AXIS TO JUSTICE: ‘Treat lawyers like Hospitals & Police’, Democracy ‘at risk’ if state refuses to fund litigants - Law Society & Faculty of Advocates attack plans to make secretive, slow Scots courts self funding

Fund lawyers like nurses & public services - say lawyers. DURING TIMES of financial crisis, Brexit woes and growing demands on nurses, doctors, the NHS, Police, education and everything else. public services should be forced to take an equal seat to the spiralling billions of pounds of public cash lavished on lawyers, the courts and legal aid – according to claims from the legal profession.

The demand for equal treatment to public cash comes from the Law Society of Scotland and the Faculty of Advocates – who, along with other legal vested interests - are calling for the state to fund all court actions and treat lawyers in the same ‘deserving of public funds’ category as medical care provided by the National Health Service, education, social care and Police.

The latest call from the Law Society of Scotland to increase - by millions more - the flow of public cash into legal business and struggling lawyers pockets - comes in answer to plans by the Scottish Government to hike court fees by up to 25% and turn the closed shop, secretive, slow and unjustly expensive Scottish courts run by the Scottish Courts and Tribunals Service (SCTS) into a self funding operation.

However, under the guise of defending ‘access to justice’ – loosely translated to ‘public cash for lawyers’ - the Law Society state in their response: “Plans to introduce the full recovery of civil court costs in Scotland would be damaging to access to justice, particularly for those bringing forward personal injury cases and more vulnerable people.”

The Law Society of Scotland’s response to the Scottish Government's consultation on Court Fees goes on to state “any move towards full cost recovery should be avoided” and “that the state has a duty to help people in achieve ‘equality of arms’ in the courtroom.”

The Law Society also claims that a proposal to introduce a 24% rise in court fees would be ‘unjust and unjustifiable’.

Syd Smith, from the Law Society of Scotland’s Remuneration Committee, representing the views of pursuers’ solicitors, said: “We believe it is essential that the courts should provide an independent and impartial forum for resolving disputes between people or organisations and that the state has a duty to help those involved have equality of arms when their cases go to court.”

The Law Society has said that any new system for court fees would have to ensure they were proportionate, taking into account Lord Gill’s Review of the Scottish Civil Courts, and the findings of Sheriff Taylor in his Review of Expenses and Funding of Civil Litigation in Scotland.

Mr Smith said: “We think the focus of any review of court fees should be on redressing the balance between claimants and defenders in personal injury cases. However if the government’s aim is to have a system where 100% of the cost of the courts are covered by fees paid by those involved in the actions lodged, it will be vital to have proportionate fee levels.

“The consultation option to introduce a 24% rise in court fees would represent an unjust and unjustifiable increase which would create a very real barrier to access to justice for claimants especially vulnerable people who have suffered life changing personal injuries.

“Any change to the current system also needs to recognise that there is not a level playing field between personal injury claimants and the insurance companies who are the defenders in those claims. Any changes which fail to recognise this problem risk widening the existing gap.”

Going a little further, and backing up their legal vested interest colleagues, the Faculty of Advocates response to the Court Fees consultation claims democracy could not function if the state did not pay for litigants to sue everyone under the sun in the same way convicted mass murderers and fraudsters empty hundreds of millions of pounds of Criminal legal aid from the public purse.

A submission from the Faculty of Advocates to the Court Fees consultation states: “The civil justice system should be funded by the state from general taxation…(it) is a cornerstone of a democratic state…(and) is vital to every citizen, whether or not he or she ever becomes a litigant,”

“No part of our democratic society could function without our civil law being maintained by the operation of our courts. There is no warrant to shift the cost of the courts entirely on to litigants when the whole of society benefits from them,”

“As a matter of principle, the civil justice system should be funded by the state, not litigants,” it said.

“The civil justice system is a cornerstone of a democratic state. It is the duty of the state to provide an accessible civil justice system…To the benefit of society at large, the law is made, declared or clarified daily by the civil courts. The civil justice system is vital to every citizen, whether or not he or she ever becomes a litigant. The benefits to society justify it being funded in full from general taxation.

“Many state-provided services are funded from general revenue, on the basis that these services benefit the whole of society, and not just those in immediate need of them. Our society accepts that, without regard to their means to pay, individuals should have access to medical care, and that every sort of person should be served by the police and emergency services.

“The Scottish Government has recognised that charging tuition fees to students limits access to higher education for many and that charging for prescriptions might deter people from seeking medical assistance. The Faculty considers that access to the courts is of equal importance.”

The Faculty believed that the proposed increases would be likely to impede access to justice, and that requiring a person to pay expensive court fees could be a breach of Article 6 of the European Convention on Human Rights, which protects access to a court.

“The funding of the civil justice system by litigants rather than the state does not protect access to justice, it hinders it.

“If even a few people are deterred from litigating a good claim or defence, that is seriously damaging justice. There may be many more than a few who are so deterred, of course,” said the Faculty.

“The system of court fees exemptions is inadequate to protect access to justice…the thresholds for exemptions are set very low.”

So, the next time you need emergency medical care, the Police, education for your children, help with homelessness or any other public service - remember not to call the well trained and dedicated people who staff these vital arteries of life.

Instead, call a lawyer and insist your taxes, your hard earned savings (if any) and dwindling assets are handed over to fund a solicitor, court clerks, a struggling Sheriff on £160K a year or a £230K a year Court of Session judge – just like the Law Society of Scotland said – because you know – lawyers have your interests and ‘access to justice’ as their priority.

GIVE CROWN OFFICE MORE MONEY – Law Society to MSPs.

In a second take on the more public cash for lawyers approach, earlier this week the Law Society of Scotland also demanded more public cash be given to the struggling Crown Office & Procurator Fiscal Service (COPFS) – who are forced to eek out an existence on a staggering £112 million a year.

In written evidence to a Scottish Parliament Justice Committee inquiry into the workings of Scotland’s “Institutionally corrupt” Crown Office, the Law Society of Scotland has said that consideration will be needed to ensure that the service provided by Crown Office and Procurator Fiscal Service (COPFS) and others is accessible and inclusive for all members of society.

In its response to an Inquiry on the role and purpose of the COPFS, the Society also stated that all participants involved in the criminal justice system have responded to a number of reforms during a time of significant financial pressure.

Ian Cruickshank, convener of the Law Society of Scotland Criminal Law Committee, said: “It’s important that the criminal justice system evolves and makes use of new technology which can help improve the service particularly when there continues to be financial pressures alongside increasing numbers of serious crime reported to the COPFS and legislative developments.

“However it is important to be aware of the potential impact on core services at a local level and on access to justice. There will need to be careful consideration on how best to ensure the service provided by the COPFS and others within the criminal justice system is accessible and inclusive to all member of society.

“Lack of resources has had an impact on the preparation and the time available for presenting criminal prosecutions in our courts. The number of prosecutions resulting in court disposals has decreased in the past five years, however the complexity of the impact of recent legislation, and the complexity of certain types of cases reported, means more preparation and court time is required.”

Previous reports on how much the Law Society of Scotland values your ‘access to justice’ and their vested interests, can be found in the archive of reports, here: Law Society of Scotland

NO MONEY NO JUSTICE: Slow, costly courts, £220K a year judges on junkets & justice staff on the take prompt Scottish Government proposal for 25% hike in court fees

Scotland’s courts to become 25% more rip-off than before. EVERYONE knows the Scottish Courts and Tribunals Service (SCTS) and our powerhouse Sheriff Courts & the fabled Court of Session teeter on the brink of consternation, calamity, comedy and collapse at the end of each working legal week.

