Calls for OFT to fine lawyers for market manipulation as Law Society & solicitors split on reforms to legal services

Firstly, to all of you who have recently send me information on your cases, I am progressing through them and will get back to you as soon as possible.

While trying not to be sidetracked on the debate into independent regulation of the legal profession in Scotland, I note this week, the media reports there are breaks between several legal firms and the Law Society of Scotland in terms of the profession's policy towards the deregulation of legal services in Scotland

It is of course, good to see diverging views from the legal profession on issues, where in the past, the Law Society of Scotland and it's inner circle of egos & dictators ruled the debate and how policy would be implemented against such major changes as the OFT now recommend

I can't but help wonder though, if this is a rerun of last year's strikes by the regional bar associations over the allegedly poor legal aid payments system, where it appeared that parts of the legal profession, namely the family law solicitors were taking initiatives on their own to boycott legal aid cases for increased legal aid payments, while the Law Society of Scotland supposedly stood by in the background, officially encouraging discussions, rather than strike, but all the while actually helping to arrange the case boycott strategy and sympathetic media publicity for the lot of legal aid lawyers, while making sure they slipped in a little part about requiring to retain the ability to control complaints against their legal colleagues ...

You can read some of the issues which cropped up in the legal aid case boycott here : Lawyers protests over low legal aid fees revealed to be fake as Law Society's own research points to increase .. so take note people, nothing is as it appears with the legal profession when it comes to policy being discussed in public ...

Getting back to the deregulation of legal services in Scotland, which is only starting to come into action now, after challenging FOI requests, revelations of interference from a former Lord Advocate, and of course the OFT making it's recommendations on the Which? 'super complaint' to open up access to justice, there remains significant questions to be answered on why, for the past 17 years, the relevant parts of Scottish Law which we have had sitting on the books since 1990 via the Law Reform (Misc Provisions) (Scotland) Act 1990, specifically Sections 25-29 were never enacted.

Of course, the simple answer to why Sections 25-29 were never enacted until March of 2007, lies with the Law Society of Scotland and the rest of Scotland's legal profession.

Simply - the legal profession didn't want the access to justice laws enacted, because it would destroy their monopolistic control over access to legal services, where up until now, anyone requiring legal services or needing access to the courts, must go through either an advocate or solicitor. With billions of pounds at stake in the business model of legal services in Scotland, there is little wonder the legal profession was protecting it's market monopoly for the past 17 years.

The planned opening up of access to legal services in the Law Reform (Misc Provisions) (Scotland) Act 1990 seems never to have had a champion of it's advantages .. the public had never been appraised of the intentions of the act to their full benefit ... the Scottish Legal Services Ombudsman had never made much comment on it either (despite the office of the SLSO actually being created from the same piece of legislation), and of course, successive administrations at the Scottish Executive & Scottish Office before it, failing to tackle the planned implementation of the reforms ... with even a serving Lord Advocate daring to interfere in the public's general right of access to justice, suggesting the reforming parts of relevant law be repealed.

However, now that things are out in the open, due in no small part to the campaign for independent regulation of the legal profession, the debate on access to legal services rages just as much as calls to completely remove any complaints & disciplinary procedures from the Law Society to the new Scottish Legal Complaints Commission - and that is a good thing, because it is clear the legal profession itself has stifled debate on tinkering with it's monopolistic business model for the past 17 years.

The Herald newspaper reports there are splits developing between some of the 'top law firms' and the Law Society of Scotland & Faculty of Advocates on how to proceed with the 'Clementi Reforms' which have come into force in England & Wales.

Good, it's about time the membership of the legal profession took a more proactive and independent view of things from the Law Society of Scotland, which after all, has led the Scottish legal profession to it's lowest standing in public esteem ever, with ever rising levels of complaints, poor standards of service, and an almost suspicion of any service on offer at all, given the lack of honesty, transparency & accountability which the public have long noticed over how lawyers do their business.

However, is this 'split' with the Law Society on the question of opening up access to legal services, genuine ? or purely for public consumption, while behind closed doors, the 'leading lights' of the Law Society & legal firms meet to carve up market control for themselves yet again, simply under another guise ....

