MSPs hear Scots Party Litigants face Supreme Court civil appeal lock-out due to "window dressing"measures from Faculty of Advocates & lack of help from top judge

MSPs hear of little help for Scots Party Litigants in Supreme Court appeals. MEMBERS of the Scottish Parliament's Petitions Committee were told earlier this week that measures put in place by the Faculty of Advocates to help Party Litigants raise appeals in civil court cases to the UK Supreme Court – measures which require signatures from two counsel for a Party Litigant’s appeal to proceed, are mere “window dressing” and only serve to further obstruct or block access to justice for people who do not have legal representation.

Kathie Mclean Toremar, who took her Petition 1504 to the Scottish Parliament’s Petitions Committee this week in a quest to obtain reform to the way in which the legal profession make life difficult for unrepresented party litigants to appeal against decisions taken in the Court of Session, detailed the difficulties faced by those who do not have expensive legal teams in place to represent their cases before Scotland's judiciary. The petitioner also revealed to MSPs that the average length of case for the majority of party litigants in Scotland is a shocking 11 years.

And it emerged in answers to further questions from MSPs that Scotland’s top judge Lord President Lord Brian Gill - famed for his own sharp criticism of the Civil Justice system and his Scottish Civil Courts Review can only manage to direct people with no legal representation or experience of the law to a web page, rather than provide help or answers to why no party litigant has ever been able to approach the Supreme Court after enduring lengthy, bruising encounters in front of Scotland’s highest court, the Court of Session.

Mrs Mclean Toremar, who has been through a prolonged & arduous case in front of Scotland’s unsympathetic judiciary told an amazed Petitions Committee: “I approached Lord Gill, but he simply sent a letter from his secretary telling me to go www.supremecourt.com. I did not ask for legal advice and I did not ask any unusual questions. I just asked about paragraph 1.8, but he would not answer me.”

In an attempt to secure a fair hearing for her own legal case, Mrs Mclean Toremar also revealed to MSPs she had tried thirty eight different solicitors, all recommended by the Law Society of Scotland in an attempt to secure a fair hearing for an appeal against a decision. However, every single solicitor out of the 38 refused to take the case on, citing reasons  including “conflict of interests, lack of  funding, too many hurdles, and, last but not least, the fact that the pursuer in the appeal has been a party litigant, in relation to which the legalities are a minefield that a solicitor would be reluctant to enter.”

Prior to questions from MSPs in relation to the petition, the Petitions Committee Deputy Convener Chic Brodie criticised the way in which the Scots legal establishment fails to deliver information or help for those who need access to the courts.

Mr Brodie said:  “I will begin with a general point, which does not relate only to the Public Petitions Committee. I am very concerned about how hard it is to get information out of the legal system in Scotland. Given that a number  of approaches have been made and that hardly any replies have been received, I wonder what on earth is going on and how our legal system is being administered. People should at least have the decency to provide a reply, whether we are talking about the Lord President, the cabinet secretary or whoever. I leave that point lying.”

In response to questions from members of the Petitions Committee, Mrs Mclean Toremar also referred to a response from the Faculty of Advocates to the consultation on the Courts Reform (Scotland) Bill which is soon to be heard by the Scottish Parliament’s Justice Committee. In that response, the Faculty of Advocates said it found Party Litigants “Burdensome” and confirmed it was aware party litigants have difficulty with obtaining signatures from counsel.

MSPs also heard evidence from the petitioner, that so far, not one party litigant from Scotland has ever been granted the right to appeal to the Supreme Court, so they cannot fulfil the criteria for making an appeal to the European Court of Human Rights.

The Scottish Government have recognised there is an issue in how party litigants appeals are dealt with in Scotland and have included ‘some’ reforms in the forthcoming Courts Reform (Scotland) Bill. However the current proposals on offer from the Scottish Government do not go far enough and apparently do not even mention the phrase “party litigant” and in response to questions from David Stewart, the Convener of the Petitions Committee, Mrs Mclean Toremar said the proposals from the Scottish Government would not solve the problems raised in her petition.

Video footage and the official report from Tuesday’s Petitions Committee discussion of Petition 1504 by Kathie Mclean Toremar :

Petition PE1504 by Kathie Mclean Toremar on party litigants civil appeals to the Supreme Court

Supreme Court (Civil Appeals) (PE1504)

The Convener:  The next item of business is consideration of one new petition, PE1504, by Kathie Mclean-Toremar, on party litigant civil appeals to the Supreme Court. As previously agreed by the committee, we will take evidence from the petitioner. Members have a  note by the clerk, the Scottish Parliament information centre briefing and the petition.

I welcome the petitioner and Gordon Mclean to the meeting. I invite Ms Mclean-Toremar to make a short presentation of approximately five minutes to set the context for  the petition, after which I will start with some questions and then my colleagues will ask additional questions.

Kathie Mclean-Toremar:  Good morning, ladies and gentlemen. I hope that you understand that the petition is about not just me but a gross imbalance in the law regarding all persons in Scotland who find themselves being a party litigant—that is, someone who has to represent themselves in court. We are lucky enough to live in a democratic society in which that is possible.

As I said in my petition,  in “A guide to bringing a case to The Supreme Court”, paragraph 1.8, which is headed “Appeals from the Court of Session in Scotland”, states that, although “permission to appeal is not required from an interlocutor of the Inner House of the Court of Session”, the appeal “must be signed by two Scottish counsel”.

That is where the flaw is.

As we all know, a party litigant is a person who, for whatever reason, such as a lack of funds for a solicitor, represents themselves. Nowadays, people are more likely  to represent themselves because of a lack of funding for solicitors from the Scottish Legal Aid Board. I myself have seen solicitors demonstrating about the issue. We will have a situation in which more and more people will be forced to represent themselves in court.

When a party litigant represents themselves in the Court of Session, loses their case, then appeals and loses that appeal—I learned through a freedom of information request that there are no statistics on how many party litigants have won their  case in the Court of Session—they are also then denied the right to appeal to the Supreme Court, which, according to the European Court of Human Rights, is deemed to be the highest court in the United Kingdom. On the Court’s website, which is www.echr.coe.int, frequently asked question 26 states that an individual must have taken their case to the highest court in the land before they can put it to the European Court of Human Rights.

The fact is that people are being denied their human rights; in this case, the relevant article is article 6, on equality of arms. Everyone deserves a fair hearing. We should be on a level playing field, not divided between the have and have-nots in society. Party litigants lose their right to appeal because of paragraph 1.8, which states that two Scottish counsel must sign the appeal, while the experience of all party litigants is that they cannot approach Scottish counsel in their chambers or in the Court of Session, and certainly not at the advocates library. The only way to  approach counsel is through a solicitor, which is where the even larger difficulty lies.

The solicitor has only 42 days to read a case that might have been going on for many years. They then need to speak to two counsel and have them read the case, print their opinion and apply for an appeal to the Supreme Court. Although in theory that process can happen, in practice it cannot and does not happen. Legal aid has to be applied for, which takes time. If legal aid is granted, the solicitor can then contact counsel—I said “if” it is granted; the committee should please take into consideration the cuts to legal aid.

The real problem is that solicitors are wary of taking on a case at such a late stage. As part of my research, I obtained a list of 38 solicitors via Law Society of Scotland recommendations.

Having telephoned all 38 with the scenario I have just described, I found that not one of them was willing to take on such a Herculean task. The reasons cited by many of them included conflict of interests, lack of  funding, too many hurdles, and, last but not least, the fact that the pursuer in the appeal has been a party litigant, in relation to which the legalities are a minefield that a solicitor would be reluctant to enter. It is not the solicitors’ fault; it is  the fault of paragraph 1.8, which denies party litigants their rights.

In paragraph 6 of its response to the consultation on the Courts Reform (Scotland) Bill, the Faculty of Advocates states that it knows that party litigants have difficulty with obtaining signatures from counsel. It goes on to say:“It has also become increasingly burdensome. The number of such cases has been increasing: between 2005 and 2010 the Faculty received five such requests from party litigants”.

That is five requests in five years. “Burdensome” is defined as heavy, onerous, troublesome and hard to deal with, so we can deduce that the faculty does not think highly of party litigants I am still waiting for a response from the Faculty of Advocates to my freedom of information request about how many party litigants it has helped to appeal to the Supreme Court, but I have also contacted the Supreme Court and I already know the answer. Not one party litigant from Scotland has ever been granted the right to appeal to the Supreme Court, so they cannot fulfil the criteria for making an appeal to the European Court of Human Rights.

