Voting on 5th May ? Keep in mind Scotland's Justice system remains far too dishonest, far too "Victorian", for independence from the UK

In case you didn't notice, there is an election in Scotland tomorrow, May 5 2011. If you are eligible to vote, it is your privilege, right & duty to do so, no matter how cynical or critical you are of our politicians, the justice system, Scotland's economy or even if you have a beef with the coalition Government at Westminster. However, as you are probably here to read topics of justice, rather than politics, there are some things you may wish to take into account before casting your vote ...

The short version of what I am about to say is “If you are here looking for advice on who to vote for, vote for a party other than those leading the polls so at least there’s a chance of the winners being held to account, and reigned in on any daft, crazy policies which will ultimately do Scotland a great deal of harm.” Remember, Annabel isn’t so bad after all, and unlike some this time around, she does make a lot of sense.

Now, the dreaded long version. One thing which has been glaringly obvious over the past four years since 2007, and indeed much longer than that, probably going back to the 're-imagined' Scottish Parliament of 1999, is that our beloved Scottish justice system is simply not up to the mark, not up to any real level of honesty, in fact, perhaps our beloved Scottish justice system is up to far too much dishonesty to merit & justify Scotland's independence from the rest of the UK. I mean, really, what use to Scots is independence if the justice system is bent ? None, as far as I can see, and as we know, the justice system has more bends in it than a corkscrew hazel tree.

Individuals and entire groups or classes of people have been discriminated or prejudiced against at the hands of the Scottish justice system, some even thrown in jail for crimes they did not commit, others persecuted by the very legal system itself for daring to criticise it, stand up to it, take issue with their own circumstances by demanding a fair hearing, and there are of course, even those who have suffered at the hands of the legal profession itself, who have used the law & courts as a weapon to deny anyone they do not like, access to justice. It happened yesterday, it will happen today, and it will happen tomorrow.

While the arguments & excuses still rage over the now famous Cadder v HMA ruling at the Supreme Court in London in October 2010, you only need to look back to the Cadder case and what happened to understand that the Government of the day in Scotland, in this case, the SNP, and indeed all previous administrations believed it was right for anyone arrested by Police to be questioned without a lawyer present. Good for a quick guilty verdict of course, saves a lot of detective work and of course a lot of money along the way for the likes of the Legal Aid Board.

Amazingly while such a highly dubious arrangement of interrogating suspects has not been practised in the rest of the UK, and indeed quite a few countries around the world for many years (some jurisdictions would call such interrogation without a lawyer "unconstitutional"), no one in the Scottish legal establishment bothered to raise it as a case until the European Court ruled in Salduz v Turkey and made the law as it now stands.

Did a Scottish court react to this change in European Law first, considering there must surely have been a few outstanding incidents where people were denied access to a lawyer while being held by the authorities ? No. After the European ruling, it took a court based in England, the UK's Supreme Court to rule on the Cadder case, and decide Scots, like everyone else in the rest of the UK and many other jurisdictions, had the right to a lawyer being present while being interrogated by the authorities.

Take it from me, Scotland's Court of Session would never have done the same. Indeed, this is exactly why the Cadder case ended up in the Supreme Court in London, because the Court of Session thought it was fine (and I dare say would like it still to be fine) to hold someone, whether guilty or not, and get an admission without the right to having a lawyer present. Easy money for the judges, the prosecution team, and someone put away with a protracted press release touting yet another "successful prosecution" and triumph for the authorities. Great, until someone realises the wrong person is behind bars.

If the Supreme Court had not ruled as it did, as Scots, we would still not have the right to a lawyer being present during interrogation, and the courts would be fine with it, but of course Cadder and its outcome goes much further than that, sending a shot across the bows of Scotland's antique justice system where the right to a fair hearing, the right to legal representation, or even the right to have funding for legal representation all appear to be a right too far those in the legal establishment who sometimes feel it is in the interests of the justice system to deny justice to certain individuals or cases.

If we were independent, you can kiss goodbye to the Supreme Court in London. If not immediately, certainly when it issues another controversial ruling requiring Justice-Secretary-for-Life Kenny MacAskill to change the law. You might also kiss goodbye to certain parts or maybe all of European Commission Human Rights Legislation (ECHR) which any future independent Scottish Government may begin to find 'inconvenient' to its management, or as we have seen in the past four years, lack of management of Scotland's justice system.