The Law Society, particularly Douglas Mill, it's infamous Chief Executive, are known opponents of opening up access to legal services, and despite Mr Mill appearing on BBC News last week to 'welcome in the changes' with gritted teeth... the Law Society's underlying opposition to opening up the legal services market in Scotland remains as strong as ever .. with new tactics being adopted to control the qualifications needed to enter the legal services market ... currently controlled by, yes, the Law Society of Scotland.

There is also the question then of what the OFT should now do, in the wake of fairly conclusive evidence there has been market manipulation of legal services in Scotland for a significant period of time.

Last week, the OFT fined British Airways for market manipulation & price fixing... and since the legal profession has been engaged in the same actions for a much longer period of time - denying access to justice to those who have tried to get a lawyer to sue a lawyer, or pursue financial claims for loss against the actions of their solicitors, the OFT should now step in and fine the Scottish legal profession for their insidious market manipulation on access to justice.

In all of this debate & counter debate on access to justice, there has been no mention yet of the desire to tackle the sins of the past - where the membership of the legal profession has supported, or at least, allowed, the Law Society of Scotland to prejudice complaints to such a degree as to cause wholesale injustice to solicitors clients, ruined lives, lost health, lost homes & property, lost estates, lost funds, lost lives ....

Before the public can trust the legal profession again with honesty, transparency & accountability, there must be a genuine effort made to resolve the many cases of injustice that the legal profession itself has caused to thousands of clients over the years .. and if the legal profession itself doesn't want to put right those sins of the past, the likes of the OFT should take action to force such a move.

Herald article follows :

Top firms and Law Society split over plan to boost competition

IAN FRASER August 06 2007

A wedge has been driven between Scotland's largest law firms and their regulator, the Law Society of Scotland, over whether the country's legal services market should be opened to competition.

The rift became public following the publication last week of recommendations on lifting restrictions in the market for legal services in Scotland by the Office of Fair Trading. The OFT effectively gave the Scottish Executive until the December 2007 at the latest to come up with concrete proposals for reform of the legal services market.

Larger firms in Scotland, including Dundas & Wilson, last week told The Herald they warmly welcomed the OFT's recommendations - and, indeed, confirmed that they had been instrumental in shaping the consumer watchdog's thinking.

Alan Campbell, managing partner of Dundas & Wilson - which with 600 employees and annual turnover of £60.8m, is Scotland's largest law firm - said that he attended a high-level meeting with OFT officials alongside senior representatives from law firms McGrigors, Maclay Murray & Spens, Shepherd & Wedderburn and Pagan Osbourne six weeks ago.

He said that at the meeting, held on 13 June, there was "total unanimity" from the solicitors present. He said they supported having a level playing field between Scotland and England on deregulation of the legal profession and argued that anything else would be potentially both anti-competitive and against consumers' interests.

"At its heart, what we want is for lawyers to be able to share profits with non-lawyers subject to suitable regulatory safeguards," Campbell added.

What was happening instead was vested interests were working to ensure the current closed shop' is maintained said Campbell. He went on to attack the key plank in the arguments of Roy Martin, dean of the Faculty of Advocates and Douglas Mill, chief executive of the Law Society of Scotland.

Both have said that Scotland's legal services market is different from that in the rest of the UK and, therefore, requires different policies and structures. However, Campbell said: "Anyone who pretends that the market for legal services is substantially different in Scotland from that in England and Wales is simply kidding themselves. Jurisdiction on its own cannot define a market. If it does, it is anti-competitive."

He added that to claim that the services provided by law firms are in any way unique and incapable of being replicated elsewhere is "a fallacy."

Campbell questioned earlier claims from the Law Society of Scotland that a super-complaint from consumer advocate Which? was premature.

"In my view it was very timely indeed. Law firms need time to plan ahead and to mobilise," he said referring to the argument used by some that, since reforms intended to sweep away restrictive practices in the legal profession in England and Wales, do not take effect until 2010-11, there is no need for regulators and politicians in Scotland to act now.