Paragraph 1.8 denies a party litigant the right to appeal to the Supreme Court and to appeal to the European Court of Human Rights. That is a blatant human rights issue. The theory is there but, as I say, the practicalities deny a party litigant the right of appeal. Everyone must be treated equally, with fairness and respect. The current situation contradicts the Human Rights Act 1998 severely.

This is a flaw in Scottish justice. The system that is in place is not fit for purpose. It places insurmountable barriers in the way of the party litigant. That happens in any civil case, and civil appeals show that party litigants have fewer rights. The Scottish Government  has clearly recognised that there is a problem. Mr MacAskill mentions the issue in the Courts Reform (Scotland) Bill, but nowhere do the two words “party litigant” appear in the bill.

I believe that my petition could serve to support any further planned measures to bring relief in such cases, so I feel that it is in the interests of justice and of all party litigants for the committee to consider it.

The Convener: Thank you very much. If Mr Mclean would like to respond to any of the questions that we ask,  I encourage him to catch my eye.You have probably dealt with my first question, but I will ask it anyway, just for the record. You mentioned the two-counsel rule, which seems to be crucial. Are you arguing that article 6 of the European convention on human rights, which is on the right to a fair hearing, is being breached?

Kathie Mclean-Toremar:  I am saying that a party litigant does not have the right to approach counsel. That is a breach of equality of arms, for which article 6 provides, so people’s human rights are being breached. A party litigant cannot approach counsel directly—they must go through a solicitor.

The Convener:  My second question is about future legislation. You mentioned the Government’s Courts Reform (Scotland) Bill, which will be considered by the Justice Committee, and you hinted at what it could do. My understanding is that that bill will take away the two-counsel rule and that it will be for the inner house to decide whether there are sufficient grounds for someone to go to the Supreme Court. What is your view of that assessment? If the bill went through, would it solve your problem?

Kathie Mclean-Toremar:  No, it would not. The bill, which I believe was introduced on 6 February, does not mention party litigants, and I think that that  is a gross problem. The phrase “party litigant” does not appear in the bill. Will the bill provide a big umbrella, under which everyone will fit, or will it provide for people who are legally represented? That is where the problem lies. If someone is not legally represented, how will they be able to go to the inner house, which is what it is proposed will happen?

The Convener:  So you are arguing that the bill would not solve your problem.

Kathie Mclean-Toremar:  It would not cover party litigants.

The Convener: Okay—thank you for that.

Chic Brodie:  I will begin with a general point, which does not relate only to the Public Petitions Committee. I am very concerned about how hard it is to get information out of the legal system in Scotland. Given that a number  of approaches have been made and that hardly any replies have been received, I wonder what on earth is going on and how our legal system is being administered. People should at least have the decency to provide a reply, whether we are talking about the Lord President, the cabinet secretary or whoever. I leave that point lying.

What is your view of the proposed change, whereby someone would be able to approach the Faculty of Advocates, rather than having to have two solicitors approve their appeal to the inner house?

Kathie Mclean-Toremar:  At the moment, a party litigant has to get two signatures from Scottish counsel. That is where the problem lies. It is not possible to approach counsel, to go to the Court of Session to speak to counsel or to phone up counsel. They will have nothing whatever to do with you. It is necessary to go to a solicitor, who will go on your behalf to counsel.

Chic Brodie:  I am sorry to interrupt, but in the petition you say:“only a solicitor practising in Edinburgh can contact a counsel.”

Kathie Mclean-Toremar:  Yes, that is another problem.

Chic Brodie: Where is the evidence for that?

Kathie Mclean-Toremar:  I believe that a solicitor from Glasgow submitted a petition a few months ago on the problem whereby a Glasgow solicitor has to instruct an Edinburgh solicitor in order to be able to go to the Court of Session. That is my understanding—that is the way in which the situation was explained to me. I went to a Glasgow solicitor who told me that. A solicitor cannot do that unless they have what I think is called the right of audience.

Chic Brodie:  If that is the case, I find it most disconcerting. I have one last question. I know that we cannot go into the detail of your case, but do you agree that there has to be some filtering out of the number of cases in which the inner house might be approached, other than through the two solicitor rule? Have you any idea how that process might be performed?

Kathie Mclean-Toremar:  We do not know how long it will take for the Courts Reform (Scotland) Bill to go through. It could be changed so that a party litigant who had gone through the Court of Session, appealed and lost their appeal would have the right to go directly to counsel.

It might be argued that there is already a free legal services unit. You can go to various agencies and ask them to make an application to the FLSU, which is run by certain advocates on a pro bono basis, but the unit can give people only three days. Many cases have taken years to go through the Court of Session, so three days is not enough. It takes more than three days to read the case and do research. The FLSU does not cover a party litigant in that regard.

Angus MacDonald:  I appreciate your bringing these anomalies to the Parliament’s attention. It seems unfair that  party litigants can approach counsel only through a solicitor, which defeats the purpose of the individual having the right to represent themselves.

I agree with you that the 42-day period for filing a notice of appeal seems excessively short. You did not really touch on that in your preamble. It has been noted that the Courts Reform (Scotland) Bill seeks to introduce a provision that requires litigants to seek leave to appeal, rather than there being a requirement for two counsel to certify appeals. I understand that, in the bill, there is no intention to increase the 42-day period for filing a notice of appeal, although I could be wrong. Clearly you would wish that period to be increased.

Kathie Mclean-Toremar: Yes, if possible.

The Convener: As you probably know, we get a briefing from our information service—SPICe—on every single petition that is lodged. Our briefing states:“the Faculty of Advocates suggests that party litigants can approach the Faculty directly for assistance in this regard.”Do you have any comments on that?

Kathie Mclean-Toremar:  I have tried—and I know of three other party litigants who have tried—to address the Faculty of Advocates. The faculty does not reply.I sent a freedom of information request on the matter eight weeks ago, but I have not had a reply. As it says in its response to the Government consultation, the Faculty of Advocates finds party litigants “burdensome”. That is shocking. That means that we are not on a level playing field where everyone has the right to represent themselves. The system does not work.

The Convener:  Is it reasonable to say that there is an outstanding issue around the Faculty of Advocates? We have picked up that it is offering to provide help and advice, but you are saying that you have found it difficult to get a response.

Kathie Mclean-Toremar:  It does not respond. That is where the free legal services unit comes in, which the Faculty of Advocates runs on a pro bono basis. The problem is that you have to find an agency, which could be Strathclyde  law clinic or a citizens advice bureau, to make the application to the free legal services unit at the advocates library, and somebody will read it and say yes or no. However, as you can have only three days from the unit, and they take perhaps one day to read it and one day to do a bit of research, when will they stand in court and do the proof? There is no time. I hate to say this, but I feel that the Faculty of Advocates is just doing some window dressing and not addressing the problem. It does not respond to freedom of information requests.

I made an FOI request to the Supreme Court in London, which told me that not one party litigant from Scotland has ever been able to appeal. Why?

The Convener:  I am not putting words in the mouth of our information service, but the general comments that we get through it are that the two advocates or counsel that you refer to will not sign an appeal unless they feel that there is a valid issue in law for the case to go to the next stage. That is the general legal position. Do you accept that that summarises where we are in the law?

Kathie Mclean-Toremar:  Yes. The average length of case for the majority of party litigants is 11 years. I think that they have a point in law; otherwise, they would not have kept going for more than 11 years and their cases would have been thrown out of court. It is up to the party litigant to put forward the points of law to the advocate, which is not done lightly. However, they are not paying for the advocate or counsel, and I think that money really speaks.

The Convener:  Mr McLean, do you have anything to add at this point?

Gordon Mclean: No.

Kathie Mclean-Toremar:  Might I add something?

The Convener: Sure.

Kathie Mclean-Toremar:  I approached Lord Gill, but he simply sent a letter from his secretary telling me to go www.supremecourt.com. I did not ask for legal advice and I did not ask any unusual questions. I just asked about paragraph 1.8, but he would not answer me. Everybody whom I have asked in the legal system has told me to go to paragraph 1.8.

The Convener:  Thank you for that. We have come to the end of questions, but we want you to stay while we look at how to deal with your petition.

You have raised a lot of very interesting points and shown that there is real frustration among party  litigants, particularly about getting to the Supreme Court and using ECHR. Normally, the committee wants to go as far as we can with each petition. There are some exceptions, however, such as where another committee is looking at legislation that is relevant to the petition. As you will know, the Justice Committee is looking at the Courts Reform (Scotland) Bill. It would therefore make a lot of sense for us to refer the petition to that committee so that it can consider whether the bill could help you.

My advice to the committee is that we refer the petition as soon as possible to the Justice Committee so that, as part of its consideration of the bill, it can look at the issues raised by the petitioner. I think that the petition raises quite a lot of questions, and I would be pleased if our colleagues in the Justice Committee could have a look at it. However, that is a matter for committee members to decide. What are members’ views?

