Holyrood debate reveals civil justice reforms & McKenzie Friends may be a long way off as Scottish Ministers stumble over Lord Gill review proposals

Scottish Parliament debated Lord Gill’s Civil Courts Review. Last Thursday's Scottish Parliamentary debate on the Civil Courts Review recommendations made by Scotland's Lord Justice Clerk, Lord Gill has left most onlookers and legal insiders with a worry that many of the reforms proposed in the two year review on Scotland's Civil Justice system, including the implementation of McKenzie Friends & Class Actions, will suffer long delays and in some cases, may almost certainly never be implemented in ways which would help ordinary Scots gain significant improvements in using Scotland's "Victorian" justice system.

Justice Secretary Kenny MacAskill spoke of Lord Gill’s criticisms of Scotland’s Civil Justice System. The tone of the debate, opened by Justice Secretary Kenny MacAskill, began on a 'positive’ note, where high hopes for improvements to Scotland's Civil Justice system were aired by Mr MacAskill, along with the usual compliments for the legal system as it currently stands (in failure). Mr MacAskill said : “Scots law and the Scottish courts have served us well in civil matters for many years but, last Wednesday, the Lord Justice Clerk, Lord Gill, presented me with the "Report of the Scottish Civil Courts Review", which is a hard-hitting report and the first system-wide review in modern times.”

Mr MacAskill went on to say : “In his opening paragraphs Lord Gill pulls no punches. He says: "The basic structure of civil jurisdictions in the Scottish courts remains much as it was in the late nineteenth century".He continues:"changes in the social and economic life of Scotland ... have left us with a structure of civil justice that is seriously failing the nation. Reform is long overdue."

“Those conclusions are unavoidable. Our civil courts now operate in a rights-based, property-owning, consumer-oriented, insurance-reliant society of a sort that would have been unrecognisable a century ago. A reliance on ad hoc reforms has delivered a system of civil justice that is unfit for today's purposes. Lord Gill states: "The practitioners of 100 years ago would have little difficulty in picking up the threads of today's courts. The severe summary is that the structure is "seriously failing the nation."

Scotland’s Justice Secretary Kenny MacAskill opens Holyrood debate on Civil Courts Review :

Margo MacDonald MSP asked Kenny MacAskill when justice reforms would begin. Early intervention from independent MSP Margo MacDonald on the question of which areas had been identified by the Justice Secretary for a start, along with comments from the Liberal Democrat Justice Spokesman Robert Brown on points made by Lord Gill that his report ‘was not to be cherry picked and should be dealt with as a whole’, appeared to leave Mr MacAskill grasping for explanations as to what could and could not be done by the current Scottish Government.

Further hints at delays to Lord Gill’s proposals were compounded by questions from Scottish Labour MSP David Whitton, on the subject of McKenzie Friends, which also left Mr MacAskill struggling for an immediate solution to the forty year old McKenzie Friend 'Scottish problem' , the blame of which sits squarely with the Courts and Scotland’s legal establishment.

Strathkelvin and Bearsden MSP David Whitton asked for introduction of McKenzie Friends in Scotland. David Whitton intervened early on in Mr MacAskill’s opening speech, asking asked the Justice Secretary about the issue of McKenzie Friends in Scotland. Mr Whitton said : “Is one of the issues on which the cabinet secretary thinks we can all reach agreement the introduction of the McKenzie friend process?”

Justice Secretary MacAskill replied with a less than immediately hopeful statement : “I am more than happy to consider it. Lord Gill commented on that process, as did those involved in providing support through citizens advice bureaux and others. I am more than happy to meet Mr Whitton or his front-bench colleagues to discuss it because we are genuinely open to ideas. We do not insist on any formula. As I said, if we can agree on changes that are within our control, we will seek to do so. If changes are within the domain of others we will encourage them to act, if that is Parliament's view. Other matters will require to await the outcome of an election and, presumably, the availability of legislative time. The shape of reform will require endorsement and, in some cases, enactment by this Parliament. There will be those in the chamber and beyond with particular interests in the course of reform, whether that involves McKenzie friends or other ideas. They will want to ensure that their interests are protected, be they of the cause or constituency type. That is to be expected and welcomed”

Strathkelvin and Bearsden MSP David Whitton spoke further on the issue of McKenzie Friends for Scotland :

David Whitton MSP said during his speech : “My colleague Cathie Craigie and several other members touched on the need for the introduction of McKenzie friends in Scottish courts. The cabinet secretary knows about my interest in third-party rights of representation. Indeed, only a couple of months ago, the Association of Commercial Attorneys finally earned the right for its members to appear in court, but only after a lengthy process, which at times seemed to involve an obstructive approach from the Scottish legal establishment. It is to be hoped that the recommendation on the introduction of McKenzie friends does not suffer similar delays. That is why I welcome the cabinet secretary's earlier remarks in response to my intervention.”