For another comparison of recent events in the English justice system compared to our own, look at the death of Ian Tomlinson, who, a jury in London yesterday decided had been "unlawfully killed" by the actions of a Police Officer. Does anyone really think a Sheriff presiding over a Fatal Accident Inquiry in Scotland would have came to such a decision in a similar case had some Policeman did the same north of the border ? Fat Chance, and we all know it. The bereaved family would be fighting for justice for years, and they themselves would probably end up being victimised by the legal system for daring to take issue with it.

Look around the Scottish justice system and you will see a litany of miscarriages of justice, where for instance, the say so of dubious witnesses or even Police Officers themselves have contributed to guilty verdicts and long sentences of 'the so-obviously guilty', only to be found later the investigation was compromised, perhaps even evidence was falsified, and those dubious witnesses lied through their teeth. Result : Someone ends up being freed after 12 years in jail for a crime they didn't commit and spends the rest of their life trying to clear their name while politicians sit back, promise much yet do little, and all the while the court, the judges, the legal system carrys on regardless.

How about the Lockerbie case and the long running controversy over the Lockerbie bomber Abdelbaset Al-Megrahi's conviction & release. Despite all the calls for independent inquiries, calls for, & half hearted attempts at the release of documents to answer the many inconsistencies in the case, nothing has changed other than the fact Mr Megrahi was released back to Libya on compassionate grounds by Justice Secretary Kenny MacAskill, so conveniently avoiding any further progress in Mr Megrahi's appeal at the Court of Appeal in Edinburgh, where the gritted teeth of the judges (one looked like he had bruxism) was much more obvious to most who saw the spectacle rather than any hope the court would turn its attention to matters at hand and quash a verdict which many around the world question. Last time I checked, this farce happened under an SNP administration.

How about Legal Aid ? If you really need it, do you think you might really get it ? It appears if the Scottish Legal Aid Board don't like the look of your face, or someone, perhaps a someone of very high standing or position in the legal system puts in a bad word for you, perhaps accompanied by a long poisoned pen letter saying why you shouldn't get legal aid, you don't get it. No legal aid for you, therefore no access to a lawyer and no access to justice.

Yet over the past four years, certain lawyers as I previously reported, have been claiming hundreds of thousands of pounds of legal aid for themselves, collectively, millions of pounds, yet many of their clients never really had access to justice, and guess what ? the Scottish Government just let it happen. Yes, all those millions of pounds of legal aid, paid for by taxpayers, ended up lining the pockets of a few solicitors who were never prosecuted for one penny of misuse of public funds, rather than that legal aid going to those who really needed it, or to those lawyers who really do represent their clients.

How about the much heralded Scottish civil courts review by Lord Gill, the big "sea change" for our "Victorian" justice system which was supposed to give access to justice for all ? The Civil Courts Review has said much but achieved little under the SNP. Admittedly though, the same could well have been true no matter which political party was in power. Lord Gill's "groundbreaking" Civil Courts Review is now just another piece of history in the shattered landscape of Scotland's justice system, a review which itself is now being reviewed, and all the trappings of easier access to justice which many expected to come from it, are but a pipe dream.

Do you think independence might change all that ? No. The same people who still rave about independence did nothing about clearing up the justice system in the past four years and did nothing about giving justice to those who are denied it. These same people will do nothing to clear up Scotland’s justice system. In fact, some of those raving about independence and taking back the oil wealth for Scotland, have in some cases I am privy to, actively blocked access to justice for many people denied it .. even some of their own constituents. To be sure, the only constant here in Scotland is, "Nothing Changes" when it comes to justice.

As an observation from someone who has seen many cases where the legal system has been used as a weapon against those who take it on, or those who dispute the legal establishment's line on all things justice, Scotland's justice system is probably worse off now than it was in 2007, and that's saying something. All of those people who said the system will change with a new party in power after 2007, where are they now ? Still fighting the same battles, still arguing over the finer points of detail and still knee deep in inquiries which will end up changing nothing.

It is certainly not my job to tell you who to vote for, but you must vote if you want to have a say in Scotland's political future. By this, I'm not telling you not to vote for the SNP, and I'm not telling you to vote Labour, Scottish Conservative or Liberal Democrat, or Independent, or Green or for any of the other parties out there, but I am asking you TO VOTE, and to ensure that consensus politics, fairness and even justice is delivered in this next Scottish Parliament.

Make the next five years Scotland's five years, make the next five years your five years to give all Scots a say in our country, access to justice, and the right to be heard against those groups & vested interests who regularly talk over or even interdict our expectations of reforms, jobs, financial security, justice and life for the better. If you want to be part of something positive, vote, and vote to make sure those who you elect are held accountable to you.