Chic Brodie:  I agree with your view. However, sometimes we forget why we are  here, which is to respond to people who have genuine issues. I fail to understand why the powers that be are not responding, at least with some degree of courtesy, to the petitioner. Personally, I find it wholly unacceptable that information is not being provided—there is not even the courtesy of a letter. I hope that the message that we send from here, whether formally or not, is that we are here to represent petitioners, whether they are right or wrong, and that they should be treated with courtesy, no matter what part of Government is involved. Frankly, in my opinion, some of the answers—indeed, the lack of answers—that have been received in this case are wholly unacceptable.

The Convener:  Mr Brodie makes an excellent point. Do members agree with the recommendation that we refer the petition to the Justice Committee? Members indicated agreement.

The Convener:  As the petitioners will have heard, we are keen to ensure that the committee focusing on the bill also focuses on your petition. We will therefore arrange for it to be transferred immediately to the Justice Committee, which will keep you up to date with progress. The petition is still active in the Scottish Parliament; it is simply being referred to the appropriate committee that is considering the legislation.

Kathie Mclean-Toremar:  When I went to my local MSP, Michael Russell, he informed me that he had spoken to Kenny MacAskill, who said that the law will be changed when Scotland gets independence.

The Convener: Right.

Kathie Mclean-Toremar:  I just wanted to put that on the record.

The Convener: I have to say that that is slightly beyond my pay grade. Mr Russell is entitled to his comments but, as far as what the Public Petitions Committee can do—

Jackson Carlaw:  I am sorry, convener, but I must ask the witness whether that comment was communicated to her in writing.

Kathie Mclean-Toremar:  Well, my husband was there—

Jackson Carlaw:  But do you have written confirmation of it?

Kathie Mclean-Toremar: No.

Jackson Carlaw:  It would be very interesting if you were able to obtain that commitment in writing and shared it with the committee.

The Convener: Thank you, Mr Carlaw.

As I have said, the petition is still active and will be referred to our colleagues on the Justice Committee, who will consider it alongside the bill.I thank the petitioners for coming along and raising a number of very worrying points. I hope that the Justice Committee will be able to look at the matter in more detail.I suspend the meeting for a minute to allow our witnesses to leave.

Gordon Mclean: Thank you.

Kathie Mclean-Toremar: Thank you very much for listening to us.

The Committee agreed to refer the petition, under Rule 15.6.2, to the Justice Committee as part of its scrutiny of the Courts Reform (Scotland) Bill.

UK Supreme Court backs Asbestos Pleural Plaques compensation in Scotland, defeating Insurance industry & lawyers who argued “Asbestos is good for you”

‘Triumph for progressive politics’ as UK Supreme Court defeats insurers challenge to Scots 2009 law allowing asbestos pleural plaques victims right to compensation.  IF A LAWYER stopped you in the street and said to you “Asbestos related Cancer is good for you” you may be inclined to think their clients (and the lawyer) have a vested interest in ending your life. Today, that very notion put to msps by Insurance industry lawyers at the Scottish Parliament in 2008 in a desperate effort to block compensation for Asbestos related illnesses was nowhere to be heard as judges at the UK’s Supreme Court DISMISSED the Insurance industry’s legal challenge against the Scottish Government’s Damages (Asbestos-related Conditions) (Scotland) Act 2009 which aims to ensure those who suffer from the Asbestos related condition of Pleural Plaques receive the compensation they are due.

The Supreme Court judges decided unanimously that the Scottish Parliament had acted within the scope of its powers when it passed the Damages (Asbestos-related Conditions) (Scotland) Act 2009, legislation that offered those who have pleural plaques the opportunity to claim compensation. The Act has been subject to lengthy legal challenge by a group of insurers who even used the Human Rights Act (ECHR) to argue the legislation passed by Holyrood which reinstated claims for Asbestos related pleural Plaques after the House of Lords sided with the Insurance industry over the Pleural Plaques compensation issue in 2007, was against the “Human Rights” of the insurance industry.

The full judgement from the Supreme Court can be downloaded here : Supreme Court Judgement in AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland) (pdf)

I reported on the insurance industry’s decision to challenge the decision at the UK’s Supreme Court in an earlier article here : Supreme Court to decide if Asbestos related Pleural Plaques ‘are good for you’ as Insurers challenge Scottish Govt & Holyrood's law making powers and in that earlier article, a Freedom of Information request by Diary of Injustice to the Scottish Government established the insurers legal challenge had forced a massive expenditure of £341,857.79 of public funds by the Scottish Government on lawyers legal fees defending against the Insurers, who have already lost two challenges against the new law at Scotland’s Court of Session. I trust the insurers will be forced to repay every penny to the public purse, and then some.

The Scottish Government issued a statement welcoming the Supreme Court’s decision to dismiss a legal challenge to a popular Act of the Scottish Parliament with Justice Secretary Kenny MacAskill urging the insurance companies to pay up to asbestos victims. The Minister said the failure of the legal case, brought by a group of insurers, was a "triumph for progressive politics" that would bring great comfort to workers that have developed pleural plaques, brought on by exposure to asbestos.

Scotland’s Justice Secretary Kenny MacAskill. Justice Secretary Kenny MacAskill said : "I warmly welcome this significant decision, not least for the sake of people with pleural plaques and all those who campaigned so vigorously to help them. It has always been our belief that the legislation is right in principle and right in law and I am pleased that it has been unequivocally upheld. The Scottish Government's Damages (Asbestos-related Conditions) (Scotland) Act was passed with overwhelming support in the Scottish Parliament, and today's decision is a triumph for the progressive politics that saw parties unite to do the right thing and help those that have developed pleural plaques as a result of negligent exposure to asbestos.

Mr MacAskill continued : "We firmly believe that people with this condition should be able to raise a claim for damages, and we are delighted that this decision has gone in their favour - a result that will surely bring them some comfort. It is our sincere hope that the insurers will now reflect carefully on the decisions reached by the Scottish Parliament, by both the Outer and Inner Houses of Scotland's Court of Session, and now by the UK's Supreme Court and settle those claims that have been stalled for so long."

Welcoming the Supreme Court ruling on pleural plaques Scottish Trades Union Congress (STUC) Deputy General Secretary Dave Moxham said : "This is a vindication of the heroic battle by the victims of pleural plaques for fair compensation as well as the work undertaken by MSPs of more than one political party to legislate for justice. The skill and expertise of Thompsons Solicitors has also been central to this victory. The insurance companies involved have now stretched and abused the boundaries of due diligence in throwing their resources at an increasingly desperate fight to deny responsibility and it is now time for them to shut up and pay up"

Nick Starling, director of general insurance and health for the Association of British Insurers, said in a statement after the ruling: "Insurers remain fully committed to continuing to pay compensation to people with asbestos-related conditions, such as mesothelioma The insurers brought this case because they believe that the Damages Act is fundamentally flawed in that it ignores overwhelming medical evidence that pleural plaques are symptomless, and the well-established legal principle that compensation is payable only when there is physical harm.We are very disappointed that the court has not found in our favour on this important principle of law. Insurers will now consider carefully this judgment and what it means for them."

Insurers legal team was headed by Richard Keen QC, Dean of the Faculty of Advocates. The ruling comes after a long & bitter fight through the Scottish courts from the insurers Avira, AXA Insurance, Zurich and the infamous Royal Sun Alliance (who also insure all Scottish solicitors via the Master Policy), and their lawyers Brodies LLP. Earlier, the insurers who were seeking to block the legislation at the Scottish Parliament, used lawyers from another Edinburgh law firm, Simpson & Marwick who told MSPs their understanding was “Pleural Plaques are good for you”. However, the Damages (Asbestos-related Conditions) (Scotland) Act 2009 was passed into law and the insurers then challenged the legislation through the Scottish Courts using a variety of Edinburgh law firms & even the Dean of the Faculty of Advocates himself Richard Keen QC. After legal action failed in Scotland, the insurers and their lawyers took the case to the UK Supreme Court on Human Rights grounds and finally today, lost their legal challenge.