He continued : “We must make expeditious progress on Lord Gill's enlightened recommendation on McKenzie friends. The first thing that can be done is for the courts to grant McKenzie friend rights with immediate effect. There is no need for legislation from the Parliament, as it is within the powers of the courts to grant those rights. That would demonstrate the intent that things are going to change. The public want that change, Lord Gill has recommended it, the consumer associations support it, and it is an equitable and compassionate remedy for some of the access-to-justice restrictions in Scotland.

Mr Whitton’s references to the Association of Commercial Attorneys application for third party rights of representation refers to a long battle by the ACA’s Chairman, Mr Bill Alexander, seeking rights of audience under Sections 25-29 of the Law Reform (Miscellaneous Provisions) Scotland Act 1990, which I have reported on previously, here : Association of Commercial Attorneys Rights of Audience in Scotland

The outcome for the ACA was less than fair, due to the fact they were given a heavily restrictive practicing certificate for construction law only, with their application apparently being fought & lobbied against by the legal establishment at every stage. The ACA’s battle to gain rights of audience may also indicate a long struggle ahead on the issue of McKenzie Friends and other access to justice reforms proposed by Lord Gill.

Fergus Ewing caught out on McKenzie Friends issue. While the debate began on a somewhat positive note, the debate certainly ended on a significant stumble by the Communities Safety Minister Fergus Ewing over the question of McKenzie Friends, who indicated in his replies to questions from David Whitton MSP that a quick implementation of even the basic proposals in Lord Gill’s Civil Courts Review such as allowing McKenzie Friends in Scotland’s courts, was not going to be ‘all that quick’ …

Community Safety Minister Fergus Ewing stumbles over McKenzie Friends for Scotland after 40 years of existence in England & Wales.

David Whitton intervened once more on the McKenzie Friends question. During the debate’s closing speech by Community Safety Minister Fergus Ewing, Strathkelvin and Bearsden MSP David Whitton again raised the subject of McKenzie Friends and their sooner rather than later implementation in Scotland. Mr Whitton said : “I bring the minister back to my comments about McKenzie friends. He mentioned that there was wide consultation on their use and varying reports about their effectiveness, but I am sure that he acknowledges that Lord Gill recommends firmly that they should be introduced. Indeed, they already work in jurisdictions south of the border, so I do not understand why we need to delay too long before we implement that recommendation.”

Fergus Ewing replied ‘its not an easy matter to be a McKenzie Friend’. Community Safety Minister Fergus Ewing replied with a less than clear cut answer, leaving many to suspect the battle to implement McKenzie Friends in Scotland is far from over. Mr Ewing said : “David Whitton is right that the recommendation is that McKenzie friends should play a role in Court of Session actions. However, my understanding—my recollection of reading that part of the report—is that there is the caveat that it should be at the discretion of the judge who is handling the case to ensure that McKenzie friends are used appropriately for each case. It is not an easy matter to be a McKenzie friend and, particularly if the case is complex, there could be issues with the appropriateness of using one. I think that Lord Gill also states that, in family actions, it may not always be appropriate for a family member to act as a McKenzie friend because of the potential conflicts of interest.”

By clicking the following You Tube links, you can watch the reaction from Scotland’s political parties and several MSPs to Lord Gill’s recommendations, which for the main offered a broad approval of Lord Gill’s report and hopes that many of the issues raised in the two year appraisal of Scotland’s Civil Justice system can be implemented. The test of course will be whether the Civil Justice reforms proposed in the review will be implemented, and how long implementation will take …

Civil Courts Review debate : Scottish Conservative Justice spokesman Bill Aitken MSP

Civil Courts Review debate : Scottish Labour Justice spokesman Richard Baker MSP

Civil Courts Review debate : Scottish Liberal Democrats Justice spokesman Robert Brown MSP

Civil Courts Review debate : Cathy Jamieson MSP

Civil Courts Review debate : Shirley Anne Somerville MSP speaks on Class Action reforms

Civil Courts Review debate : Nigel Don MSP

On the whole I would say the debate was positive, albeit there are obvious indicators the implementation of Lord Gill’s recommendations will take time, and will be met with obvious & stiff resistance from the legal establishment. Several solicitors and legal insiders I have spoken to since the debate point to many uncertainties over Lord Gill’s proposals, resistance from the legal establishment over changes that many within its ranks do not want, and the inevitable arm twisting of politicians by the likes of the Law Society of Scotland, who although have welcomed Lord Gill’s report, are actually fuming over many of the proposals to give the public greater access to justice, and the chance to bypass Scotland’s hugely expensive solicitors to do it.