"We need to know what the policy is going to be in Scotland, so that we can ensure we can make appropriate plans that ensure the sustainability of our own businesses," said Campbell. "There is already divergence between England and Scotland and each day it gets wider."

Asked if the Law Society's stance on deregulation smacks of protectionism, Campbell said it was, "difficult to see it otherwise".

Colin Gray, managing partner of McGrigors, echoed some of those sentiments. He said: "McGrigors welcomes the OFT's recommendations, which will help to create a level playing field across the UK legal market. Such liberalisation will enable providers of legal services to gain access to more capital, attract and retain talent and develop new service lines.

"What is important is that legal firms operating in the Scottish market are able to innovate and grow, as well as compete fairly with peer firms operating throughout the UK. We must avoid limiting choice for clients, which in turn may have a negative impact on the region's economy."

Alistair Morris, chief executive of Pagan Osbourne, also said he welcomes the OFT's recommendations. He has already said that he believes the implementation of Clementi reforms in Scotland would revolutionise the legal profession for the better.

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

Campbell implied that for the Law Society to launch another "talking shop" on the issue of alternative business structures on September 28 is too little, too late. He said: "The OFT has effectively said to both the executive and the Law Society that they must up their game. However, they don't really appear to have got the message yet."

Mill, chief executive of the Law Society of Scotland, said: "What we must ensure is that Scotland seeks its own solutions and that access to justice and protection of the public remain core to any plans for reform.

"We are now planning a second conference in Edinburgh on September 28 to explore the opportunities which the creation of alternative business structures could bring to Scottish law firms, while also examining the regulatory issues they may present. We intend to bring forward our ideas on these issues later this year.

"We have continued our discussions with the Scottish Executive on the future of legal services in Scotland and Justice Secretary Kenny MacAskill has already spoken about Scotland's law firms being able to compete outwith their borders as well as within' and that change is necessary."

MacAskill and the Executive have 90 days to outline their approach to remove restrictions in Scotland.

Sean Williams, the OFT's executive director said: "I hope the Scottish Executive can work with the profession to remove restrictions that, in our view, are unnecessary and prevent solicitors and advocates from innovating to meet the needs of consumers."

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

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

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

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

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

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

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

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

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

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

(5) There is no pressure for implementation

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

RAHAT NAWAZ Private Secretary CROWN OFFICE 24 June 1997

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

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

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

Why do I say that ?

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

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

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

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

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

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

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

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

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

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

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

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

Scottish Executive fails to block FOI disclosure on records of restricted access to Courts

Despite giving us the Legal Profession & Legal Aid (Scotland) Bill, which brings independent regulation to Scotland's entirely corrupt legal profession, the Scottish Executive put up a fight against an FOI request made by Mr Bill Alexander for the release of correspondence & material surrounding the failure to enact parts of legislation sitting on the statute books which would have opened up the courts to those other than solicitors & clients.

The Executive duly thought the release of such information, was an appalling idea .. appalling, since the material in question, being correspondence between Ministers, elements of the legal profession, and the governing body of Scottish lawyers - the Law Society of Scotland, could give the impression to everyone, that there was a collusion going on for years between the Executive & the lawyers to keep everyone else out of court and maintain a monopoly on legal services - which is in fact, what happened.

If it had been a member of the public trying to get legal representation to break loose a disclosure of papers relating to the restriction of legal markets, they wouldn't even have been able to secure legal representation - so Mr Alexander, the Herald newspaper, and the rest of us are lucky Mr Dunion was there to do it for us.

No such difficulty for the Scottish Executive though - the legal profession provided their best to defeat the FOI disclosure request (at top fees too no doubt), but m'luds felt a bit honest yesterday and found in favour, again, of FOI.

I wonder how much Richard Keen & his team cost the Executive for this ?

I covered the start of Bill Alexander's case here : Scottish Executive thought to be blameworthy for allowing restrictive practices in legal service

Bill Alexander also has a related petition into the Scottish Parliament, which can be viewed at this link : Petition PE1021

Petition by Bill Alexander calling for the Scottish Parliament to investigate (i) the availability of solicitors prepared to act against other solicitors in cases of negligence or inadequate service; (ii) the role of the Law Society in such cases; and (iii) the impact, both physical and financial, of such cases on the complainer.