Let us remember the depths of the arguments put before the Scottish Parliament to prevent Asbestos victims claiming compensation :

Representing the insurers argument, Dr Pamela Abernethy of Simpson & Marwick told the Scottish Parliament’s Justice Committee Pleural Plaques ‘are good for you’ (Click image or HERE to watch video)

Insurance companies put up stiff resistance to the legislation, a number of them backing up the notion Pleural Plaques & Asbestos are good for you (Click image or HERE to watch video)

 

Exposure to asbestos can result in the development of a number of conditions, including pleural plaques (i.e. scarring of the membranes around the lungs). This condition is generally asymptomatic, though it does indicate that asbestos fibres have lodged in the body and caused a physiological reaction. Medical evidence is that "people with pleural plaques are at risk of developing diffuse pleural thickening causing breathlessness, asbestosis of the lungs causing breathlessness, lung cancer which is usually fatal and mesothelioma, a cancer which can occur in the lining of the chest cavity or in the lining of the abdominal cavity which is almost invariably fatal, usually within 12 to 18 months of the first symptoms. People with pleural plaques who have been heavily exposed to asbestos at work have a risk of mesothelioma more than one thousand times greater than the general population.

From the 1980s onwards, where pleural plaques arose from negligent exposure to asbestos, Courts throughout the UK made compensation awards; those awards were paid by the negligent party or their insurer. On October 17, 2007, however, the House of Lords ruled in respect of a number of cases in England that asymptomatic pleural plaques do not give rise to a cause of action under the law of damages. The House of Lords ruling is not binding in Scotland, but would be considered highly persuasive by Scottish Courts.

In November 2007 the Scottish Government announced its intention to bring forward legislation to ensure that the House of Lords ruling would not have effect in Scotland. In June, 2008, the Scottish Government introduced the Damages (Asbestos-related Conditions) (Scotland) Bill. The Bill was passed in March 2009, got Royal Assent the following month, and came fully into force in June 2009.

The Outer House decision on judicial review was announced on January 8, 2010, which I reported here : Lord Emslie defeats legal challenge over pleural plaques as Insurers ‘big name’ legal team fail to overturn Holyrood’s Asbestos compensation law with the Inner House decision announced on April 12, 2011.

My previous coverage of the Damages (Asbestos-related  Conditions) (Scotland) Act 2009 can be found here : The Scottish Parliament, Asbestos, Pleural Plaques and a Supreme Court victory for the Scottish Government

So, the next time a lawyer tries to tell you “Asbestos is good for you” or “Cancer is good for you”, you know what to think of them, don't you

Supreme Court judge Lord Rodger who found Law Society lied over dishonesty claims in stitch-up of former solicitors ‘who championed underdog’, dies

Former Lord President who became Supreme Court judge, Lord Rodger dies after a short illness. LORD RODGER, the former Lord President of the Court of Session who found the Law Society lied over dishonesty claims in a famous case involving former Edinburgh solicitors Gordon & Maria Thomson who were hounded out the profession for taking too much legal aid business, and who went on to become a judge in the UK Supreme Court, itself recently involved in controversial rulings on Scottish Human Rights cases which have changed the face of Scotland’s notoriously corrupt, antiquated legal system, has died after a short illness, it has been announced.

Lord Alan Rodger studied at the University of Glasgow, graduating with an MA, and at the University's School of Law, taking an LLB. He became an advocate in 1974 and was Clerk of the Faculty of Advocates from 1976 to 1979. He was a Member of the Mental Welfare Commission for Scotland from 1981 to 1984, and was appointed Queen's Counsel in 1985.He was an Advocate Depute from 1985 to 1988 and was appointed Solicitor General for Scotland in 1989, being promoted to Lord Advocate in 1992, at which time he became a life peer as Lord Rodger of Earlsferry, of Earlsferry in the District of North East Fife, and was appointed to the Privy Council.

Lord Rodger was appointed a Senator of the College of Justice, a judge of the High Court of Justiciary and Court of Session, in 1995, and became Lord Justice General and Lord President in 1996. He was appointed a Lord of Appeal in Ordinary in 2001, upon the retirement of Lord Clyde. He and nine other Lords of Appeal in Ordinary became Justices of the Supreme Court upon that body's inauguration on 1 October 2009.

Among the many rulings Lord Rodger will be remembered for, is that of the famous case where former Edinburgh solicitors, Gordon & Maria Thomson, who were hounded out of the Scottish legal profession by establishment elements and the Law Society of Scotland for taking ‘too much’ of the legal aid business. In a ruling on a petition to the nobile officium, Lord Rodger, then the Lord President, along with Lords Coulsfield & Marnoch, found the Law Society of Scotland, who had rigged an investigation into the Thomsons, and subsequent hearings before the Scottish Solicitors Discipline Tribunal which struck off the Thomsons as solicitors, had not removed allegations of dishonesty which were part of the Law Society’s concerted effort to strike down the Thomson’s popular legal business. The ruling from Lord Rodger and his colleagues on the bench stated :

This petition to the nobile officium by Gordon Thomson and Maria Thomson comes before the court on a motion for a first order for service. Among those upon whom service is sought are the President and Council of the Law Society of Scotland. It appears, however, that a copy of the petition was faxed to the Law Society some days ago and in any event the existence of the petition was reported in the press. The Law Society were accordingly represented at the hearing by Mr. Macdonald, Q.C.

The petitioners were the subject of proceedings in the Solicitors Discipline Tribunal, the hearing in which took place over several days in 1994 and 1995. On 22 March the Fiscal and the petitioners reached a substantial measure of agreement and the proceedings were adjourned until 5 April 1995. After sundry procedure, the Tribunal issued an interlocutor on 7 April and on 8 June 1995 they issued their formal Findings which comprised seventeen numbered paragraphs. In due course the petitioners appealed to this court. Their appeal came before an Extra Division who allowed it and remitted the matter to the Tribunal. In the opinion delivered by Lord Prosser, in a passage which we do not repeat but which was based on the submissions made at the hearing of the appeal, the court indicated that they were not satisfied that all the allegations of personal dishonesty against the petitioners had been withdrawn. In the present petition the petitioners state that the position of the Fiscal at the original hearing before the Tribunal was, and the position of the Fiscal at the new hearing is, that all such allegations have been withdrawn. The petitioners therefore ask the court to exercise the nobile officium and inter alia: "to hold that the Opinion of the Court should be recalled and re-written omitting any imputation of personal dishonesty by either Petitioner and publicised accordingly...."

However great the powers of this court may be, we cannot rewrite history. Nor can any interlocutor recall the words of an opinion or unsay what the court has said in an opinion which has been issued. The petition is therefore self-evidently incompetent.

None the less, as the petitioners point out, the opinion of the court has been published on the Internet and elsewhere. If the Law Society's position is actually that the Fiscal at the original hearing withdrew the allegations of personal dishonesty and that the Society do not allege personal dishonesty, then it is proper that this state of affairs should be given equivalent publicity. In the course of the short hearing we accordingly asked Mr. Macdonald to clarify the position of the Law Society. He readily did so. Based on what he told us, for the avoidance of doubt, we record that the Law Society of Scotland agree that the findings of the Discipline Tribunal issued on 8 June 1995, so far as inferring personal dishonesty on the part of the petitioners, did not reflect the pleas tendered by the petitioners and accepted by the Fiscal and those findings should therefore not have been made by the Tribunal.

Former solicitors Gordon & Maria Thomson were targeted in a fit up by the Law Society of Scotland over their law business. Gordon and Maria Thomson were originally struck off in 1995 after a 16-day tribunal hearing over what many now see as widely fabricated allegations by the Law Society of Scotland of a "substantial catalogue" of professional misconduct. The couple had become widely known through television commercials which featured Mr Thomson in biking leathers, astride a Harley- Davidson motor cycle. They were judged by the Law Society to have been too hungry for fees and to have run their Edinburgh practice in a manner which allegedly brought the profession into disrepute. Their firm, Gordon Thomson & Co, operated from the Sighthill shopping centre in Edinburgh. It also had branch offices, dubbed "law cafes", in Methil and Glenrothes in Fife. In his advertising Thomson portrayed himself as a champion of the underdog, and clients were called "friends". His theme tune was Tina Turner's Simply The Best. The offices were run almost as drop-in centres where members of the public could go for a coffee and a talk with one of the staff. The Law Society condemned this as soliciting clients of other lawyers and thus decided to kill off their business, and practising certificates.

Unbeknown to myself at the time, a firm of Edinburgh solicitors who were representing me in the case of the crooked Scottish Borders solicitor, Andrew Penman, and my attempt to take the Law Society of Scotland to court, had been appointed to wind up the Thomson’s legal practice by the Law Society. One of the firm’s solicitors went onto confess the whole thing had been about money, because many Edinburgh law firms were anxious the Thomson’s were taking their business, and particularly the legal aid money which effectively subsidises some of Edinburgh's most noted, if most useless and sometimes most crooked, law firms.