I honestly feel that as far as McKenzie Friends go, there will have to be some kind of legislation to ensure that having a McKenzie Friend is a Human Right, and not something at the whim or discretion of the court. The court has after all, kept out McKenzie Friends from Scotland for some forty years, and both the governing bodies of Scotland’s legal profession – the Law Society of Scotland and the Faculty of Advocates, do not even recognise the fact that McKenzie Friends are treated as Human Rights issue in England & Wales, and in many jurisdictions around the world.

If we are to have certainty over the McKenzie Friends question, and many other recommendations of Lord Gill, I foresee the legislative route must be used to force the courts to ensure access to justice for all, rather than access to justice only for those the court feels should have it.

The legal establishment and the courts, will again no doubt argue that we are special in Scotland, and have a peculiarly special legal services market which may be damaged by some of Lord Gill’s proposals including McKenzie Friends. However, the truth is, we are only special in Scotland because the legal establishment actively denies access to justice to those it does not want to achieve access to justice.

Holyrood asks Scotland's Chief Judge Lord Hamilton to implement McKenzie Friends after 40 years of legal establishment’s resistance to court reforms

Scotland's Lord President Lord Hamilton. FORTY YEARS after McKenzie Friends entered into the English Courts system, Scotland's Chief Judge Lord Hamilton, the Lord President, is to be asked by the Scottish Parliament's Petitions Committee to implement McKenzie Friends in Scotland's courts, after growing calls from MSPs were made at this week's public petitions hearing on Petition 1247 (McKenzie Friends for Scotland) in support of implementing the long held right in England & Wales for courtroom assistance for unrepresented litigants.

Scottish Judge Lord Woolman claimed McKenzie Friends were a matter for Parliament, not the Court. However, while Lord Hamilton is to be asked by Parliament on the implementation of McKenzie Friends in his own courts, I can exclusively reveal the first test request of a McKenzie Friend since the publication of Lord Gill's Civil Justice Review last week FAILED after High Court judge Lord Woolman rejected a request for a McKenzie Friend last Friday, made by a party litigant in a 'high value' damages case. It transpires this was the second refusal by the Court to allow the request of appearance of a McKenzie Friend in the same case, the Court claiming on this latest occasion that this was a matter for, and currently being discussed by, the Scottish Parliament.

Lord Gill’s recommendations on McKenzie Friends were tossed aside by fellow judges the day after publication. The courts resistance to allowing a McKenzie Friend, even apparently against the recommendations of Lord Gill’s Civil Courts Review, sets the scene for an extraordinary tussle between the Scottish Parliament and Scotland's Judiciary over the Courts responsibilities to ensure fair & equal access to justice for both sides, with, on one side, the Scottish Parliament Petitions Committee seeking to persuade Lord Hamilton to introduce McKenzie Friends in Scotland's Courts, and elements of the Judiciary on the opposing side, claiming it is a matter solely for the Parliament, and nothing to do with the court.

While it appears Scotland's judiciary, along with the Law Society of Scotland, Faculty of Advocates, and even the Scottish Government are all opposed in some way or another to the introduction of a McKenzie Friend to assist party litigants, the English courts introduced the McKenzie Friend facility without much problem some forty years ago.

The English legal system, along with their courts and legal services market, did not collapse into anarchy, as the Scottish legal profession seem to be claiming will happen if McKenzie Friends were introduced in Scotland. Rather it appears the driving force behind objections from the Scottish legal establishment to the introduction of McKenzie Friends, are solely based on the fact solicitors will lose fees if the public decide to take a McKenzie Friend along with them to court, instead of a costly 20,000 plus solicitor & legal team who may very well end up ruining their case as the statistics seem to indicate in Scotland's currently poorly served legal services market.

Now, to the report of this week's Petitions Committee hearing.