Rumours seem to indicate today, the legal profession demanded the Scottish Executive fight the case, as the lads at Drumsheugh Gardens, and those over at the Faculty of Advocates, definitely did not want any evidence revealed which may indicate a legal profession stitch up over legal services & restriction of business markets.

A well placed source who contacted me earlier this morning, informed me the Law Society had also tried to insist any correspondence from itself to the Executive should be exempt from the FOI request, as the Law Society of Scotland has an exemption from FOI !

I doubt Kevin Dunion, the FOI Commissioner will be having anything of that one though .. but only time will tell on what is published ... and if there is anything missing in the trail of correspondence, ministerial meetings with the bosses & leading [crooks] lights of the legal profession .. I'm sure it will be down to some politicians & leading crooks of the legal profession getting together to protect their own fiddles of the law.

There seems to be no doubt then, the present Scottish Executive, and it's previous incarnation, the Scottish Office, colluded with the legal profession to form an unofficial policy of restricting access to the courts & maintaining the monopoly of rights to legal representation by forcing the public to use members of the Law Society of Scotland & Faculty of Advocates.

More importantly though, as can be seen by Mr Alexander's petition to the Scottish Parliament, there is also little doubt among critics & campaigners against the decades of injustice practiced by the Law Society against members of the public, that the Executive has assisted the Law Society's clearly prejudicial policy of obstructing & denying legal representation to any client trying to raise a claim of negligence against a Scottish solicitor.

Maybe we should be asking which politicians got cheap deals on house & land purchases & other legal services, for keeping these laws from being enacted ... I'm sure there are a few trees to be shaken on that one .. all things being corrupt, that is.

Just a quick word on my recent articles.

My take on the exposure of the legal aid strike by lawyers as being fake got me in a wee bit of bother. I'm talking about this article : Lawyers protests over low legal aid fees revealed to be fake as Law Society's own research points to increase

Apparently, the Law Society are "looking for me to give me a good seeing to" .. Well, I've heard nothing yet, but if any threatening letter comes in, of course, I will publish it .. and if there's any polonium in my sushi, I will be calling the Met !

Similarly, Marsh & the Royal & Sun Alliance PLC are a wee bit upset over my comments on the Master Insurance Policy of the Law Society, and my exposure of their vast web of insurance relationships with the professions, which I wrote about here : Corrupt Insurers of the Scottish legal profession linked to Scottish Executive

Again, if the threatening letter arrives, I will publish of course .. but I can't see how there can be any denials .. after all, what I wrote is all true .. and there's quite a bit more scandal to go with it !

Anyway, read on for today's Herald report on Mr Alexander's FOI case - and remember to support Petition PE1021 at the Scottish Parliament.

I have my own petition also going in over some related matters .. which I will report to you in due course.

http://www.theherald.co.uk/politics/news/display.var.1142179.0.0.php

Court ruling triumph for FOI
PAUL ROGERSON, City Editor January 24 2007

The Scottish Executive has failed with a landmark bid to block the release of highly sensitive documents explaining why Scotland's "closed shop" for legal services has never been opened up to competition.

A Court of Session ruling yesterday should force the disclosure of correspondence on the subject between senior politicians, lawyers and officials.

They include the late First Minister Donald Dewar, Deputy Prime Minister John Prescott and former Lord Chancellor, Lord Irvine of Lairg.

In a 26-page ruling, the Lord President, Lord Hamilton, together with Lord Nimmo Smith and Sir David Edward, dismissed the executive's arguments that certain documents were exempted from disclosure under the freedom of information legislation.

They made the same ruling in a second case in which the executive refused to disclose documents, requested by The Herald, concerning plans to dump waste in a protected Scottish quarry.

Both cases are a triumph for the Scottish information commissioner Kevin Dunion, who had ordered ministers to publish the documents.

Mr Dunion welcomed the decision, saying: "This is an important judgment in my favour. The court has agreed it was wrong of the executive to conclude that it would be harmful to release information which it characterised as belonging to a class or type - for example, advice to ministers - without regard to the content of that information. I have consistently maintained this is not what parliament intended."