Every time a member of the judiciary takes time off their busy schedule of frequently flying £5K international holidays on the taxpayer - to perform the actual £200,000 a year job of being a judge and sit and listen to the daily farce and often dodgy evidence presented by Crown Office prosecutors before the Criminal Courts - you would honestly think from their faces - the end of the world had arrived.

Judges are so rich poorly paid these days, they have to conceal their vast wealth with the threat of constitutional calamity if it were revealed - or flog their multi million pound Victorian villas, properties in the country, undeclared holiday homes in Dubai or wherever - to members of their own family – for millions of pounds and avoiding those awful taxes which apply to the rest of us.

Let’s not even talk about the others … week long holidays in Qatar, North America, the far east, or jetting off to New Zealand for a week, then retiring a few days later, the gold Rolexes, collections of valuable items, taxpayer funded security fit for Royalty, extra ermine gowns & hanging around the works of Leonardo Da Vinci in the hope of life eternal.

How about the well paid poorly paid overworked court staff you say? Well, not really.

‘Hospitality’, undeclared deals on the side with law firms and other less talked about financial arrangements for increasing numbers of court staff compensate for the daily struggle of putting pen to paper and reminding the elderly sheriff the one before him ‘is a bad yin’.

So, where does all the money come from to pay for your access to justice and the privilege of appearing before someone festooned in 18th Century fancy dress and surrounded by wood panelling and enormously expensive digital recording equipment - conveniently unplugged so as not to record the daily courtroom farce or your expert witness disagreeing with Lord know-it-all.

The Scottish Government gave the Scottish Court Service a whopping £88.9million of your cash in the 2016-2017 budget. Plenty there to go around.

The judiciary on it’s own receive a staggering £40million of public cash, to groan, grizzle, gloat & giggle as they listen to counsel after counsel, litigant after litigant – while dreaming of appearances & junkets to warmer, wealthier climes.

The Legal Aid budget – once standing at over £160million a year and now allegedly a very very very dodgy £136.9million in the 2016-2017 budget - your cash going on lawyers, criminals and some of the most laughable, inept court hearings in existence.

The Crown Office & Procurator Fiscal Service (COPFS) – widely regarded by all sides as the pre-eminently most corrupt institution in the entire Scottish justice system – received a staggering £112.5million of your cash. To do what? to cover up it’s own staff and prosecutors leaking case files and evidence to criminals, or snorting cocaine and beating up Police Officers.

And, let’s not forget the £58 million of public cash spent by the Scottish Court & Tribunal Service on new doorknobs, a lick of paint and new scones for the Court of Session ‘powerhouse’ - which must rank as Europe’s slowest, most distorted, most expensive & interest ridden seat of justice, ever.

All this must be paid for, somehow. Loads-a-money. Your money. Certainly not theirs, for they are all public servants paid for by you.

So we come to the Scottish Government’s proposal to go for ‘full cost recovery’, buried in the now familiar loaded consultation papers issued by the Justice Directorate of the Scottish Government.

And, instead of blaming the fee rises on our slow, difficult and inaccessible courts, the Scottish Government instead has chosen to blame budgetary cuts imposed by Westminster.

The Scottish Government Consultation on Court Fees 2016 sets out proposals for fees in the Court of Session, the High Court of the Justiciary, the Sheriff Appeal Court, the sheriff court, the Sheriff Personal Injury Court, and the justice of the peace court. Court fees are a major source of income for the Scottish Courts and Tribunals Service and it has become necessary to increase fees in order to achieve full cost recovery. It seeks views on two options each of which is aimed at providing full cost recovery.

Fee hikes across the board of almost 25% for civil actions in Scotland and alternative targeted rises are being proposed by Scottish ministers – as part of a consultation on Scottish court fees which runs until October.

Court fees have generally been reviewed every three years, with the last round being implemented in 2015, however this time around "the Scottish Government has decided to accelerate the move towards full cost recovery".

The Consultation on Court Fees – open until 12 October 2016 - sets out proposals for fees in the Court of Session, the High Court of the Justiciary, the Sheriff Appeal Court, the sheriff court, the Sheriff Personal Injury Court, and the justice of the peace court. Court fees are a major source of income for the Scottish Courts and Tribunals Service and it has become necessary to increase fees in order to achieve full cost recovery. It seeks views on two options each of which is aimed at providing full cost recovery.

The Scottish Government states “It is necessary to raise fees so that the Scottish Court and Tribunals Service is able to achieve full cost recovery from its courts. We are consulting on two options seeking the views of stakeholders on the best way to achieve this. Stakeholders will be able to provide their opinions on which option is better from the point of view of their own court actions and, if they are an organisation, of their clients. This will help the Scottish Government's decision on which option should be incorporated into the necessary Scottish Statutory Instruments.”

“A review is justified both by the need to end the cost to the public purse of subsidising the civil justice system, and by the introduction of the new simple procedure which replaces the current small claims and summary cause procedures."

Simple procedure will be phased in from 28 November for actions worth not more than £5,000. It is planned to retain existing fee levels for summary cause and small claims actions, so that at present levels lodging a claim for up to £200 under simple procedure would mean a fee of £18, and £78 for a claim above that level and up to £5,000.

If a flat rise is the option chosen, all Court of Session and sheriff court fees will rise by 24%, the amount needed to fund a deficit of £5.4m on gross fee income of £22.2m in 2014-15. That would mean lodging fees of £22 or £97 for simple procedure cases, £119 (from £96) for summary applications and ordinary sheriff court actions, £187 (from £150) for non-simple divorces, and £266 (from £214) for Court of Session or Sheriff Personal Injury Court actions. Hearing fees would jump from £227 to £282 in the sheriff court, and from £96 to £119 per half hour (single judge), or from £239 to £297 per half hour (bench of three) in the Court of Session.

Suggested targeted fee rises, the other option, would raise more money overall. The £18 simple procedure lodging fee would remain unchanged, as would the £150 divorce lodging fee and the £227 sheriff court hearing fees, as well as fees in the recently introduced Sheriff Appeal Court. However there would be a £100 lodging fee for a simple procedure claim for more than £200, £120 for summary applications and ordinary causes, and £300 for a Court of Session action. In that court the cost of lodging a record would almost double from £107 to £200, and hearing fees more than double to £200 for every half hour before a single judge, and £500 per half hour before a bench of three.

The alternative scheme would also see the introduction of graded fees in commissary court proceedings for authorising executors to handle a deceased person's estate. Whereas at present for all estates worth more than £10,000 there is a flat fee of £225, it is proposed to exempt estates worth less than £50,000 but to charge £250 for estates between £50,000 and £250,000, and £500 for larger estates.

The consultation paper states on Page 8: "We are aware that there will be a tipping point where fee increases may deter people from raising actions", the paper observes. "We do not believe that the level of rises in either option 1 or 2 as proposed will have a deterrent effect as individual fees will still be relatively low, particularly when viewed against the total costs of taking legal action including the cost of legal advice."

Be sure to enter your thoughts in the Scottish Government’s consultation. Go here to do so: Consultation on Court Fees You have until 12 October 2016.

JUSTICE DENIED: Solicitor accuses Law Society of Scotland of "abuse of power" - as legal aid decision by solicitors regulator leaves disabled clients denied access to justice

Solicitor Daniel Donaldson campaigns for reinstatement of legal aid certification. THE Law Society of Scotland has been accused of “abuse of power” and terminating access to justice for disabled & vulnerable clients - after a law centre was forced to pull out of legal aid work due to what appear to be internal politics at the professional body for Scottish solicitors.

The claims are made by a disabled solicitor – Daniel Donaldson – who founded Legal Spark – a Glasgow based law centre - with the aim of helping disabled people and other clients excluded from Scotland’s legal system.