Law Society’s Chief Executive Douglas Mill & Philip Yelland, head of Client Relations during the fit up of the Thomsons. It is worth noting that throughout the Law Society of Scotland’s determined pursuit of the Thomsons, its Chief Executive was Douglas Mill, who was forced to resign his position after video footage of a confrontation between Mill & the Scottish Government’s Finance Secretary John Swinney at a 2006 meeting of Holyrood’s Justice 2 Committee was published on the internet. It is also worth noting the same individuals who were wrapped up in the Thomson case, Mr Mill & Philip Yelland, the Law Society of Scotland’s Client Relations & Regulation Chief at the time of the Thomson case, were both also involved in the same highly personalised & bitter pursuit of myself, blocking all my attempts to take Andrew Penman, his law firm Stormonth Darling, the Master Policy,  and the Law Society of Scotland to the Court of Session.

Scotland’s serving & previous Lord Advocates issued their own tribute to Lord Rodger in a Press Release from the Crown Office :

Following the sad death of Alan Rodger, Lord Advocates past and present have paid tribute.

Speaking of Mr Rodger, Frank Mulholland QC, Dame Elish Angiolini QC and Lord Boyd of Duncansby QC issued a joint statement saying: "It is with great sadness that we have learnt of Alan Rodger's death. Those of us who have had the privilege of working with or appearing before him held him in the highest regard.”

"His sharp intellect allied to his humanity and humility made him one of the great Lord Advocate and Lord Presidents. Scotland's legal profession is poorer for his passing. He bore his illness with great courage and has left a legacy of significant jurisprudential thinking which will stand Scotland well for many years to come. Our thoughts are with his family at this sad time."

The Law Society of Scotland issued its own tribute to Lord Rodger

In tribute to Lord Rodger, Cameron Ritchie, President of the Law Society of Scotland said: "Lord Rodger was an eminent and distinguished figure within the Scottish legal profession. He held some of Scotland's most distinguished positions, including Lord Advocate and Lord President, where he demonstrated immense ability and intellect. "His more recent role as a member of the UK Supreme Court; one of only two Scottish Judges served to underline his considerable contribution, not only to the justice system but to society as a whole. Above all he was a great ambassador for the Scottish legal profession and someone who will be greatly missed."

Scotland’s First Minister Alex Salmond, who recently launched highly personalised attacks on the Supreme Court judges over their ruling in the Nat Fraser case, delivered his own commentary on Lord Rodger’s death, saying : “Lord Rodger made an outstanding contribution to public life in Scotland over many years both as a judge and as Lord Advocate. He was held in the highest regard by all those who worked with him in public service, and dedicated himself to the interests of justice during a long and hugely influential career."

Yet in early June, the First Minister and his Justice Secretary, Kenny MacAskill publicly criticised the Supreme Court & its judges, (two of whom were Scottish, Lord Hope and Lord Rodger, now deceased) of being part of a ”court in London that is made up of a majority of judges who do not know Scots Law, who may have visited here for the Edinburgh Festival”.

Mr MacAskill went on to threaten to withdraw funding for the Supreme Court, saying : “When I go to the Law Society I say that I will not routinely fund ambulance-chasing lawyers. It should be said that I am not going to pay for ambulance-chasing courts. As a Government we have to pay for the Supreme Court of the UK and I think they should recognise that we’ll pay for our fair share of what goes there. But I am not paying money that would come out of the police budget, or prison budget or community payback budget because they are routinely taking cases that we as a country do not think should be going there. He who pays the piper, as they say, calls the tune.”

Supreme Court to decide if Asbestos related Pleural Plaques ‘are good for you’ as Insurers challenge Scottish Govt & Holyrood's law making powers

Insurers challenge over asbestos compensation law may provoke new rift over Supreme Court powers say experts. A NEW RIFT between the Scottish Government & the UK Supreme Court over the extent of the London based court’s powers to affect Scottish cases & law making powers may come in the next few weeks (as reported in the Sunday Herald : Hammer of the Scots) if a ruling in the latest stage of the Insurers challenge against the Damages (Asbestos-related  Conditions) (Scotland) Act 2009, now before the Supreme Court, goes against the Scottish Parliament’s ‘honourably intended’ law to allow victims of asbestos contamination in Scotland who have developed the condition known as PLEURAL PLAQUES to receive compensation after a 2007 House of Lords ruling in the Insurance companies favour ended the right to compensation for pleural plaques across the UK.

The Insurance companies took issue with the Scottish Government’s introduction of legislation in the Scottish Parliament to reverse the House of Lords decision, lobbying against its passage through the Scottish Parliament and then unsuccessfully fighting to have it overturned in the Scottish Courts. This latest challenge by the Insurers to have the Damages (Asbestos-related  Conditions) (Scotland) Act 2009 overturned on Human Rights (ECHR) grounds or on common law grounds, asks the Supreme Court :

(1) Whether the Damages (Asbestos-related Conditions) (Scotland) Act 2009 (“the 2009 Act”) infringes the appellant insurance companies’ right under Article 1 of Protocol 1 of the European Convention on Human Rights and is thereby outwith the legislative competence of the Scottish Parliament by virtue of section 29(2)(d) of the Scotland Act 1998 (“the 1998 Act”);
(2) Whether the Court of Session as part of its supervisory jurisdiction may review and reduce legislation passed by the Scottish Parliament on grounds other than those set out in the 1998 Act;
(3) If such review is available, whether the 2009 Act is invalid on irrationality grounds.

The ruling from the Supreme Court, expected in August will be interesting in that even if its judges find the Scottish 2009 act competent in terms of ECHR legislation and find no breeches of the insurance companies rights under Article 1, the Supreme Court may be put in a position on ruling whether the 2009 Damages Act, or indeed any legislation passed by the Scottish Parliament can be challenged under common law, a nightmare scenario which is bound to stir up more controversial comments about the Supreme Court’s role by Scottish politicians and the First Minister when the Supreme Court eventually makes known its decision in the case.

More information on the bitter, costly battle over the Damages (Asbestos-related  Conditions) (Scotland) Act 2009 was revealed today in a response to  a Freedom of Information request to the Scottish Government who have revealed a massive £341,857.79 of public funds have been spent on legal fees defending against the Insurers, who have already lost two challenges against the new law at Scotland’s Court of Session. The cost to taxpayers is likely to rise whatever the outcome, especially if the UK Supreme Court rules in the Insurance companies favour.

I reported earlier on the Insurers failure to overturn the Damages (Asbestos-related Conditions) (Scotland) Act 2009 HERE, the first hearing of the case in the Court of Session’s Outer House (Lord Emslie’s 2010 dismissal of the Insurers case) and the second challenge in the Inner House (Lord Hamilton’s dismissal of the reclaiming motion).

Avira, AXA Insurance, Zurich and the infamous Royal Sun Alliance (who also insure all Scottish solicitors via the Master Policy) were represented at the Court of Session by the Dean of Faculty himself, Richard Keen, and Scots law firm Brodies LLP. However, the big name legal team proved to be the big failure in the Scottish Courts which most people had hoped for and the Insurers failed to have the 2009 act of the Scottish Parliament struck down.

The Judiciary of Scotland website reported on the Lord President's final ruling of earlier this year, stating : The First Division of the Court of Session has issued its judgment in the above case, in which the petitioning insurers (AXA and Others) challenge the lawfulness of an Act of the Scottish Parliament – the Damages (Asbestos-related Conditions) (Scotland) Act 2009.  That Act provides that asbestos-related pleural plaques, and certain other asbestos-related conditions, constitute personal injury which is not negligible and is therefore actionable under Scots law.  This statutory provision in effect reverses, for Scotland, the decision of the House of Lords in Rothwell v Chemical Insulating Co Ltd.

The challenge was on two bases:  first, that the legislation was unlawful at common law and, secondly, that it infringed the insurers’ property rights under Article 1 of Protocol 1 to the European Convention of Human Rights.  The court has rejected the challenge at common law.  As to the challenge based on the Convention rights, it has held that the insurers’ rights are interfered with, but that in the whole circumstances that interference was justified.  It has, accordingly, rejected the challenge also on that ground.

The passage of the asbestos compensation laws at Holyrood during 2008 saw legal representatives for the Insurers tell MSPs at the Justice Committee that Pleural Plaques, an asbestos related condition “were good for you”, a statement widely reported in the media along with VIDEO FOOTAGE from the Scottish Parliament.

Dr Pamela Abernethy of Edinburgh law firm Simpson & Marwick & the Forum of Insurance Lawyers told MSPs : ‘plaques are a good thing'

 

Asked for comment on the Insurers Supreme Court challenge to widely supported & what many regard as a positive piece of legislation from the Scottish Government & Scottish Parliament, a Scottish Government spokesman said: "The Damages (Asbestos-related Conditions) (Scotland) Act was passed with overwhelming support in the Scottish Parliament, offering comfort to people with pleural plaques that they can claim compensation for the condition. The Act was found to be legal by the the Court of Session and has now been referred to the UK Supreme Court.”