Law Society‘s ‘Manifesto for vested interests’ : Give public a little legal knowledge, ensure lawyers keep control of access to justice & courts

Law Society’s manifesto for lawyers says public should know more about the law, less about those sitting behind a lawyer’s desk. THE current, embattled President of the Law Society of Scotland, Jamie Millar who has been caught up in various arguments with leading west coast lawyers over the manipulative control freak nature of Scotland’s governing body for lawyers yesterday claimed Scots consumers should be given a wider knowledge of the law and how it works, although perhaps not enough knowledge so that consumers might end up choosing not to waste a few thousand pounds with a solicitor, and instead go it alone in courts on small scale legal disputes, thus depriving the legal profession of millions of pounds of lost business.

While making the usual appropriate pre-election noises to catch the attention of msps & political parties hoping to form the next Scottish Government, the Law Society is apparently, keen to keep its “Manifesto for 2011” (pdf) in the news, given the upcoming Holyrood elections in a couple of weeks time. The ‘manifesto’, or rather a ‘wish-list’ for the legal profession which covers issues such as :

1. Public knowledge and understanding of the legal system
2. Access to legal services, advice and representation
3. A civil justice system that meets the need of society
4. Good legislation
5. A sustainable economy

On the theme of Public knowledge and understanding of the legal system, the Law Society’s manifesto states it believes it is essential for the Scottish Government to ensure a greater public knowledge and understanding of the legal system. To this end, we propose that :

1. Changes should be made to the curriculum in secondary schools to include a course on law and the legal system and consideration given to the creation of a new secondary school law qualification
2. Each new act of the Scottish Parliament should be accompanied by an information leaflet as well as online information that properly explains the new law and its impact on the citizen

Perhaps unsurprisingly, the Law Society’s plans for making changes to the curriculum in Scotland’s secondary schools will ensure it and various business models attached to the Scottish legal profession will control how law and the legal system is taught in Scotland’s schools.

On the issue of Access to legal services, advice and representation, the Law Society claims in its manifesto that it believes that access to justice remains a key element of a free and fair society, yet in reality, the Law Society of Scotland holds world records for opposing many reforms to Scotland’s legal system, from the raising of small claims ceilings to class actions, and opposing the introduction of independent regulation of legal services even at the point of legal threats to the legislative process in the Scottish Parliament itself.

The Law Society also notably opposed the introduction of McKenzie Friends (lay assistants or courtroom helpers for unrepresented party litigants), which had been kept out of Scotland for some FORTY YEARS by the legal profession, who feared McKenzie Friends would chip away at lawyers dominance of access to the courts.

The Law Society’s proposals on Access to Justice as contained in their manifesto are a jumble of calls for additional reviews of reviews already carried out of Scotland’s antiquated civil justice system. The Society’s proposals, which can be described at best as a delaying game for introducing to Scotland many reforms already in place in England & Wales, state :

1. A review be undertaken into civil litigation costs and funding, similar to the work done by Lord Jackson in England and Wales
2. Any move to withdraw the right to have devolution minutes in criminal cases heard by the United Kingdom Supreme Court be rejected
3. A full audit is made of the compatibility of Scots criminal law with the European Convention on Human Rights, to ensure the mistakes that lead to the Cadder case cannot easily recur
4. Pro bono costs orders, similar to those allowed in England and Wales under s194 of the Legal Services Act 2007, should be introduced in Scotland
5. A review be undertaken into the current arrangements for public interest actions under the legal aid system

On the issue of a civil justice system that meets the need of society, or perhaps the Law Society means, “meets the needs of the Law Society rather than the public”, the Law Society says it believes that urgent changes are required to the civil justice system to make it more efficient and ensure it better meets the needs of a changing society. Yet the many urgent changes proposed by the Law Society have for years, been stifled from introduction by its own members and by Law Society lobbying against reforms.

1. The recommendations made by the review of civil courts by Lord Gill be taken forward, including the separation of civil and criminal cases and the appointment of District Judges to deal with summary crime
2. Specialised sheriffs are introduced and an increase in the threshold for Court of Session cases
3. Compulsory pre action protocols in civil cases be introduced
4. Consideration to be given for ways of incentivising pro bono schemes- perhaps through the tax system
5. A review of the administration of criminal cases and the impact it has generally on the administration of justice

The topic of “Good Legislation” again meets with similar calls for reviews, evaluations & calls for more consultation with the public & of course the legal profession over the passing of legislation. Obviously the Law Society might be worried some new legislation may slip through putting consumer rights ahead of the perceived priority rights of members of the Law Society of Scotland, something the Society could never allow to happen of course.