Last year, the Law Society of Scotland granted permission to law centre Legal Spark to take on legal aid cases – allowing the law practice to take on cases from disabled people who had been unable to secure legal representation for their discrimination cases.

However, after the Law Society approved the law practice to engage in legal aid work, certification for Legal Spark to take on new legal aid cases has since been withdrawn - with unconvincing explanations from the Edinburgh based regulator - resulting in clients facing an uncertain future in terms of their access to the legal system.

Daniel Donaldson – who qualified as a solicitor six years ago – spent a year discussing Legal Spark with the Law Society of Scotland - which originally described the disabled solicitor’s proposals to create a facility to provide disabled clients with access to justice as “refreshing” and “innovative”.

However, the solicitor has now accused the Law Society of abandoning disabled clients and has set up a public petition calling for help in restoring his law centre’s legal aid certification

Readers can view more details of the petition here: Law Society of Scotland: Allow Legal Spark Legal Practice to continue Legal Aid Work

Speaking to a DOI journalist earlier today, solicitor Daniel Donaldson said the Law Society’s decision would deprive disabled people of access to justice.

Mr Donaldson said: "It's completely unacceptable for any public authority to ignore disabled service users.  We set us Legal Spark because of a problem with access to justice.” 

“We volunteered to do legal aid work to help unrepresented disabled people.  Now the LSS has forced us to stop.  What's changed in six months? Nothing.  They've made this decision for other reasons and not ,"public protection" as claimed.”

“The LSS believes they can do what they like with no scrutiny or accountability. Individuals are free to abuse their position. I call upon the Scottish Parliament and Scottish Government to strip them off all their regulatory functions and being an end to their abuse of power"

Out of concern for clients welfare after the Law Society’s decision to revoke legal aid certification - Legal Spark contacted 134 lawyers from a list provided by the Law Society of Scotland of law firms who take on civil legal aid cases and specialise in discrimination law.

However, not one law firm has taken any of Legal Spark’s clients – a move which is generating suspicion among some legal observers that the Law Society is unfairly controlling and restricting certain law firms and their clients access to legal aid.

The Disability News Service reported on the story, quoting  a Law Society Scotland spokeswoman who said: her organisation had made “a mistake” in originally granting Legal Spark permission to carry out civil legal aid work, before realising that it was “not entitled to provide this type of advice under the society’s civil legal assistance quality assurance scheme”.

The Law Society spokeswoman said: “The committee made a final decision on 16 June that a waiver could not be granted for public protection reasons and as the compliance certificate for Legal Spark had been issued in error, it could no longer provide advice funded by legal aid.

“The committee agreed that given the circumstances, Legal Spark could continue working with its legal aid clients until 30 June, to allow sufficient time to make alternative arrangements for clients.”

She said law centres have to be “underpinned by a solicitor practice unit [which she said Legal Spark was not]in order to be able to be on the civil legal aid quality assurance scheme register and provide legal aid funded advice”.

She added: “While it is rare for something to go wrong, clients have to be able to seek redress and as it currently stands, Legal Spark is not in a position to meet those requirements.”

The Disability News Service further reported:  By noon yesterday (28 July), the Law Society Scotland had failed to explain why it has refused to enter into mediation, although it claims that it was “still in communication with Legal Spark”.

The website of Legal Spark describes the legal services provider as  an innovative legal practice. Legal spark is a law centre, not a firm of solicitors.

Legal Spark state: “All lawyers will provide legal services,  but our practice is unique. Our practice is driven to maximise social impact, rather than to maximise profits for shareholders. Our business is ethical, and our legal practice promotes social responsibility.”

The law centre also pledges to reinvest their profits of commercial legal work to help people by:

* organising and taking part in outreach events in communities

* providing legal advice and representation for disabled people

* maintaining a commitment to legal aid work

Legal Spark are located at 22 Montrose Street, Merchant City, Glasgow G1 1RE email: contact@legalspark.co.uk

Petition : Law Society of Scotland: Allow Legal Spark Legal Practice to continue Legal Aid Work

Campaign created by: Daniel Donaldson

Campaign website: http://www.legalspark.co.uk/

Campaign facebook: http://www.facebook.com/legalspark

To: The Law Society of Scotland, the Scottish Legal Aid Board and others

The Law Society and Legal Aid Board informed Legal Spark Legal Practice that they had to stop all legal aid work on 30th June. As a result, "A", "B' plus many other disabled clients are forced to forego representation. They have the power to reverse their decision, together we can make that happen.

Why is this important?

Legal Spark was formed as a result of the crisis in legal aid. People were going without representation because they could not afford a lawyer. This is particularly the case for disabled people.

No one else would do this type of work, as it was deemed too expensive, not financially viable and also too complex.

Daniel Donaldson, a disabled Solicitor, set up Legal Spark with the Support of the Scottish Institute for Enterprise under their Young Innovators Challenge 2015 programme.

Daniel wanted to develop creative solutions to help people access justice and to fix the exclusion that disabled people face from the legal system.

Daniel spent one year talking to the Law Society about this issue, highlighting that it was important that everyone could access a lawyer.

Legal Spark consulted with the Chief Executive (Lorna Jack), the Head of Professional Practice, the Registrar and the Deputy Registrar (James Ness) and the Secretary to the Civil Legal Aid Quality Assurance Committee (Hannah Sayers) amongst others.

A document was prepared that explained what Legal Spark was planning to do. The Law Society accepted this document and did not object. The Law Society encouraged Legal Spark and found their approach "refreshing" and "innovative".

Legal Spark was granted permission to do Legal Aid work in November 2015, and a compliance certificate was issued in December 2015. Legal Spark began helping the many disabled people that needed their help and began to have success.

In April 2016, the Law Society decided that they had made an "error" and instructed Legal Spark to stop all Legal Aid work by Thursday 30 June 2016. By this stage, Legal Spark had a number of clients, with active and complex cases, some of which were about to go to Court.

"A" is one such client. They had experienced awful disability discrimination from a University. They were not given adequate support to help them during a course, and had to leave. Additionally, Legal Spark uncovered evidence that the University's staff had used "unprofessional language" in their approach to "A". This case has now been lodged in Court.

"B" is another client adversely affected by this decision. B is also disabled and is housebound. They had tried to find a lawyer for sometime but because of their rural location in the Highlands there were no Solicitors available to help. Legal Spark took on this case and was successful (in part) in achieving a resolution for B. However, because B had been adversely affected by a decision of Highland Council, and had lost out financially, the case may need to go to Court. B is unable to find anyone else to help them.

These are only two examples of where Legal Spark is making a difference, there are others too.

Since establishing Legal Spark, Daniel Donaldson has not drawn a salary and has used some of his own money to sustain the Legal Practice while it develops and is able to stand on its own feet.

Legal Spark has also grown to enable it to employ staff and provide much need paid employment to some disabled people and unemployed law graduates.

The Legal Aid certificate meant that Legal Spark could help people who could not access help elsewhere. Now "A", "B" and other will have to go without representation because of the Law Society of Scotland's failures.

The Law Society's Chief Executive (Lorna Jack)says that they have to act in the public interest. The Director of Regulation (Philip Yelland) shares this view.

1. Where is the public interest in denying disabled people representation?
2. Also, where is the public interest is giving permission to do Legal Aid work only to revoke that permission 6 months later?

The Law Society say that there are other Solicitors who can help, however this is not true.

Legal Spark contacted 134 Civil Legal Aid lawyers with advertised specialism in discrimination law. Even the biggest Legal Aid firm in Scotland could not help.

The Law Society has said that this will cause Legal Spark’s disabled client’s “inconvenience”. This is an offensive comment; they have never met any client, they have ignored client’s opinions, and also refused to acknowledge that they will suffer substantial prejudice in their cases because of the Law Society’s decision.