Holyrood's gem, Margo MacDonald speaks in support of McKenzie Friends petition, joined by the petitioner's constituency MSP, Murdo Fraser.

Margo MacDonald spoke of a McKenzie Friend 'being a right' in England & Wales. Margo MacDonald attended this week's Petitions Committee hearing and spoke further on the advantages of allowing McKenzie Friends in Scotland's courts. Margo MacDonald said : "This is a system of support for litigants in courts which has been running successfully in England for a long time. It seems to offer a greater level of support and a feeling of security for many people going into court to plead for themselves. The McKenzie Friend does not plead directly for them, the McKenzie Friend offers advice quietly given perhaps hands over relevant papers at the relevant time perhaps back up work"

"I’ve looked at the response from Lord Gill because it was referred to the Faculty of Advocates who said 'we will wait to see what Lord Gill's review says' and he's not all that keen, but I think most parts of the Scottish legal establishment are not all that keen on having lay people in court and they are very very careful about it"

"Now I think they do so for reasons I approve of in they want to maintain their very high standards of advocacy and protection of the client in the Scottish courts but in this one i think we could take a leaf out of what happens in the English courts and add a greater level of support for litigants who may be rather overawed by court procedure"

Margo MacDonald also reminded the Petitions Committee that having a McKenzie Friend in England & Wales was a right, and not something which should be under the sole approval of a Sheriff or the court, stating : "Lord Gill I think suggests it should be up to the sheriff to decide whether or nota McKenzie Friend would be allowed to be alongside the litigant whereas in England I think they have a right to be there"

Scottish Conservative Murdo Fraser MSP also supports the introduction of McKenzie Friends in Scotland. Murdo Fraser, attending the Petitions Committee in support of the McKenzie Friends Petition said "Mr MacKenzie is a constituent of mine and I'm happy to be here to support the petition because I actually agree with everything Margo MacDonald has just said."

He continued :"Can I say I think the proposal from Mr MacKenzie is a very reasonable proposal and makes a sensible suggestion. The McKenzie friend is there to provide assistance to a party litigant. It was interesting to read the response on the Civil Courts Review which very much majored on the issue of whether the McKenzie Friend should be given rights to be heard in court. Now as I understand from Mr MacKenzie that is not the issue. He is not actually seeking for the McKenzie Friend to be heard in court. All he is seeking is the right of a party litigant to bring somebody with them to sit beside them and provide them with assistance."

"There is nothing I read in the representations that really strongly argue against that. The proposal is supported by Which?, the Scottish Consumer Council and Money Advice Scotland. I think it would be a fairly simple thing to introduce and I think it would be very much to the benefit of party litigants and improve the justice system."

Nigel Don MSP, Petitions Committee member and Parliamentary liaison officer to Kenny MacAskill Nigel Don said "Can I first recognise that previous contributors have brought out the distinction between those who are there as a friend and those who are there as a right of audience which is one I wanted to make sure we covered."

He continued : "It does seem to me from everything so far that I've heard this is something the court could introduce themselves. I don't think it took Lord Gill to say it would be a good idea. In fact I think he has gone beyond McKenzie Friend as you said, and therefore I wonder whether in fact the first person we should write to is actually the Lord President because it is he who runs the courts and ask him whether there are any plans within the courts system to alter their practice because it is he who presides over them as the government doesn't actually deal with this."

"We might secondly want to write to the government asking its attitude but I think we should start by asking the Lord President if whether he feels there is something he can do. I think he can but he is the judge of that and whether he is minded to do so."

By way of response to that, Margo MacDonald pointed out the precedent of having a McKenzie Friend in Scotland may have already been established in the Scottish Land Court

Petitions Committee member Bill Butler MSP (Scottish Labour). Bill Butler said "Just to say I agree with everything that been said. We have some quotes from Lord Gill's review where he's very careful with the phraseology he uses or employs, he's for it and in certain circumstances a person being able to address the court on behalf of a party litigant. I do think we should follow Nigel’s suggestions and write to the government asking if they will come on board."

While the Petitions Committee has agreed to write to Lord Hamilton in the terms specified, in all honesty I do not think Lord Hamilton will budge on the issue of McKenzie Friends, or indeed many of the other reforms in Lord Gill’s Civil Courts Review, which appear to be on the ‘watering down list’ at the Scottish Government’s Justice Department. Even if the Lord President does manage to do something on McKenzie Friends without the need of a legislative push, we can be assured there will be a set of intolerable conditions that no English court, or indeed any court in other national jurisdictions where McKenzie Friends exist, would accept.