The spokesperson continued : “Given that the case is currently live, it would be inappropriate to comment further."

Should the UK Supreme Court be able to rule on the eligibility of the Scottish Parliament to make legislation particularly when the vested interests of big business with easy access to legal teams and never ending finance can buy access to justice and possible changes to Scots law when others cannot ? One thing is for sure, if it does, we can expect a barrage of criticism from all quarters against its authority.

Here we certainly have a case which may prove to some there is no clear cut position on whether the Supreme Court is good or bad for Scotland in its current format .. and indeed, some may be left wondering whether the Human Rights of big business to keep its profits instead of paying out compensation to victims is indeed, a human rights issue or not.

Personally, I can think of a few other Human Rights cases in Scotland more deserving of the courts time, but then again, the people I am thinking of have little or no access to legal representation … unlike the Insurers who have.

My previous coverage of the Scottish Government’s 2009 asbestos compensation legislation is here : Damages (Asbestos-related Conditions) (Scotland) Act 2009 - The story so far

First Minister Alex Salmond ‘could rely on Crown Immunity’ in row over Supreme Court comments & legal action threat from Human Rights solicitor

Scotland’s First Minister may rely on Crown Immunity to avoid possible court challenge by solicitor. THE ROW over Alex Salmond’s comments on rulings from the UK’s Supreme Court took another twist today as senior legal figures claimed CROWN IMMUNITY for Scottish Ministers may come to the rescue of Scotland’s First Minister, Alex Salmond in the issue over comments the First Minister made against Professor Tony Kelly, who Mr Salmond accused in an interview for Holyrood magazine of making “an incredibly comfortable living by trailing around the prison cells and other establishments of Scotland trying to find what might be construed as a breach of human rights of an unlimited liability back to 1999”.

Mr Kelly, a solicitor whose clients have included the man convicted of the bombing of Pan Am Flight 103 over Lockerbie Scotland in December 1988, has threatened to bring legal action in the English courts against the First Minister as reported in yesterday’s Herald newspaper. However if Crown Immunity is claimed by the First Minister, it is unclear if the case could proceed.

The Herald newspaper yesterday reported : “Human rights solicitor Professor Tony Kelly claims Mr Salmond “has called into question my professional integrity”. And he added: “With regret, I have had to take legal advice and following upon that, given the nature of attacks upon me, I have decided to formalise my opinion.”. Today’s Herald newspaper reports Mr Salmond has refused to apologise for any of his comments made on the Supreme Court, its judges, rulings and comments made against Mr Kelly.

In the interview for Holyrood magazine, Mr Salmond said of Mr Kelly : “You are talking about giving thousands of pounds going to people like Beggs, for example. If a system does that then it falls into total and utter disrepute because there is not a single person, outwith Professor Kelly [Tony Kelly, the human rights lawyer] who was the instigator of many of the actions, that believes that the judicial system is there to serve their interests and to make sure they can make an incredibly comfortable living by trailing around the prison cells and other establishments of Scotland trying to find what might be construed as a breach of human rights of an unlimited liability back to 1999 and that is what we were faced with.”

Mr Salmond continued : “The judicial system does not exist to serve Professor Kelly, it exists to serve the people and any judicial system which allows that to happen would fall into disrepute and what’s more, it costs lives because if you take £100m out of the justice budget you cost lives; less police, less courts, less effective justice and incidentally, less Legal Aid and it is an inevitable consequence of that sort of thing.”

In the same interview, Mr Salmond also attacked Lord Hope, a Scottish judge on the Supreme Court, saying : “All I would say to Lord Hope is that I probably know a wee bit about the legal system and he probably knows a wee bit about politics but politics and the law intertwine and the political consequences of Lord Hope’s judgements are extreme and when the citizens of Scotland understandably vent their fury about the prospect of some of the vilest people on the planet getting lots of money off the public purse, they don’t go chapping at Lord Hope’s door, they ask their Parliament what they are doing about it. I am perfectly happy if Lord Hopes wishes to exercise his freedom of speech and I hope he is happy with mine but at least I went to the bother of being elected, it may be an inconvenience but none the less has to count for something.”

In response to continuing criticisms over the First Minister’s comments on the Supreme Court and Lord Hope, and Professor Kelly, the First Minister said : "I conducted the interview with Holyrood magazine two weeks ago when we were engaged in a vigorous debate on these matters. Since then I have appointed, under Lord McCluskey, a panel of people of eminence and expertise to advise this Parliament, and then to have their views debated in this Parliament so we can address the underlying issue. I think this is the way we should do this.”

Mr Salmond continued : "The integrity of the criminal law of Scotland is a matter of concern. It was never meant to be second guessed in the way that's happening at the present moment. "As well as a right of free speech, we have a duty as parliamentarians to articulate the public concerns and try and bring proper remedy. It is not, as Iain Gray represents it, that everyone should have human rights. It is whether this Parliament, this jurisdiction, this legal system stands in equality with every other jurisdiction in Western Europe."

Legal insiders today claimed Mr Salmond as a Scottish Minister may rely on “Crown Immunity” from any court action brought against him, alleging the issue had already been discussed at senior levels of the Government.

A legal source said : “Mr Salmond like all Scottish Ministers, has the availability of Crown Immunity open to him should he require to use it. However the irony of Scotland’s First Minister who has an ultimate goal of independence relying on Crown Immunity to walk away from litigation brought by a solicitor who did nothing other than represent his clients on Human Rights issues will be a sad reflection on the legal system and leave Mr Salmond open to continuing widespread criticism on legal issues.”

The legal source pointed out Mr Kelly’s law firm, Taylor & Kelly already have a track record on cases involving Crown Immunity in post-devolution Scotland where the Scottish Government had lost rulings on its use of Crown Immunity defending previous cases brought by Taylor & Kelly.

Pressed on a statement the use of Crown Immunity amid rumours in legal circles Mr Salmond would claim it if faced with legal action from Professor Kelly, the Scottish Government said : “We do not wish to be drawn on the issue of Crown immunity.”

Yesterday, the Law Society of Scotland & Faculty of Advocates issued a joint statement condemning the First Minister’s remarks against senior members of Scotland’s legal profession and the judiciary.

Responding to recent comments from the First Minister; Richard Keen, dean of the faculty of advocates and Cameron Ritchie, president of the Law Society of Scotland said : "The independence of our judicial system and the need to respect the rule of law are fundamental aspects of Scottish society, as they must be of any democratic society. This is affirmed by the Judiciary and Courts (Scotland) Act, an Act of the Scottish Parliament which obliges the First Minister and the Justice Secretary to uphold the independence of the judiciary, including the Supreme Court of the United Kingdom . Our judges must be free to decide cases independently, according to law and upon evidence. Any attempt to influence the outcome of litigation by reference to political wishes or a politician's perception of popular opinion is a challenge not only to the courts but to the rule of law.

The statement continued : "The Scottish Government talks about the unintended consequences of establishing the UK Supreme Court. The First Minister and the Justice Secretary need to carefully reflect on the consequences of what are perceived to be repeated and now highly personal attacks on respected members of the legal profession. Such comments contribute nothing to any sensible debate on how best to provide a justice system that properly and effectively meets the needs of our changing society."

Mr Salmond’s attack on the legal profession and members of the judiciary on issues of Human Rights rulings & criminal law may well strike a chord with some, however as a journalist & long time law reform campaigner, I have to wonder why does the First Minister not make similar criticisms or public attacks on the now very obvious corruption at the Law Society of Scotland who, as the regulator of Scotland’s legal profession continue to allow rogue solicitors to work as normal while hundreds, now thousands of ruined clients are denied any justice, any access to justice and any chance of recovery of millions of pounds stolen each year by solicitors from their clients.

John Swinney’s constructive criticism of the Law Society over corruption at the Master Policy earned him much respect. Perhaps Mr Salmond can learn a thing or two about criticising the legal profession from his number two, John Swinney, who, very singularly, took on the Law Society of Scotland at its highest levels at the Justice 2 Committee in 2006 and exposed the word of the Law Society’s Master Insurance Policy and its targeting of solicitors clients who attempted to pursue their crooked lawyers to the courts. The scandal revealed by Mr Swinney eventually led to the resignation of the Law Society’s then Chief Executive Douglas Mill. Mr Mill announced his resignation in January 2008 which I reported on HERE after video footage of the heated exchanges between Mr Swinney & Mr Mill were published on video sharing website You Tube in December 2007.