This petition is addressed to the Law Society and the Scottish Legal Aid Board.

It is important that you fulfil your roles correctly.

Overturn your decision to stop Legal Spark doing legal aid work, remedy the mistake you have made and apologise. This is the only way you can restore public trust and continue to say you act in the public interest.

Allow Legal Spark, and their clients the opportunity to continue to work together for the public interest and tackle the horrors faced by disabled people on a daily basis.
How it will be delivered

Signatures to this petition will be emailed, delivered in person, or a press conference will be arranged.

Top judge Lord Gill tells lawyers to ‘take opportunity’, says Courts Reform (Scotland) Bill will not reduce access to justice in speech to Law Society vested interests

Top judge reassures lawyers court reforms will not dent their profits or interests. IN a speech to multiple vested interests attending the Law Society of Scotland’s recent Annual General Meeting, Scotland’s top judge, the Lord President Lord Brian Gill has defended proposals contained in the Scottish Government’s Courts Reform (Scotland) Bill, claiming the reforms, based on recommendations of the 2009 Civil Courts Review authored by Gill himself, will not reduce access to justice as some lawyers claim.

The judge went on to tell the audience of those who make billions of pounds out of Scotland’s courts & clients each year that the reforms would instead offer opportunities to the solicitors' profession.

Lord Gill, who has previously addressed the Law Society’s AGM in his capacity as Lord Justice Clerk, most notably when he criticised Scotland’s civil justice system as being unfit for purpose, and “Victorian” in its workings, was speaking as the first Lord President to address the AGM.

The speech “Looking over the horizon – life after the Courts Reform Bill” was intended to allay widespread fears within legal circles that lawyers fees, income and law firm’s profits will be hit by reforms to Scotland’s civil courts which include transferring cases of £150,000 or less to the Sheriff courts, where legal fees are significantly less compared with charges levied by solicitors for attending Scotland’s highest court, the Court of Session based in Edinburgh.

Speaking on the “private jurisdiction of the Court of Session”, Lord Gill said: “It has been recognised from the earliest  days of the  Review, that not all low value cases are straightforward. There can be many complicated issues  in any type of case, regardless of value. It is foolish to suggest that  all low value cases are straightforward. It is foolish likewise to suggest that all claims raised in the Court of Session involved complicated matters of law and procedure. Experience shows  that the  majority  of the low value claims  in the Court of Session  are  straightforward. In any event, the Bill makes  provision for cases to be remitted to the Court of Session in appropriate circumstances (clause 88).”

“Some respondents to the Bill’s consultation have raised concerns that the remit test is too restrictive. In my opinion, it is essential that the remit provisions are necessarily robust.No one wants to see the daily  sheriff  court rolls  or  those of  the Court of Session  clogged with motion after motion  for remits. That  would seriously undermine the principles of the Bill.”

“The increase in the privative jurisdiction and in time, the introduction of the specialist personal injury court should ensure that cases find their appropriate level in the court system. Expenses will be lower for the parties. Cases shall be dealt with more expeditiously than at present. The specialist sheriffs, in partnership with the profession, will  develop a body of specialist and authoritative case law.  A greater emphasis on case management and improved use of IT will  be introduced by way of court rules and  will  promote  a pro-active, front loaded litigation  that reduces the time spent waiting in court for short straightforward hearings.  At the same time efficiencies  will  be improved in the Court of Session.”

“The Court of Session  will continue to be the forum for high value  and  complex cases. Our hope is that these cases can be dealt with greater expediency as a result of the reforms,  so that cancellations of hearings  because of  lack of judges and/or court time  will be a thing of the past.”

“On the subject of the ‘development of Scots law’, Lord Gill claimed: “I do not expect that there shall be any reduction on the quality of decision making or any adverse effect on the development of Scots law.  It is to the credit of our shrieval bench that  the  great  majority of cases do not result  in  an  appeal to the higher courts.”

“In the main, the quality of decision making is good, and  is complemented by the Judicial Institute and the excellent  training  and support that  it  provides. The reforms as a whole will bring significant benefits to the quality of decision making in the sheriff courts.  The  introduction of the new tier of ‘summary sheriffs’  will  ensure that  summary crime, housing and low value financial claims are dealt with expeditiously at an appropriate level in the court system.”

“The summary sheriff will possess the same level of qualification and experience as sheriffs proper. The  new tier  will  remove a significant amount of business  from the daily work of the sheriffs, allowing them more time to concentrate on the more difficult cases.”

“The Sheriff Appeal Court will provide increased scrutiny in the decision-making and writing process  than under the present system where the  sheriff principal  sits  alone. It will have a greater understanding and insight into the daily workings of the sheriff court than is enjoyed by the Inner House.”

“When one views these aspects of the reforms together with the fact that at present, many  civil  appeals go no further than the  sheriff  principal, it is hoped that few  appeals  will  have  to  be taken from the Sheriff Appeal Court.”

“What opportunity does it present? It gives to every solicitor in Scotland the opportunity to develop skill in appellate advocacy and to develop an expertise that has hitherto been seen as the exclusive preserve of the Bar.”

On the “Right to Counsel”, Lord Gill said: “I accept that these changes shall impinge on the types of cases in which  counsel may be instructed  without  their fees requiring  sanction from the court. I do not accept however, that the implementation of the Bill  will  remove access to justice.”

“Those pursuers who, at present, choose to litigate in the sheriff court as opposed to the Court of Session have received no lesser  form of  justice. I do not accept that it is a requirement for  ‘access to justice’  that litigants are provided with the choice of litigating in a more expensive forum with the requirement that  counsel has to be instructed to represent their interests. Why?  Firstly, access to justice is inevitably and inextricably linked with affordability.”

Lord Mackay of Clashfern recognised that in address that he made to the Royal Society of Arts on that very subject: “There is no doubt that under our present [justice] system cost is a major barrier to using the law. Reducing costs should not be seen as an end in itself nor as an inevitability leading to a second-rate system of justice. Cost effectiveness pursued  in  the right way will lead to a more affordable system  and to my mind is the only logical way to expect access to justice to be improved. I would like to emphasise that message. Affordability is the key to improved access to justice. Affordability to the taxpayer and to the individual.”

The  changes proposed seek to make the system more affordable for the client consumer.  That improves access to justice. Secondly, litigants are not being denied access to the courts, nor representation.

In conclusion, Lord Gill stated to the audience of solicitors: “The  prospects, in my opinion,  should make us optimistic. Our  civil justice system will be  fit  to serve  the  modern society  in Scotland that the previous generation of lawyers would not have recognised  and  will  promote the fundamental principles that I mentioned at the outset.    I am certain that the Law Society and its members shall not only survive the  legislation,  but shall adapt  to it in its  commitment  to excellence.  The reforms provide an opportunity for the profession to diversify, renew itself and to improve upon the  work already undertaken in the  Review. The opportunity is there for the taking.  I urge you all to embrace it.”

There was no mention in Lord Gill’s speech of transparency regarding judicial interests, an issue currently under consideration at the Scottish Parliament by way of Petition PE1458: Register of Interests for members of Scotland's judiciary.