The decision is also a victory for Bill Alexander, a longstanding campaigner for wider consumer access to legal services. Last year, Mr Alexander used freedom of information legislation to seek disclosure of ministerial correspondence and memoranda from the past decade concerning the enduring ban on people other than solicitors and advocates being paid to represent clients in the Scottish courts.

"I am pleased the law has been clarified. Hopefully, everyone can now move forward in getting greater access to justice for the people of Scotland," he said.

Here's the shorter Scotsman version .. with a little debate going ...

http://thescotsman.scotsman.com/politics.cfm?id=121772007

Court defeats for ministers

SCOTTISH ministers yesterday failed in the country's highest court to prevent the release of documents which had been sought under the Freedom of Information Act.

In two cases heard in the Court of Session, rulings against ministers by Kevin Dunion, the Scottish Information Commissioner, were upheld.

The cases involved information on why legislation passed in 1990, designed to promote competition in the provision of legal services, had not been brought into effect, and why ministers had decided in 2004 not to "call in" a planning application for a waste disposal and ecological conservation area at Treane Quarry, north Ayrshire.

... and here is the Press Release from the Scottish FOI Commissioner,

http://www.itspublicknowledge.info/resources/media/pressreleases/pressrelease25.htm

News Release: 24 January 2007

Commissioner welcomes Court ruling in landmark freedom of information case

The Scottish Information Commissioner today (24 January 2007) welcomed a landmark Court of Session ruling which upheld his decisions in relation to two appeals brought by the Scottish Executive under the Freedom of Information (Scotland) Act 2002 (FOISA).

The ruling concerned two separate decisions issued by the Commissioner, in which he found that the Executive had acted incorrectly in withholding specific information from release. One case involved documents concerning legislation passed over 15 years ago, part of which the Executive had still not carried into effect in Scotland. Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, if implemented, would allow professionals, other than advocates and solicitors, rights to conduct litigation on behalf of members of the public, as well as rights of audience in the courts.

In bringing its appeals to the Court, the Executive argued that the Commissioner had wrongly interpreted FOISA when considering the content of withheld documents on an individual basis. The Executive argued that certain types, or “classes”, of documents should automatically fall within the scope of particular FOISA exemptions.

Following its consideration of the case, the Court rejected the arguments put forward by the Executive. In reaching this conclusion, the Court described the “class” arguments put forward by the Executive as “ill-founded”, and concluded that the Commissioner’s methodology of considering the specific content of individual documents, and the potential impact of release, was correct and appropriate. A number of other criticisms made by the Executive were also rejected by the court. As a result, the Court refused both of the Executive’s appeals.

Kevin Dunion, the Scottish Information Commissioner, said:

“This is an important judgement in my favour. The Court has agreed that it was wrong of the Executive to conclude that it would be harmful to release information which it characterised as belonging to a class or type, e.g. advice to Ministers, without regard to the content of that information. I have consistently maintained this is not what Parliament intended and is not what the Freedom of Information (Scotland) Act allows. In my view, the effect of the release of such information can only be gauged by considering the content. I am pleased that the judgement clearly supports my position.”

The Commissioner added:

“At the heart of these cases is whether the public is given access to information which allows them to understand why decisions have been arrived at. With regard to the Law Reform Act, I took the view that a democratic society is entitled to expect that legislation passed by its elected representatives in Parliament will be brought into force unless there are good reasons for not doing so, and citizens are entitled to know those reasons unless there is a greater public interest in keeping them secret.”

Ends

For further information contact Claire Sigsworth or Paul Mutch on 01334 464610, out of hours, 07976 511752

Notes to Editors:

Court of Session Opinion

• The Court of Session heard the appeals in December 2006.
  
• The Opinion of the Court was issued on 23 January 2007 .
  
