice debate in Edinburgh yesterday.

Among those who spoke out were the former High Court judge Lord McCluskey; Sir David Edward, ex-European Court of Justice judge; advocate and former MSP Duncan Hamilton; and Roy Martin, QC, dean of the faculty of advocates.

They were joined by Sternford Moyo, a former president of the Law Society of Zimbabwe, who was arrested by Robert Mugabe's regime and accused of "subversive" activities. He said a new legal complaints quango controlled by ministers threatened to undermine the democratic principle of legal and judicial independence, providing legitimacy to dictators who sought to control the rule of law.

Mr Moyo said the legal profession ensured "good governance, accountability, observance of human rights and prevention of abuse of power", which demanded it "be free from any control by the Executive". He added that undemocratic regimes would look to learn lessons from legal reforms in Scotland and elsewhere.
Lord McCluskey said there had been a lack of serious consultation over the plans and politicians had yet to "grasp the essence of what it is all about". Duncan Hamilton added: "The legal profession is driven by the public interest but the Executive does not accept that."

But Hugh Henry, the deputy justice minister, insisted the body would safeguard the interests of clients. He added: "We are absolutely committed to the principle of a fully independent legal profession. We also want to see a legal profession which is properly regulated. Consumers need to be assured their complaints will be handled impartially and efficiently."

and the Herald version - probably better, since it exposes the fact that the event which Lord McCluskey was speaking at, was actually timed to put pressure on the msps in the debate on the LPLA legislation in the Parliament today, link from the Herald at : http://www.theherald.co.uk/news/69610.html

Lawyers condemn reform
DOUGLAS FRASER, Scottish Political Editor September 07 2006

The legal profession yesterday stepped up its onslaught against Scottish Executive plans to impose a complaints system on solicitors and reform the judiciary.

Some of the most respected figures in the legal establishment lined up to attack executive policy as a threat to the independence of Scots lawyers and judges.

A Law Society of Scotland event, timed yesterday to put pressure on MSPs ahead of a crucial vote on the issue today at Holyrood, featured a warning from one of Zimbabwe's top lawyers about the risks of letting the state interfere in the profession.

Sternford Moyo, former president of the country's law society who was arrested and intimidated by Robert Mugabe's regime and had his firm's offices raided, said the legislation would set an example on undermining lawyers' independence that would be welcomed by dictators in developing nations such as Mugabe's.

The theme was picked up by Lord McCluskey, a former Labour solicitor-general, who attacked the executive for "rushing into ill-considered, badly-evidenced, misconceived legislation…bringing the judiciary and the legal profession under an unprecedented degree of government control". He added: "The rule of law should not be treated in this cavalier and arrogant fashion."

Growing tensions between the profession and the executive were also stepped up with the release of figures yesterday that showed the large gap between legal aid payments for individuals and the amount the executive is willing to pay lawyers to do its own work.

The highest hourly rate for legal aid, paid to the best qualified solicitor, is £76, exactly the same as the lowest rate paid to a para-legal or trainee for carrying out work for ministers. The top rate for executive work is £180 per hour, and the bottom rate for legal aid goes as low as £21.

The profession complains that the legal aid system, also being reformed, has fallen so far behind that it is leaving "advice deserts" for individuals in need of legal help, where law firms refuse to take on work, particularly on civil cases.

Kenny MacAskill, the SNP's justice spokesman, secured the figures in a question to ministers, and said they showed there was "a two-tier justice system" for ministers and for poorer individuals.

The main thrust of the profession's complaints against current executive policy is that the new complaints commission will be controlled by ministers. They can appoint and dismiss members, while the bill would allow them to instruct the commission and set its funding.

A separate proposal is to unify the judicial system, putting the Lord President in charge of all High Court judges, sheriffs, and justices. A civil service department is to help him, but lawyers believe that will link the system too closely to government.

Yesterday's debate turned into more of a rally as lawyers expressed their exasperation that they had not been listened to. All MSPs and law officers were invited, but only two opposition MSPs turned up.

There were calls for an upper house at Holyrood to balance the parliament when committees fail to scrutinise issues adequately, and there was a clash with the head of the Scottish Consumer Council, who said claims of threatening legal in-dependence were exaggerated.

Professor Sir John Edward, a former judge in the European Court of Justice, said there was extreme concern and dismay about the judicial reform plans, and accused ministers of inappropriate and "slavish imitation" of English reform.

Lord McCluskey warned that the Lord Advocate, Lord Boyd, has lost his independence by sitting in the Scottish cabinet.