The Law Society’s proposals on “Good Legislation” are :

1. Parliament legislate only when it is necessary to modernise the law, to comply with decisions of the court or to conform to international obligations
2. A review be undertaken into the Scottish Parliament’s consultation processes, to ensure they match the aspirations of the Consultative Steering Group
3. An evaluation be made of the Scottish statutes and subordinate legislation passed since 1999 and the effectiveness of the legislation
4. A wide ranging review be undertaken of the areas of the law which are appropriate for consolidation and amendment
5. A programme of consolidation and codification be commenced (in those areas of the law identified as appropriate) and for this programme to begin in the first year of the new Parliament

And finally, to cap it all, the topic of “Sustainable Economy” puts the Law Society of Scotland and its members at the heart of (don't laugh) playing “an integral role in Scotland’s future economic success”, presumably by ripping off taxpayer funded legal aid and clients whenever possible.

The Law Society’s ‘Great Scottish rip-off’ proposals on a Sustainable Economy guided forward by the legal profession, state :

1. The Legal Services (Scotland) Act 2010 continues to be viewed as a business opportunity for Scottish firms and for the Scottish Government to press ahead with the necessary implementing regulations
2. Scotland be promoted as a place for international arbitration and for proposals for an international arbitration centre to be a priority
3. Existing powers of the Scottish Parliament and any new powers devolved through the Scotland Bill be used to maximise Scotland’s international competitiveness and economic growth
4. The legal profession be included by the Scottish Government and its agencies in its international economic and business promotion and prioritisation

Speaking in a Press Release to support the Law Society’s Manifesto for 2011, President of the Society, Jamie Millar said: "We heard about some of the practical difficulties this lack of understanding has caused, with the Family Law (Scotland) Act 2006 highlighted as one example of where there appeared to be a poor understanding of the impact of the law on co-habitants. A number of important Bills have been passed during last parliament, such as the including the Domestic Abuse (Scotland) Bill and the Patients Rights (Scotland) Bill. Both of these will have significant impact on citizens and it's important they are aware of the legislation, their rights and most importantly the help available to them.”

He continued : "From those we spoke to, there was a strong feeling that for the legal system to be effective there had to be a better understanding and awareness amongst the general public of how the law and justice system operates not least to try and grow a greater sense of citizenship in our society and our democracy. That is why we have called for this in our manifesto. Public education is not simply a job for government and our parliamentarians however. The Society, as well as the wider legal profession, has an important role to play in partnership with others to increase awareness. The Schools Law Web is one example of where stakeholders have recently come together to successfully provide legal education for schools."

Interestingly, the Law Society had earlier this year, interdicted attempts at the Scottish Parliament to open up the issue of legal education in Scotland’s schools, preventing open debate on suggestions that teachers would be better placed to teach law to kids in schools, rather than costly business models connected to the legal profession itself.

The Law Society’s Press Release went onto claim “A number of political parties have already talked about the importance of providing better information for the public and praised the Society's proposals for the introduction of legal education in secondary schools to build awareness of the justice system and installing citizenship from an early age.”

On this point, Mr Millar said: "Increasing the public's knowledge and understanding of the law would have significant benefits not just for the legal system, but for society as a whole. It is something that we will continue to push for during the election campaign and indeed once a new government is in place."

Sure thing Mr Millar. You could draft in crooked Scottish Borders solicitor Andrew Penman to teach pupils of the importance of falsifying file notes, how to deliberately deceive banks, and the Inland Revenue & mishandle wills, while also sending in John G O'Donnell & Catriona Macfarlane to teach honesty, along with the Legal Defence Union to teach to get out of being held to account for alleged misuse of taxpayer funded legal aid.

So, now readers know what Scotland would look like if it was run by the Law Society of Scotland.

The Law Society’s proposals have been rounded on by consumer groups as little more than an attempt to control the extent of, or even delay many of the reforms already suggested by the Scottish Civil Courts Review, undertaken by the Lord Justice Clerk, Lord Gill, who branded Scotland’s civil justice system a Victorian model unfit for purpose.

Readers can compare the Law Society of Scotland’s Manifesto for 2011with the more detailed & less vested-interest-dominated Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links : Volume 1 Chapter 1 – 9 , Volume 2 Chapter 10 – 15 & Synopsis

My coverage of the Civil Courts Review from its publication to the present, and the pace of reforms to civil justice in Scotland can be found here : Civil Courts Review - The story so far.