John Swinney’s attack on the Scottish legal profession’s handling of client complaints & damages claims was far more relevant & to the mark than Mr Salmond’s raging against the Supreme Court.

If Mr Salmond wants to take on the Scottish legal profession, there are far more important issues & scandals for the First Minister to raise in public of how the legal profession & the Law Society affects & treats Scots when it comes to access to justice, than his current criticisms of Human Rights rulings of the Supreme Court in London.

If Mr Salmond did choose to use his office & Holyrood majority to clean up Scotland’s legal profession, cure its corrupt regulatory practices (including the useless Scottish Legal Complaints Commission) and resolve the legal profession’s injustice against thousands of clients over the decades, a matter I once brought before Holyrood’s Petitions Committee, which was in turn killed off by Law Society demands, well, that would be another subject entirely .. and one worthy of considerable support.

Mr Salmond would also do well to bring forward the full implementation of the Lord Justice Clerk Lord Gill’s recommendations in the Scottish Civil Courts Review, which for now, is itself under review as I reported HERE.

Human Rights, Scottish wrongs : Scots rights to Supreme Court hearings must be maintained against victorian, inflexible Scots legal system

Supreme Court battle : Alex Salmond’s understanding of Scots Law & Scots human rights appears flawed. In a week where the vast majority of headlines concerning the Scottish legal system have been taken up by the continuing arguments over the Supreme Court’s ruling in the Nat Fraser case, pitching the misunderstandings of First Minister Alex Salmond & threats from Justice Secretary Kenny MacAskill against the need to maintain the human rights compliance of Scots law with European Convention on Human Rights (ECHR), it may be worth reflecting on the simple fact that in this case, the Scottish Government are very very wrong and very much at odds with the protection of human rights of individual Scots, whether the case be criminal law, or civil.

Scotland’s Justice Secretary Kenny MacAskill said Supreme Court judges knew Scots Law only through visiting the Edinburgh Festival. The Herald newspaper reported on Tuesday of this week that Mr MacAskill, who clearly disagrees with the Supreme Court’s ruling in the Fraser case, had accused the Supreme Court judges (two of whom are Scottish) of being part of a ”court in London that is made up of a majority of judges who do not know Scots Law, who may have visited here for the Edinburgh Festival”. Mr MacAskill is further quoted in the article : “We just want to be treated the same as other legal systems – we’re not, because we’re undermined routinely by a court that sits in another country and is presided over by a majority of judges who have no knowledge of Scots law, never mind Scotland.”

Mr MacAskill also said the Scottish legal system should have direct access to the European Court in Strasbourg rather than the route of the London Supreme court, however, as cases can take years to reach the European Court, and Legal Aid funding from the Scottish Legal Aid Board is not always obtainable if the applicant’s face doesn't fit, forcing Scots to wait four or more years for a fair hearing at Strasbourg rather than a trip to the Supreme Court is rather impracticable, not to mention breaching the rights of Scots to fair hearing in European law within a reasonable time.

On Wednesday of this week, the Herald newspaper reported the decision of the Scottish Government’s Cabinet to set up an expert group to examine Scotland’s relationship with the UK Supreme Court, quoting First Minister Alex Salmond as saying : “It is that desire to ensure Scotland is allowed to make its own decisions that fuels this Government’s desire for reform of the current position of the UK Supreme Court in Scottish criminal cases.”

He said it was “most certainly not”, as had been suggested by Supreme Court judge Lord Hope, “a misunderstanding of the law and the facts on the part of the Scottish Government”, adding “Our concerns are shared by senior members of the Scottish judiciary and respected legal figures, including Lord Fraser, the former Lord Advocate.” Mr Salmond is further quoted : “This is a practical and moral issue which concerns the rights of victims and their families, whose search for justice is delayed, and leads to cases being decided by a court where the majority of judges are not expert in Scots Law.” yet there are many more respected legal figures who dispute the First Minister’s version of events and view that Scots seeking justice should be forced on the long road to Europe rather than the shorter road to London.

The same day, Wednesday, Scotland’s Justice Secretary Kenny MacAskill threatened to cut funding to the Supreme Court, reported again in the Herald newspaper. The Herald article quotes Mr MacAskill as saying : “When I go to the Law Society I say that I will not routinely fund ambulance-chasing lawyers. It should be said that I am not going to pay for ambulance-chasing courts. As a Government we have to pay for the Supreme Court of the UK and I think they should recognise that we’ll pay for our fair share of what goes there.” Mr MacAskill is further quoted : “But I am not paying money that would come out of the police budget, or prison budget or community payback budget because they are routinely taking cases that we as a country do not think should be going there. He who pays the piper, as they say, calls the tune.”

Surely Mr MacAskill’s threat of withdrawing funding from the Supreme Court is a product of desperation in an argument where clearly, with the failure of Scottish judges to understand ECHR & comply with it in rulings in Scotland, Scots should be even more actively encouraged to seek rulings in London, rather than as the Lord Justice Clerk Lord Gill said himself, Scotland’s “Victorian” justice system.

However, in a twist to Mr MacAskill’s position on the funding question, with the Justice Secretary clearly feeling he can withdraw funding for Scottish cases to the Supreme Court, a move many could say is intended to frustrate an individual’s access to justice, Scottish judges themselves have taken an opposite approach and appeared before Holyrood, arguing they should have the power to ensure funding from the Government if justice requires it.

Scotland’s Lord President, Lord Hamilton argued Courts should have power to compel funding for justice. Indeed, the current Lord President, Lord Hamilton appeared before the Scottish Parliament’s Justice Committee, telling msps judicial independence should be maintained and also saying the justice system should have the power to ensure funding is made available for it. Lord Hamilton said : “In difficult financial times, it could be important for the courts to be able to say to the other organs of government that, to maintain a proper judicial system in a democratic society, they require funding of a certain minimum level to discharge that responsibility. It is in that provision that you have the responsibility of providing that for us.”

Video footage of Lord Hamilton speaking on the question of funding for justice is available here : Lord President Lord Hamilton says the courts should have power to compel funding from Government for justice system to work properly

Today, Friday, the Herald newspaper reports the First Minister as having been forced to defend ‘Little Scotlander’ Justice Secretary Kenny MacAskill over his comments against the Supreme Court and accusations against its judges. Mr Salmond, replying to questions in the Scottish Parliament said : “I fully endorse the Justice Secretary in all aspects of his excellent work.”

Clearly, the human rights of Scots are caught up in a game of political football by Supreme Court hating politicians, who are concerned a court which is generally outside their influence is showing up the Scottish justice system to be the archaic, Victorian and prejudiced model we all know it to be, words spoken by some of its own judges and officials on the ground, rather than those living in ivory towers of St Andrews House.

It should also be noted that while the Scottish Government are content to huff & puff, playing to an agenda which seeks to deprive Scots of human rights rulings within a reasonable time, not one single press release or ministerial statement has appeared on the Scottish Government’s own website this week over the Supreme Court debacle, not even a hint of the Justice Secretary’s threat to pull funding for the Supreme Court.

Readers may wish to view the following two interviews and judge for yourselves, who is acting in the public interest to protect Scots rights of access to justice & access to Human Rights :

Making politics : First Minister Alex Salmond claimed the ruling was the replacement of Scottish Law with Lord Hope’s law, even though Lord Hope is a former Lord President of the Court of Session in Scotland.

Making sense : Professor & solicitor Tony Kelly : “If the Supreme court constantly has to overturn the decisions of the Scottish Court there is a problem..”

Victorian,prejudiced,politicised & definitely a little crooked, yet First Minister feels Scotland’s justice system should be its own final arbiter

Scotland’s “Victorian” justice system in the dock after UK’s Supreme Court overturns yet another criminal conviction. AS the ash cloud caused by the Supreme Court’s ruling on Nat Fraser’s appeal continues to spark protests from First Minister Alex Salmond & Justice Secretary MacAskill of the necessity of the Scottish legal system being the final arbiter of cases brought before it, we would all do well to remember that Scotland’s justice system which has been branded Victorian, prejudiced, restrictive, most certainly a little crooked, open to political manipulation and by all accounts certainly racist and even sectarian, cannot in any circumstances be regarded as a justice system fit for a modern democracy which gives those brought before it in criminal law, or those who must use it for civil law, a right to a fair hearing or even a right to access to justice itself.

Yesterday’s ruling by the UK Supreme Court which overturned Nat Fraser’s conviction after a jury at the High Court in Edinburgh in 2003 found him guilty of killing his wife Arlene who vanished from home in April 1998 has led to accusations yet again that the Supreme Court in London threatens the independence of Scotland’s criminal legal system. However, the only real threat to the independence, (and don't forget the integrity & credibility) of Scottish justice and Scots Law, is Scots Law itself.