In terms of the lack of a register of judicial interests, litigants in Scotland’s courts currently have no basis to establish whether the judge hearing their case or even a judge involved in a criminal case, should be asked to recuse themselves or not due to conflicts of interest or financial and other interests that members of the judiciary are not keen on declaring openly. Therefore reforms of the courts as currently proposed do not go far enough to allow the public to determine whether cases are being heard fairly or not.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Mail newspaper, and video footage of debates at the Scottish Parliament’s Public Petitions Committee deliberations on Petition PE1458: Register of Interests for members of Scotland's judiciary can be found here : A Register of Interests for Scotland's Judiciary

Quango’s new rulers for our courts : Access to civil justice ‘up for grabs’ as Lord President and ‘usual suspects’ make up new Scottish Civil Justice Council

New justice quango to make rules for Scotland’s unfit for purpose Court of Session, Sheriff Courts. EARLIER this week the latest attempt to improve Scotland’s unfit for purpose, “Victorian” civil justice system was announced by Scotland’s top judge, Lord President Lord Brian Gill, in the form of the new Scottish Civil Justice Council (SCJC), the latest quango from Scotland’s antiquated courts system loaded with lawyers, judges and a mere two consumer representatives, which is charged with improving the rules governing civil justice in Scotland.

The new SCJC, which some legal insiders have jokingly dubbed “mad cow disease for the justice system”, replaces the existing Court of Session Rules Council and the Sheriff Court Rules Council both of which did precious little for Scots access to justice over the decades of their existence, so little in fact, the current Lord President Lord Gill published the Scottish Civil Courts Review in 2009, a two year project which resulted in heavy criticism of Scotland’s civil justice system over which the former two rules councils presided.

The new Scottish Civil Justice Council will take over the rule drafting functions of the former two rules councils and will also have a new, wider, role to advise and make recommendations on the civil justice system. However, any improvements over the earlier arrangements are expected to be measured at a glacial pace, expected to take years, rather than provide immediate relief to Scots stuck in litigation for years, even decades.

Announcing the appointment of members to the Scottish Civil Justice Council, established under the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013, the Lord President, Lord Gill, said: “I am delighted to announce the appointment of members of the Scottish Civil Justice Council. The new Council will be responsible for delivering vital improvements to the civil justice system.

Lord Gill continued : “Each member will bring valuable skills and personal experience to the Council and I am confident that collectively, will be more than capable of meeting the significant task ahead in the implementation of the forthcoming civil courts reforms. An open and competitive recruitment exercise was held for the non-judicial members and I am grateful to all those who applied.”

The composition of the council is provided for by section 6 of Scottish Civil Justice Council and Criminal Legal Assistance Act 2013. The Act states that the Lord President is to appoint at least 4 judicial, 2 advocate, 2 solicitor, 2 consumer representative members and may appoint up to 6 LP members (these are appointments made at the Lord President’s discretion).The Lord President, the Chief Executive of the Scottish Court Service and the principal officer of the Scottish Legal Aid Board are members of the Council by virtue of their respective offices.  One member of Scottish Government staff is appointed by the Scottish Ministers. Judicial, advocate, solicitor, consumer representative members and LP members hold office for three years.

List of Council members:

The Lord President, Mr Eric  McQueen, Chief Executive of the Scottish Court Service, Mr Lindsay Montgomery CBE, Chief Executive SLAB, Miss Jan Marshall, Scottish Ministers’ appointee, Lord Menzies (judicial member), Lord Tyre (judicial member), Sheriff Principal Stephen (judicial member), Sheriff Abercrombie (judicial member), Mr James Wolffe QC (Advocate member), Mrs Sarah Wolffe QC (Advocate member), Mr Eric Baijal (Solicitor member), Mr Duncan Murray (Solicitor member), Mr Ian   Maxwell (Consumer representative member), Miss Lauren Wood (Consumer representative member), Mr Joseph d'Inverno (LP member), Professor Frances Wasoff (LP member)

About the Civil Justice Council

The creation of a single civil rules council for Scotland was one of the recommendations of the Scottish Civil Courts Review.  Many of the review recommendations will need new rules of court and the Scottish Civil Justice Council, which will have oversight of the entire civil justice system, will be responsible for taking these forward.  It will also be responsible for keeping the civil justice system under constant review.

VESTED INTERESTS need only apply : Victorian values of our courts in the dock, yet new Scottish Civil Justice Council quango may end up doing little for Scots access to justice

Outlook is bleak for Scots access to justice as planned reforms appear overtaken by time. AS the sands of time continue to devour what have so far turned out to be many false promises of a new dawn for Scots justice in the 2009 Civil Courts Review, a new quango in the form of the Scottish Civil Justice Council (SCJC) has been created to take on functions from two decades-old bureaucratic, lawyer-dominated Court Service quangos responsible for much of the current mess of Scotland’s courts and which did little for Scots access to justice over the past few years.

Unsurprisingly, recruitment for the new Scottish Civil Justice Council is to include a heavy mix of lawyers, advocates and “suitable individuals who may be appointed at the Lord President’s discretion” (also known as the old tap-on-the-shoulder job offer). Applications for the positions on offer will end noon tomorrow on Monday 15 April, with interviews being held in early May and successful candidates attending the first Council meeting, on Monday 10 June 2013.

Among the mix of lawyers and other vested interests being sought to run the new quango, there will be only two “Consumer representatives” sought for Scottish Civil Justice Council, which will take on the rule drafting functions of the Court of Session Rules Council (established in its current form by Section 8 of the Court of Session Act 1988) and the Sheriff Court Rules Council (established in its current form by Section 33 of the Sheriff Courts (Scotland) Act 1971).

In addition to its rule drafting functions, the SCJC will have a remit to provide advice and make recommendations to the Lord President and the Scottish Ministers on the development of the civil justice system, which was heavily criticised in the 2009 Civil Courts Review report authored by the now current Lord President Lord Gill , who condemned Scotland’s justice system as being “Victorian” and unfit for society. In 2013, it still is.

Vested Interests sought for Justice Quango : Recruitment of Members for Scottish Civil Justice Council

Advocate, solicitor, consumer representative and LP members 6 to 12 appointments available

The Scottish Civil Justice Council (SCJC) will be established in May 2013 when the Scottish Government brings into force the relevant provisions of The Scottish Civil Justice Council and Criminal Legal Assistance Act 2013.  The first meeting of the SCJC is due to take place on 10 June 2013.

The SCJC will take on the rule drafting functions of the Court of Session and Sheriff Court Rules Councils and in addition will have a remit to provide advice and make recommendations to the Lord President and the Scottish Ministers on the development of the civil justice system. The SCJC will in particular be responsible in its early years for implementing the procedural changes to effect the reforms contained in The Scottish Government’s forthcoming Courts Reform (Scotland) Bill, currently being consulted on.

The Lord President is seeking to appoint a minimum of 2 advocates, 2 solicitors and 2 consumer representatives to the Council, and up to 6 LP members (suitable individuals who may be appointed at the Lord President’s discretion).  A summary of the overall membership can be viewed here.

* Members should expect approximately 12 days’ commitment a year and, among other matters, will:

* Develop draft rules for the Court of Session and sheriff court civil proceedings;

* Advise and make recommendations to the Lord President on the development of the civil justice system;

* Develop the SCJC annual programme and report;

* Take into account the needs of court users and potential court users; and

* Co-operate with others in the justice system.

Successful candidates will meet one or more of the criteria in the following areas: legal knowledge and skills; understanding of people and society; knowledge and understanding of the wider justice system and issues affecting it; and personal qualities. 

The Lord President is committed to the principles of appointment on merit and to the well-informed choice of individuals who, through their abilities, experience and qualities match the requirement of the post.  Further details as to eligibility and selection criteria are set out in the Lord President’s Statement of Appointment Practice and candidate information forms.

To apply, please download a copy of the application form and submit it with an equal opportunities monitoring form to scjc@scotcourts.gov.uk. For further information please contact Ondine Tennant at scjc@scotcourts.gov.uk / Scottish Civil Justice Council (Appointments), Parliament House, Edinburgh, EH1 1RQ / 0131 240 6769.