• The Opinion of the Court of Session on this case is available to view online here: www.scotcourts.gov.uk/opinions/2007CSIH08.html

Commissioner's Decisions

The Commissioner's Decisions to which the Court of Session's Opinion relates are:

Decision 057/2005 – Mr William Alexander and the Scottish Executive

• Mr Alexander requested information relating to the commencement of sections 25 to 29 of the Law Reform (Miscellaneous Provisions) ( Scotland ) Act 1990. Sections 25 to 29 of this Act, which have yet to be implemented, set out arrangements which would ensure greater competition in the provision of legal services in Scotland .

• The Scottish Executive refused the request, arguing that most of the information either related to the formulation of policy or would prejudice the effective conduct of public affairs, and was therefore exempt from release under FOISA.

• The Commissioner found, following consideration of the content of each document, that, while much of the information did indeed fall within the scope of an exemption, other information did not, and should therefore be released. The Commissioner also found that some information, while falling within the scope of an exemption, should be released in the public interest.

• The full text of Decision 057/2005 can be viewed online here: www.itspublicknowledge.info/appealsdecisions/decisions/Documents/decision057.htm

Decision 060/2005 – Mr David Elstone / Mr Martin Williams of the Sunday Herald and the Scottish Executive

• Mr Elstone and Mr Williams separately made similar requests for documentation relating to a decision taken by the Scottish Ministers not to “call in” a planning application for Trearne Quarry, North Ayrshire. If “called in”, North Ayrshire Council would have been required to refer the application to the Scottish Ministers for decision.

• The Scottish Executive refused both of these requests, arguing that release would prejudice the effective conduction of public affairs.

• Given the similarity of the cases, the Commissioner issued a single Decision which addressed both requests. The Commissioner found, following the consideration of individual documents, that while some had been withheld correctly, others did not fall within the scope of any exemption and were appropriate for release.

• The full text of Decision 060/2005 can be found online here:

http://www.itspublicknowledge.info/appealsdecisions/decisions/Documents/decision060.htm

The Freedom of Information (Scotland) Act 2002

• The Freedom of Information (Scotland) Act 2002 (FOISA) provides a statutory right of access to all information held by Scottish public authorities. This right came into effect on 1 January 2005.
• Around 10,000 public authorities in Scotland are covered by FOISA. They include the Scottish Parliament and Executive, police forces, the NHS, local authorities, education institutions, and publicly owned companies.
• Information can only be withheld by a public authority if it falls under one of the exemptions listed in FOISA. If an individual believes an authority is wrong to withhold information, they ultimately have a right of appeal to the Scottish Information Commissioner, who can require release.
• The parties to any case have the right to appeal against the Commissioner’s decision to the Court of Session on a point of law only.

The Scottish Information Commissioner

• Kevin Dunion the Scottish Information Commissioner is a fully independent public official, appointed by the Queen on the nomination of the Scottish Parliament.
• His duties and powers are to ensure that people get the information from Scottish public authorities to which they are entitled.
• His role actively promotes and enforces compliance with FOISA.

Scottish Executive thought to be blameworthy for allowing restrictive practices in legal services

Harboured any criminals lately ? If you did, you are liable to be arrested as an accessory after the fact' ... involving whatever nefarious venture your criminal friend did.

Even worse, if you learn of a crime and give some form of assistance to it, you could be arrested as an accomplice, or "accessory before the fact" .... because of course, you are part of the criminal venture .. even more so than just standing back and keeping silent.

Interesting case then, when, the Government Department responsible for running Scotland - from (at least during the time of my own case) the Scottish Office , to the present Scottish Executive , has known all along, of problems with the regulation of the legal profession - while doing nothing.

Well, of course, it wasn't the case they did nothing, as we shall see ....

It has usually been the case, certainly with myself, and everyone else I know who has had difficulties with the Law Society of Scotland & crooked lawyers) that people have written to their constituency politicians seeking help because of slow progress or bare faced corruption on the part of the Law Society of Scotland during investigations of client complaints against lawyers.

After a person wrote to their constituency MP, or MSP (after the formation of the Scottish Parliament in 1999, legal affairs were devolved to Scotland), typically their request would go through a well worn process where their politician would write to the Law Society of Scotland, and also the Scottish Office (pre 1999) or the Scottish Executive (post 1999), to the relevant Minister responsible for Justice.