First Minister Alex Salmond being sworn in by .. Scottish judges. Predictably, the First Minister reacted bitterly to the perceived intervention of a court outside Scotland which decided Mr Fraser’s rights to a fair hearing had been breeched. Mr Salmond said : “I have no comment on the specifics of the case, which is live. But what needs to be addressed is the underlying issue - the principle that Scotland has, for hundreds of years, been a distinct criminal jurisdiction, and the High Court of Justiciary should be the final arbiter of criminal cases in Scotland, as was always the case.”

Mr Salmond continued : "Before devolution, the House of Lords had no jurisdiction whatever in matters of Scots criminal law. The increasing involvement of the UK Supreme Court in second guessing Scotland's highest criminal court of appeal is totally unsatisfactory, and creates additional delay and complexity which cannot serve the interests of justice.As we said in our evidence to the Scotland Bill Committee, the Scottish Government believe that the UK Supreme Court should have no role in matters of Scots criminal law, whether by way of devolution issues or appeal."

A legal observer, commenting on the ruling & the criticisms of the Supreme Court by the First Minister pointed out the Scottish legal system, with Scotland currently a member of the EU must be ECHR compliant. He said : “First thing is that the London Supreme Court was simply upholding the ECHR, which applies to the UK and by direct application, Scotland.”

Criticising the now notorious woes of Scots Law, he continued : “The Scottish legal and political system is the worst in the British Isles, even worse than the system in the Republic of Ireland. I´m all for further intrusion by the Supreme Court in the Scottish criminal system.”

Let us take a closer look at the Charges facing Scotland’s Justice system, both criminal & civil :and judge for ourselves whether it is fit for a modern democracy as we are supposed to be.

VICTORIAN.

Lord Justice Clerk, Lord Gill branded Scots civil law “Victorian” yet clearly Scots criminal law also has major problems. It wasn't too long ago Scotland’s Lord Justice Clerk, Lord Brian Gill said in a speech to a Law Society of Scotland conference which preceded publication of his Civil Courts Review, branded Scotland’s civil justice system as “a Victorian model that had survived by means of periodic piecemeal reforms … in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society.” Clearly the judge said it, so it must be true. Lord Gill said a lot more and put forward many recommendations to fix Scotland’s “Victorian” justice system yet the reaction of the Scottish Government to Lord Gill’s damning indictment of Scotland’s civil justice system was to launch another review of Lord Gill’s review, which I reported on here : Scottish Government delay reforms on costs of litigation & access to justice as Minister announces 18 month 'time wasting' review by retired sheriff.

Many of the same failings of the civil justice system are also true of Scotland’s criminal law system, which is clearly out of touch on many occasions with human rights issues, so out of touch the Supreme Court also had to correct the rights of accused to be able to consult a solicitor when being interrogated by Police, as occurred in the Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) (pdf) ruling which caused similar huffing & puffing from Mr Salmond & Mr MacAskill, who were apparently keen to maintain the lack of such rights to accused, before the Supreme Court’s ruling.

A review of a very damning review and attempts to restrict the rights of individuals already accepted across Europe does not inspire confidence in the need to update a justice system Mr Salmond claims is already fair and should be its own final arbiter.

PREJUDICED, RESTRICTIVE, SELECTIVE.

Do you need legal aid to fund legal representation ? Whether its a civil or even a criminal case, the Scottish Legal Aid Board may very well refuse it, clearly hindering your right to a fair hearing or a fair trial. Legal Aid refusals appear to be based more on personal prejudices of some in the justice system rather than whether a case stands a chance of success or not.

Don't have a lawyer ? then don't expect to get into court, and expect a lot of grief if you try to do it. Try taking a civil case to the Court of Session as a party litigant after being denied legal representation simply because solicitors do not wish (for a variety of reasons including orders from on-high) to progress your case. Never has a class of litigant been so prejudiced in the entire UK as party litigants are in Scottish courts. The eyes of the £200,000 a year judge and equally costly defending counsel before you in the court say it all “Why does this person exist. What gives this person the right to intrude into our cosy club and challenge our right to stand here with the full backing of the legal establishment and decide who should come before us.”

EVEN A LITTLE CROOKED.

From the Law Society personally targeting the lives of those who complain against their solicitors, to our judges being controlled by male prostitutes, to Police Officers leaking data to criminals to fingerprints being planted at murder scenes, to lawyers getting away with legal aid fiddles, to the law itself being manipulated by its servants to bring charges against individuals, one may argue the Scottish justice system is a lot more crooked than the media can keep up with all the scandals requiring exposure.

OPEN TO POLITICAL MANIPULATION.

The Lockerbie Trial, and the controversy that will never go away over the hearings at Camp Zeist and the subsequent conviction of Abdelbaset Al Megrahi for the bombing of Pan Am Flight 103 over Lockerbie, Scotland in December 1988. Just imagine what may have happened if, rather than being conveniently released on compassionate grounds by Justice Secretary Kenny MacAskill, who was obviously keen on avoiding making the Scottish Court of Appeal look even more a fool than it is, Abdelbaset Al Megrahi had finally been able to take his appeal to the Supreme Court in London ? If the court had ruled in his favour and quashed his conviction, how much huffing & puffing would the First Minister and Justice Secretary done in that event ?

RACIST.

In the case of Surjit Singh Chhokar, the Crown Office was and still is, branded as “institutionally racist”. There is little doubt race and racial discrimination places a huge part in Scotland’s justice system today, no matter how many statistics the Crown Office may tout on hate crimes or race crimes.

As the Telegraph newspaper reported at the time : “SCOTLAND'S most senior lawyer announced sweeping reforms of the Scottish criminal justice system yesterday following the publication of two damning reports into the murder of an Asian man. Although the reports reached conflicting conclusions on institutionalised racism, both investigations uncovered serious mistakes by the prosecution service in its handling of the Surjit Singh Chhokar case.”

“Comparisons between the Chhokar case and that of Stephen Lawrence had been made following the acquittal of three men accused of murdering the Sikh waiter three years ago. Addressing the Scottish Parliament, Colin Boyd, the Lord Advocate, admitted that the legal system had "failed the Chhokar family" and offered his apologies to them. Mr Boyd accepted the findings of a report by Raj Jandoo, Scotland's most senior Asian advocate, which found evidence of institutionalised racism in the way police officers and the Procurator Fiscal dealt with the bereaved family.”

We all of course remember what happened to Scotland’s most Senior Asian Advocate Raj Jandoo after he wrote the report, BBC News reported Mr Jandoo was convicted of endangering an aircraft and breach of the peace for mentioning a bomb and being regarded as terrorist causing fear and alarm to passengers and crew. Meanwhile other [white] Scottish legal luminaries dragged off aircraft & charged with offences, had their charges dropped.

Racism is still very much alive in the Scottish justice system today.

SECTARIAN.

Surprise ! Even though no one wants to admit it, Scotland’s justice system is just as sectarian as those individuals or groups the Justice Secretary now seeks to legislate against with what will probably be poorly thought out laws rushed through the Scottish Parliament which may well end up being challenged on ECHR compliance later on, possibly in the Supreme Court once again.

According to a report authored by Dr Susan Wiltshire of Glasgow University for the Scottish Parliament’s Petitions Committee, there is firm evidence to show the Scottish Justice system is itself sectarian, holding harsher positions, verdicts & gives out longer term sentences against catholic defendants and other religious minorities than other groups who come before it on criminal (and quite possibly civil) matters, according to coverage from Scottish Law Reporter, available here : Report published by Holyrood Committee says justice system may be prejudiced against Catholics, confirms higher numbers in Scots jails.

The report, which msps were reluctant to publish, presumably because it revealed there were indeed sectarian issues in the Scottish justice system itself, can be downloaded from the Scottish Parliament’s website, here : Offender Demographics and Sentencing Patterns in Scotland and the UK: Research commissioned by the Public Petitions Committee in consideration of PE1073 (203KB pdf)

Is such a justice system worth defending when clearly it fails to serve Scotland and the Scottish people, rather only serving its own vested interests and of those who support it ?

First Minister Alex Salmond’s criticisms of yesterday’s Supreme Court ruling and his views on Scotland’s justice system being its own final arbiter are not consistent with the realty of justice in Scotland. Little wonder therefore that those who require a fair hearing in criminal or civil law should now look to the Supreme Court and even Europe because Scottish justice is unfair and all the things above.

Of course, Mr Salmond, you’d know all this anyway if you actually spent some time in the justice system yourself …