Season’s Greetings from Scotland’s Justice system : Still “Victorian”, still fails society, still costly, greedy, prejudiced & about to get a lot more dictatorial …

Scotland’s Justice system, the most expensive, greedy & unproductive in the entire European Union. SEASON’S GREETINGS to all our readers from all of us at Diary of Injustice. Suffice to say, that Scotland’s justice system continues to be, as the current Lord President Lord Gill once said, “Victorian”, failing society, and as costly & frustrate today as it was twenty, or even thirty years ago, despite the claims of some that changes in Scottish Governments and politics would change our lives beyond all recognition.

If anything, it has got worse, and the consumer organisations which survive among the ruins of London sponsored cuts, and Holyrood laziness, have effectively been muzzled to the point of uselessness, leaving only the country’s media to hold vested interests to account, and expose or report on justice & injustice in Scotland’s disrespected justice system.

Do yourselves a favour, readers, if you have a problem with the justice system, those within it, those politicians who allow it to remain as ridiculous as it is, or those public bodies who fail to regulate it, don't keep it to yourself, go out and publicise it. and support those newspapers & journalists who take the time and make the effort for you. You might just do some good for yourself, and fellow Scots.

TIME TO CALL TIME ON SCOTS VICTORIAN JUSTICE & ANTI-PUBLIC COURTS SYSTEM

The Lord President, Lord Gill, author of the Civil Courts Review. Scotland’s current Lord President, Lord Gill, said in his speech to the Law Society of Scotland’s 60 year anniversary conference in 2009, reproduced in full here  : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But 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. It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice."

Not to put too fine a point on it, Lord President … Coming up on four years on since this was said … It is time. The time is now. Scots are waiting for a justice system which will serve the country, not the needs of politicians and vested interests.

The Sunday Mail’s editorial on Scotland’s Justice system :

Justice must be for everybody.. or nobody

Mail Opinion
By Mail Opinion
23 Dec 2012 08:50

THE recent demand for longer sentences and heavier clampdowns by ministers chasing headlines could alter our faith in the criminal justice system.

Most of the time, he appears to be one of the more straightforward, committed and decent ministers in Alex Salmond’s cabinet.

And then, on a regular basis, he gets his big tackety boots on and blooters some fairly fundamental human rights all over the park.

There are some very serious and potentially alarming issues coming together in our criminal justice system at the moment.

We have Lord Advocate Frank Mulholland, now attending Cabinet meetings, who, rather worryingly, on Friday, claimed the independence of Scotland’s chief prosecutor from politicians was “a state of mind”.

Meanwhile, we have a new, single police force arriving next year with a new, single chief constable, Stephen House. He is a strong and stringent police officer who is unafraid to speak his mind and keen to champion changes to the law to increase conviction rates.

Now, none of these things are necessarily worrying. Taken together, however, the danger of an increasingly politicised prosecution service encouraged by a powerful police chief and backed by ministers eager to appear tough on crime raises very real fears for the checks and balances needed to protect ordinary people from the might and majesty of the law.

We are talking about things like the police’s increasing enthusiasm for scrutinising our mobile phones and emails without the approval of a sheriff or judge.

Things like the need to corroborate evidence before conviction. Things like the abolition of double jeopardy, meaning people can now be tried twice on the same charge.

Now, there are cases to be made for these changes but – and it’s a big but – where opinion is divided, our law-makers must come down on the side of those accused of crime.

These accused men, and they’re nearly all men, are often beneath contempt.

Many are vile and violent without decency or humanity. They contribute nothing and, when found guilty, deserve less.

Every single of them, however, has a right to a fair trial in a justice system where the most basic function is to protect that right. Because if they do not have it, then none of us have it.

The lines are blurring between our police, prosecutors and politicians in Scotland where a fear of crime has been exaggerated and our ministers chase headlines by demanding ever longer sentences and heavier clampdowns.

That makes for bad laws and we need to be wary because the constant chipping away at the pillars of fairness and decency shoring up our justice system will, at some point, chip away at our faith in that system.

Messrs MacAskill, Mulholland and House should be careful what they wish for.

Meanwhile, as the Beastie Boys reminded us so forcefully, there is at least one other right worth fighting for.

So, in that party spirit, from all of us to all of you, have a merry Christmas.

Civil Courts Review TWO YEARS ON : “Victorian” flaws in Scots legal system ‘may last for decades’ as lawyers vested interests stifle justice reforms

Lord Gill’s Civil Courts Review published in 2009 recommended significant reforms to Scots justice system yet little has changed in two years. TWO YEARS ON from the CIVIL COURTS REVIEW undertaken by Scotland’s Lord Justice Clerk, Lord Gill in February 2007 which culminated in his report published in September 2009 recommending significant wide ranging reforms to Scotland’s antiquated civil justice system, Scots are finding access to civil justice & access to courts has, in reality, changed little despite much talk at the Scottish Parliament on the report’s reforms and several amateur attempts by the Scottish Government to legislate wider access to justice, all of which have been watered down in the face of almost warlike hostility from lawyers worried their profit margins would sink as people chose other forms of getting to court.

Sadly, the stinging criticisms of Lord Gill, who himself branded Scotland’s civil justice system as “Victorian”, failing to deliver efficiency of justice or Scots accessibility of justice appear to have been lost in the mists of time with little progress on the Lord Justice Clerk’s proposals to rectify the justice system’s ills, yet those consumers in Scotland who face the torture of using Scotland’s expensive, seemingly endemically dishonest legal profession to get to court, would rather the proposed reforms be speeded up than having review after review, and then as is now the case, reviews of the reviews.

Last year, on the first anniversary of the Civil Courts Review, and the blaze of publicity which surrounded its publication, we saw little change, almost a few steps backwards as I reported last August 2010, here : Civil Courts Review one year on : Scotland’s out-of-reach justice system remains Victorian, untrustworthy and still controlled by vested interests

Another year has now passed, yet the only movement on Lord Gill’s proposals by the Scottish Government, was to launch another review, as I reported earlier in March, here : Scottish Government delay reforms on costs of litigation & access to justice as Minister announces 18 month 'time wasting' review by retired sheriff, announced after I reported in January Civil Justice Advisory Group calls for radical reform of Scotland’s civil justice system, says people should be at the heart of Scottish civil justice

I reported on the ‘progress’ of the Sheriff Taylor review (the review of the review), earlier in July, here : Lawyers can talk, yet fee paying clients & court users remain shut out of Scottish Government review of the costs & funding of litigation in Scotland. A consultation was to be published on the Taylor Review website HERE although none has yet appeared.

Clearly, Civil Justice Reform and giving Scots control over their own access to justice & legal services, instead of the present arrangement where the legal establishment and lawyers control & decide which Scots have access to justice, is not a priority for the Scottish Government.

Indeed, it could well be argued the Scottish Government are delaying for as long as possible, most of the access to justice reforms because they will put power into the hands of Scots to resolve their legal issues & court issues much faster, at less cost, and with less potential for failure, than the present “Victorian” system offers us. The reason for the delays ? Well, its not too difficult to see if Scots are able to resolve their legal issues faster and cheaper, the legal profession are going to make a lot less money out of their clients.

Reminding readers once again of those words, Lord Gill, in his speech to the Law Society of Scotland’s 60 year anniversary conference last year, said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But 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."

He continued : "It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost.”

“Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice."

"Unless there is major reform and soon, individual litigants will be prevented from securing their rights, commercial litigants will continue to look elsewhere for a forum for their claims, public confidence in the judicial system will be further eroded, Scotland’s economic development will be hindered, and Scots law will atrophy as an independent legal system.”