Just as in everyone else's case, the same happened in mine. Archy Kirkwood wrote to Henry McLeish , when he was a Minister in the Scottish Executive during 1999. The usual response was - "we can't do anything, the Law Society is mandated by the law to represent the interests of the client & the profession, and if you aren't happy with the outcome of the Law Society's investigation, you can approach the Scottish Legal Services Ombudsman to look at the way the Law Society handled your complaint' ... everyone was told the same - and all the politicians who wrote all these representations for all their constituents who asked for assistance - knew what the response would be.

A neat way of making work then perhaps ? Almost ... a merry go round, one could say ?.

Yes - that would be an almost perfect description of the whole thing from start to finish. Passing the buck - even though the Scottish Executive knew full well, there were significant problems with prejudice, bias, even, corruption in the way the Law Society of Scotland self-regulated their army of 10,000 solicitors.

But .. how does that fit in with telling thousands of people to do the same ?

Is it acceptable to know of crime, criminality, corruption, bias, prejudice, racism, sectarianism, abuse, embezzlement .. and tell thousands of people who report such matters, to go through a process which, knowingly, has no chance of success in preventing or halting the crime, criminality, corruption, bias, prejudice, racism, sectarianism, abuse, embezzlement ? Doesn't that sound a little bit .. crooked ?

So, we are back to who knew what, when, and why nothing was done about it.

Well, it turns out the Scottish Executive were & have been getting over 1000 representations per year from members of the public & their elected politicians .. on .. complaints about the way the Law Society of Scotland & Faculty of Advocates handle investigations of complaints against their members. This is, of course, one of the reasons the Legal Profession & Legal Aid (Scotland) Bill, has come into being - because media attention to scandals on crooked lawyers, and campaigns such as mine, and those of others, have brought out this issue into the public domain, to the point something had to be done about it.

Sounds a bit like the McKie case, doesn't it ? Scottish Executive knew something was wrong at the SCRO, but it looks like both sides - the McKie's and those officers at the SCRO were played royally against each other in a political battle to keep the lid on a creaking legal system, full of corruption & political favours in exchange for the legal profession 'leaving alone' certain parts of Scottish Law which are highly prejudicial to receiving fair trials or fair hearings .. one of those instances of course, being .. complaints against so-called 'professionals' such as .. lawyers.

In a case which may shed some light on why the Scottish Office & Scottish Executive sat on the fence, knowingly, while all was crooked & corrupt in arena of self-regulation of the legal profession, Bill Alexander, another campaigner on this subject, has the assistance of the Information Commissioner, Kevin Dunion, in a case which opens today at the Court of Session, seeking disclosure of ministerial correspondence and memoranda from the last decade concerning the enduring ban on people other than solicitors and advocates being paid to represent clients in the Scottish courts.

Put simply, Bill Alexander wants to know why, when sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 should have abolished the ban on non-lawyers applying for rights of audience.

These sections of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 are still sitting on the books - inactive ... because it is thought, they have been the subject of a political deal between the legal profession & the Scottish Executive, to keep a status quo and protect the monopoly which solicitors & advocates enjoy in the legal services market for who represents clients in Court.

There is no 'official' explanation why the sections were never enacted, but the Scottish Executive has refused to adhere to an order from the Information Commissioner to release the material requested by Bill Alexander .. and, as the Herald Newspaper reports, has employed Richard Keen QC to defend their position and prevent or at least prevaricate for as long as possible the release of such information - which may well go to prove the government stood by, knowingly, while the markets for legal business and opportunities for the client were stage managed by the legal profession in a monopoly which was allowed to continue - by the inaction of the Government.

You can read the decision of the Information Commissioner here : Decision 057/2005 Mr William Alexander and the Scottish Executive

Mr Alexander wouldn't find anything out on this from the Law Society of Scotland using FOI - that's because the Law Society of Scotland are exempt from FOI.

Imagine that - the Law Society of Scotland - a self regulatory body which has stage managed the legal services sector for decades in Scotland, was allowed an exemption from the Freedom of Information act, despite everyone, including the politicians & Government knowing full well it suffered from charges of corruption, bias, prejudice, restriction of who actually gets legal representation ...