“Major reform and soon”, as Lord Gill said himself, has not happened. One may rightly being to wonder if Lord Gill’s reforms are ever expected to occur while the vested interests of money makers in the legal profession have their way. September 2010 has come and nearly ended, yet, again, little has changed for those in Scotland who need a justice system fit for the 21st Century, rather than what we currently have, the “Victorian” version controlled by vested interests from the legal establishment.

An official from one of Scotland’s consumer organisations admitted today he was ‘despondent’ about any major reforms to Scotland’s civil justice system over the next ten years. He said : “There is a general feeling the civil courts review is dead & buried along with any chance to launch major reforms to civil justice in the next decade.I don't believe this is a priority for the current Scottish Government and I don't think it will be one for the next”

He continued : “It’s just not in the interests of those earning money out of the justice system to see a different playing field where consumers can get easier, cheaper & faster access to justice in Scotland. Lawyers keep claiming if such reforms came in, they would go out of business, however lawyers dont own the justice system, they just use it to make money. Until we get away from the idea the legal profession owns & operates the justice system and the courts as their own business, there will be little chance of constructive reform of civil justice in Scotland.”

Readers can download the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links :

Volume 1 Chapter 1 - 9 (Covers McKenzie Friends, procedures, advice etc, 2.99Mb)

Volume 2 Chapter 10 - 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb)

Synopsis (215Kb)

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 however the story so far is that Scots do not have control over their own access to justice, and Scotland still has a justice system which is Victorian, prejudiced, politicised, controlled by vested interests & definitely a little crooked.

The Law Society from Hell : Scots face decade of closed shop, low quality & high cost crooked lawyers as solicitors demand access to justice monopoly

As predicted, Law Society of Scotland’s ‘one profession’ conference result : More client rip-offs on the way. ANOTHER DECADE OF LEGAL RIP-OFFS via poor regulation, consistently poor quality legal services, the worst levels of access to justice in the entire UK & the lowest possible form of consumer protection when things go wrong between clients & solicitors, is on the way for unsuspecting & unwary consumers of legal services in Scotland, according to the Law Society of Scotland ‘new strategy’ for the next decade up to 2020, published earlier this week as a result of the society’s annual conference : “Law in Scotland- One Profession”.

According to the Law Society’s Press Release following its annual conference, the society stated its new strategic aim as 'to lead and support a successful and respected Scottish legal profession' in its 'Towards 2020' strategy document and has set out five principal objectives against which it will assess and measure its performance over the coming years.

The latest ‘key objectives’ announced, which remain unachievable even after SIXTY YEARS of the Law Society of Scotland’s existence, are :

Excellent solicitor professionalism and reputation (Ignoring huge levels of fraud & theft involving clients funds, legal aid fraud, involvement in organised crime, tax fraud, criminality, etc is on the rise within the profession)

Law Society of Scotland members are trusted advisers of choice (Trust a member of the Law Society of Scotland, kiss goodbye to your life as you knew it before legal difficulties, home repossession, faltering finances, personal bankruptcy & family break up all set in as a result of clients misplaced trust)

Law Society of Scotland members are economically active and sustainable (Economically active enough to inflate fee notes & play clients along for years, charging for work which in most cases never leads to a solution to the client’s legal problems)

The Law Society of Scotland is the professional body and regulator of choice (Another decade of corrupt regulation of complaints against crooked lawyers where solicitors cover up for their colleagues)

The Law Society of Scotland is a high performing organisation (High performing for solicitors, non performing for clients)

The Law Society of Scotland’s vision for next 10 years - we should expect more multi-million pound crooked lawyers. The now familiar annual claims from the Law Society of Scotland cut little truth in terms of reality, as the levels of frauds committed by crooked lawyers against their clients are significantly on the rise in Scotland, doubtless due to the recession & general downturn in business which has brought about many new creative ways by law firms to rip off clients, including use of Scotland’s Sheriff Courts to pursue clients for alleged fees due for non existent work on court cases which commonly never see a court room or a legal remedy.

Law Society President Cameron Ritchie. Commenting on the Law Society’s desire to remain in charge of exactly who in Scotland it decides should have access to justice, the Society's current president, Cameron Ritchie, said: "The pace of change for the legal profession, like others, has been tremendous in recent years and of course there has been the additional challenge of the economic downturn. It's vital for any successful organisation to take time to step back from the day to day operations and look at where we are headed. We must plan what our key priorities should be and how we can best anticipate future opportunities and challenges in order to properly support the profession, which in turn helps our members better serve their own clients, now and into the future."

The Law Society further stated that a review of its work was initiated by its Council and the final strategy, approved by Council members last month, has had input from groups of members, faculties and firms, as well as senior management and staff at the Society. The Council has considered economic, social and political change which is likely to impact the legal sector and the opportunities these change could bring in addition to any challenges for members.

The statement did not make any mention the Council of the Law Society of Scotland was branded “fundamentally dishonest at its core” by a now former Council Member, John McGovern who, it is claimed “has been critical of the Society's policy on ABS, and has campaigned against the dual functions of representation and regulation being vested in the Society, amongst other issues.”.

Law Society President Cameron Ritchie again : "The outlook for the next few years remains challenging and we know that solicitors will continue to feel the effects of a tough economic climate. Social change will also impact on our members as consumers of legal services become increasingly well informed and will seek the best and most cost effective services available to them. This makes reputation and quality assurance for solicitors and their firms even more important. As a professional body, it will be our role to promote a deeper understanding of the solicitor brand to the public.

Mr Ritchie said the Law Society was now looking to bring in more female solicitors into the profession. he continued : "The legal sector itself is changing and we are seeing a younger profession with the gender balance swinging towards females. There are also pressures on some specific areas of legal practice, such as the criminal bar, and a growing number of 'employed status' solicitors."

Fergus Ewing, Communities Minister in 2010 was made a laughing stock after Law Society forced him to announce major pro-lawyer changes to a wider-consumer-choice-in-legal-services law. The Law Society also praised the Legal Services (Scotland) Act 2010, (a much watered down out version of the UK Legal Services Act 2007) which took the SNP Scottish Government three years longer than Westminster MPs to consider, and was only passed after the Law Society heavily amended its intentions, at one point turning Community Safety Minister Fergus Ewing into a shrivelled-up laughing stock after Mr Ewing was forced by the Law Society to withdraw major parts of the reforming legislation which had intended to put consumers in charge of their own access to justice although not to the same degree as consumers in England & Wales enjoy. Such were the amendments ordered by the Law Society to the Scottish Government’s legal services bill, the latest timetable from the Scottish Government has indicated that alternative business structures are unlikely to become a reality until at least summer 2012.

An earlier article reporting on how the Legal Services (Scotland) Act was passed, is here : 'Choice' but not as we know it : Legal Services Bill passed, Scots access to justice remains mostly under Law Society's control and the chequered history of the Legal Services Bill at the Scottish Parliament can be read here : Legal Services Bill for Scotland, giving consumers no access to justice.

More examples of how the then Community Safety Minister Fergus Ewing danced to the tune of the Law Society of Scotland & its members, can be found HERE, HERE, & HERE.

Law Society President Cameron Ritchie added: "In addition to this we also have to be aware of the political context in which we work and the changes coming down the track which will affect the profession. Given the cross party support for the Scotland bill we can predict further devolution of powers to the Scottish Parliament and we know there is strong political will to see reforms proposed by Lord Gill introduced. We await the outcomes of the ongoing reviews by Lord Carloway and Lord McCluskey. Within such a period of change, we want everyone, whether they are a solicitor or member of the public, to be able to understand our organisation's purpose and vision for the next five to 10 years."

The Scots public do not need to wait to understand the Law Society of Scotland’s purpose & vision for the next ten years, as the last two decades of record levels of client fraud & corruption within the Scottish legal profession, held together by the Law Society and its persistent crop of leaders who ensure the legal profession’s vested interests come before consumers, serve as warning from the past the same will continue until fully independent regulation of legal services is a reality, and anti-consumer closed shop institutions such as the Law Society of Scotland are consigned to the dustbin if history.

Lay representatives able to speak on behalf of party litigants in Scottish courts : Your views required by 31 August 2011 for consultation

Lord President Lord Hamilton considers talking lay representatives in Scotland’s Courts, strict rules & no pay required. LORD HAMILTON, Scotland’s chief judge, the Lord President, is to consider how LAY REPRESENTATIVES with the ability to make oral representations on behalf of party litigants who cannot obtain the services of a lawyer will function in Scotland’s Courts after rules allowing ‘speaking’ lay assistants eventually come into force sometime in 2012. Plans to allow the access to justice reforms have already seen proposals from a judge led working group which include even stricter regulation than appears to be applied to solicitors, the banning of any expenses being recovered by party litigants represented by lay assistants, and the notable capital offence forbidding of any payment to lay representatives, the latter move encouraged by Scottish lawyers worried they may lose out on client fees.

The reform allowing ‘speaking’ lay assistants comes after the Court of Session was given power in Sections 126 & 127 of the Legal Services (Scotland) Act 2010 to make rules permitting a lay person to make oral submissions to the court on behalf of a party. The provisions for talking lay representatives come into force on 1 September 2011, however the rules governing their use & conduct will not be enacted until sometime in 2012, such is the mediocre pace of change in Scotland’s “Victorian” justice system.

To assist the Lord President Lord Hamilton & the Scottish Court Service in their consideration of how talking lay representatives can be ‘managed’ in Scotland’s courts, a working group was established, chaired by Lord Pentland. Its members are drawn from the Court of Session and Sheriff Court Rules Councils and the Scottish Government.  Its aim is to present policy proposals, accompanied by suitable amendments of the rules of court, to the councils by the end of October

Lord  Pentland’s working group has now published its consultation, to which consumers are urged to participate in, to give balance to the weight of proposals, and I dare say, objections from the legal profession who have already made their feelings known about increased competition in the  courts where members of the public can potentially save themselves tens of thousands of pounds by using lay representatives rather than expensive legal representation which, in particular types of cases, does not seem to function in the client’s best interests.

Lord Pentland’s working group’s analysis of the current provisions in the Legal Services Act note some important points consumers & court users may wish to consider raising in responses to the consultation :

The new provisions only permit the making of an oral submission by a lay person. They do not facilitate any wider ability for a non-lawyer to represent a party, such as is permitted by section 36(1) of the 1971 Act in relation to summary causes.  It is noted, accordingly, that the submission of documents in support of an oral submission, such as supporting written submissions or a rule 22 note in ordinary actions in the Sheriff Court, will still require formally to be performed by the litigant.

The group also notes that the new  provisions do not afford any scope for a lay person to engage in the examination of witnesses.  This falls beyond the concept of an oral submission.

The group observes that the new  provisions permit a lay person to make submissions only “when appearing  at a hearing…along with a party to the cause”.  Given that only natural persons can appear as parties, it is clear that the new provisions do not extend  to permitting the making of an oral submission on behalf of a company or other non-natural person.

The group considers that a lay  representative must be regarded as distinct from a person affording lay assistance under the new rules recently made to that end (Chapter 12A of the Rules of the Court of Session and rule 1.3A of the Ordinary Cause Rules).  In some cases a lay assistant might also be considered suitable to be a lay representative, but this would depend on the particular circumstances

Assistance and representation would be subject to the control and discretion of the court and permission would be given only if the court was satisfied that this would help. The court would have to be satisfied as to the character and conduct of the proposed representative and would be at liberty to withdraw permission for that person to act for the party.  In particular, the court would wish to be satisfied that the McKenzie friend was not offering his services for financial reward.”

Lord Pentland’s group favoured adopting the test recommended by Lord Gill’s Civil Courts Review, namely that the test for granting an application should be that it would “assist the court”. This differed  from the test in relation to granting an application for lay assistance, which was that it should be refused “only if it would be contrary to the efficient administration of justice to grant it”. That test is appropriate given the particular role of the lay assistant. But in relation to lay representation, the test should be a somewhat tighter and more focussed one.

The working group also favoured including in the rules a requirement that an application for lay representation should be made in advance of the hearing concerned.  It was felt that the interests of the other party or parties needed to be protected.  It was also felt that such an approach was warranted by the need for the efficient disposal of business as well as ensuring that the person was a suitable person to make an oral submission

The group discussed the form which the application should take in the ordinary case where it was made in advance of the hearing. There was some resistance to the suggestion that a written motion should be required in the Sheriff Court on the basis that this would give rise to a fee, though it was difficult to see how the application could be made without a motion.  It was noted that it would be open to the Scottish Government to amend the fees order if the view was taken that charging a fee was inappropriate.  In the Court of Session, the model of Chapter 12A should be followed – that is, that there would require to be a motion accompanied by a suitable form

The group discussed whether it would be possible in the rules to allow a standing authorisation for a lay representative in relation to all hearings in a case; or for representatives from a certain organisation in all cases.  However, it was noted that it was not the intention of the power conferred by sections 126 and 127 to create a class of authorised lay representatives (something the Scottish Courts & legal profession are eager to block at all costs) and the question of whether the making of a submission by a particular person in a particular hearing would assist the court required to be judged according to the circumstances of the hearing itself.

Finally the question of payment for lay assistance was debated once again, a matter generating strong opinions within the legal profession who see paid lay assistants as a threat to the business & extortion profit models of Scottish law firms.

Unsurprisingly, Lord Pentland’s working group came down hard on the remuneration subject, as eager as the Court of Session to stamp out any thought a lay assistant could be paid for their services in a Scottish court, while in England & Wales, remuneration, at least for McKenzie Friends has been allowed and is now even case law in : [N (A Child) [2009] EWHC 2096 (Fam)] to support the right or entitlement of a McKenzie Friend to charge or at least receive some form of remuneration for their services.

On the remuneration subject, Lord Pentland’s working group agreed that it was appropriate for the rules to prohibit the lay representative from receiving remuneration, directly or indirectly, from the litigant.  This was consistent with the position reached in relation to lay assistance. However, it was claimed this prohibition on remuneration for lay assistants “was not intended to operate as a barrier to representation by remunerated members of advice agencies.”

As with lay assistance, the working group was of the view that:

(a)  permission to make an oral submission should be automatically withdrawn in the event of the litigant obtaining legal representation;

(b)  the court should be able to withdraw permission in the event that it considered that the test for permitting it was no longer met or that the person was no longer suitable (though this would not of course apply once the submission had commenced);

(c)  where permission was granted:

(i)  the litigant would be permitted to show the representative any document (including a court document);

(ii)  the litigant would be permitted to impart to the representative  information without contravening prohibitions on its disclosure but the representative would then be subject to the same prohibitions;

(d)  any expenses incurred by the litigant as a result of the representation were not to be recoverable expenses in the proceedings.

The full consultation can be downloaded from the Scottish Courts website HERE (pdf)

YOUR VIEWS are sought on the initial policy proposal and on any other matter which is considered relevant. You may also wish to consider asking your MSP to write into the consolation giving their views on the subject. Views should be directed, in writing, not later than 31 August 2011 to:

The Lord President’s Private Office
Parliament House
Edinburgh  EH1 1RQ
or by email to: lppo@scotcourts.gov.uk

Responses will be made available to the members of the working group and also to the members of the Rules Councils. They may also in due course be published. Please indicate in your response if you do not wish it to be published.