Let's hope the Court of Session find in favour of Mr Alexander's request for the relevant information on the stitch up of legal services & delay of legislation, just as the Court of Session found in favour of the Information Commissioner on December 1st, ruling that the Common Services Agency of the NHS (National Services Scotland) should provide information on the incidence of childhood leukaemia in Dumfries and Galloway.

It certainly seems the Scottish Executive are determined on spending vast amounts of public money to defend against disclosure of material which should really be in the public domain ... all this information seemingly indicating a variety of scandals which have been covered up.

I say the Scottish Executive is guilty of allowing the suffering of clients to go unremedied for all these years while the likes of the Law Society of Scotland routinely fiddled client complaints against it's member solicitors & stage managed legal services in Scotland to maintain it's monopoly on rights of audience. The Executive, and the Scottish Office, were clearly aware of this.

It's time the Executive did something about their sitting on the fence for all these years, and make financial amends to all those victims of crooked lawyers,who, over the years, have had to face the knowingly corrupt & prejudicial practices of the Law Society of Scotland in regulating the legal profession.

Read on for the Herald article on this case, link to follow.

http://www.theherald.co.uk/business/76926.html

Freedom of information, the law and the public purse
PAUL ROGERSON December 18 2006

The Scottish Executive has appointed one of the nation's most eminent advocates to try and block the release of sensitive documents that could explain why Scotland's legal services market has never been opened up to greater competition.

Richard Keen QC's fees, which are understood to be as high as £6000 a day, will be met by the taxpayer.

However, ministers are still refusing to say why they are spending so much public money to thwart the release of information on a subject which is no longer a political hot potato.

The landmark case – the bill for which could run into six figures – begins in the Court of Session tomorrow.

Last year Bill Alexander, a longstanding campaigner for wider consumer access to
legal services, used freedom of information legislation to seek disclosure of ministerial correspondence and memoranda from the last decade concerning the enduring ban on people other than solicitors and advocates being paid to represent clients in the Scottish courts.

Sixteen years have passed since sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 should have abolished the ban on non-lawyers applying for rights of audience. Somewhat mysteriously,the sections were never commenced.

At the time, commencement of the sections was deferred indefinitely, amid bitter controversy.

Ministers gave an undertaking that the sections would not be implemented until other reforms in the 1990 act – in particular, the introduction of solicitor-advocates – had been given time to bed down.

However, the fact that the measures remain on the statute book but are still not active has provided ammunition for critics of the lawyers' "closed shop". It has also attracted the attention of both the Office of Fair Trading and the House of Commons Trade and Industry Select Committee.

Holyrood ministers are refusing to comply with an order by Scottish information commissioner Kevin Dunion to publish the documents sought by Alexander, which include letters from the late First Minister Donald Dewar to both Deputy Prime Minister John Prescott and Lord Irvine of Lairg, the former Lord Chancellor.

As The Herald reported earlier this year, the case constitutes the first occasion since freedom of information legislation took effect that the Executive has elected to fight its case before the courts.

Industry observers are puzzled why ministers are going out on a limb on the issue, especially since commencement of sections 25-29 is part of the legal profession bill currently at committee stage 3 at Holyrood. Suspicions have inevitably arisen that the documents sought by Alexander could prove embarrassing to members of the New Labour hierarchy and senior Scottish lawyers past and present.
Keen, whose recent cases have included acting for Tommy Sheridan in the News of the World libel case, will be supported by junior counsel Kenneth McBrearty.

The information commissioner will be represented by another eminent brief, Paul Cullen QC.

The Herald asked the Executive why it continues to block publication of the documents sought by Alexander, when it supports, and indeed is legislating for, commencement of sections 25-29. A spokesman said:

"The appeal process has an important part to play, for example in ensuring proper interpretation and application of FOI legislation. For the Executive, the commissioner has issued decisions in around 56 cases – in three of these we have considered that it's appropriate to appeal. This is one of those cases.

"Those cases are currently sub judice, however, so it is inappropriate for us to make any further comment at this point."