Justice Secretary Kenny MacAskill blamed Lord Hamilton for delays in rights of audience approvals. We only need to look back to how the Lord President and the Scottish Government handled the introduction of wider rights of audience, via Sections 25-29 of the Law Reform (Miscellaneous Provisions) Scotland Act 1990, where after about ten years of the Association of Commercial Attorneys filing applications for rights of audience, a blame game broke out between Justice Secretary Kenny MacAskill and Lord Hamilton over who was delaying longer than the other, which I reported on earlier, here : Justice Secretary MacAskill blames Lord President for delays in ‘access to justice’ applications row and which you can watch via video clip, here :

The Blame Game : Kenny MacAskill piles blames for access to justice delays on Lord Hamilton.

McKenzie Friends for Scotland should be introduced without further delay. However, given the continuous resistance from the legal profession and the courts system itself, I feel there must be legislation to ensure there are proper rules laid down on the use of McKenzie Friends, and the right of an individual to request and receive the services of a McKenzie Friend laid down in no uncertain terms to the court, a right that people in the rest of the United Kingdom enjoy.

You can read my earlier reports about McKenzie Friends and the campaign to introduce them to Scotland's courts system, here : McKenzie Friends for Scotland

Scottish Human Rights Commission oppose McKenzie Friends as Human Right in Scotland as English courts allow ECHR rights for legal assistance requests

Scotland's Human Rights Commission argue against Human rights of having a McKenzie Friend in Scotland. In a move condemned by some senior legal & consumer figures this evening, the Scottish Human Rights Commission have written to the Scottish Parliament Petitions Committee on the subject of Petition 1247 McKenzie Friends for Scotland, voicing argument & opposition to giving Scots court users the 'Human Right' of a McKenzie Friend, a right which has been respected as an Article 6 Human Right in England & Wales for several years, according to advice given out by the Lord President of the English courts, and backed by the UK's Ministry of Justice.

Curiously, the SHRC’s apparent opposition to McKenzie Friends as a ‘Human Right in Scotland’, seems to fit in with the negative views expressed so far by the Law Society of Scotland and the Faculty of Advocates, who both oppose the introduction of McKenzie Friends to Scotland’s courts, as I have reported earlier HERE and HERE.

In an unexpected twist to the argument for McKenzie Friends, the 'impartial' Scottish Human Rights Commission used an example of an EU ruling in the context of a case in which the applicant was assisted by a McKenzie Friend. In the case the SCCRC used as a reference, “The Court in this case made no comment on the role of the “McKenzie friend” which is neither prescribed nor proscribed by the ECHR. It clearly did not, however, consider this to be sufficient to provide the applicant with the required level of legal representation in the case given its complexity, the importance of what was at stake, and its highly emotive subject matter, finding ultimately that, in the instant case, “the principles of effective access to court and fairness required that [the applicant] receive the assistance of a lawyer.”

SHRC argued in their submission to Holyrood’s Petitions Committee that it would be better for litigants to pay a lawyer to represent them in court than have a McKenzie Friend !

The EU case reference used by the SHRC documents : “There is no automatic right under the Convention for legal aid or legal representation to be available for an applicant who is involved in proceedings which determine his or her civil rights. Nonetheless Article 6 may be engaged under two inter-related aspects. Firstly, Article 6 s1 of the Convention embodies the right of access to a court for the determination of civil rights and obligations. Failure to provide an applicant with the assistance of a lawyer may breach this provision, where such assistance is indispensable for effective access to court…by reason of the complexity of the procedure or the type of case. Factors identified as relevant in the Airey case (Airey v Ireland 9/10.1979) in determining whether the applicant would be able to present her case properly and satisfactorily without the assistance of a lawyer included the complexity of the procedure, the necessity to address complicated points of law or to establish facts, involving expert evidence and the examination of witnesses, and the fact that the subject-matter of the marital dispute entailed an emotional involvement that was scarcely compatible with the degree of objectivity required by advocacy in court. In such circumstances, the Court found it unrealistic to suppose that the applicant could effectively conduct her own case, despite the assistance afforded by the judge to parties acting in person.”

“It may be noted that the right of access to court is not absolute and may be subject to legitimate restrictions. Where an individual's access is limited either by operation of law or in fact, the restriction will not be incompatible with Article 6 where the limitation did not impair the very essence of the right and where it pursued a legitimate aim, and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. Thus, though the pursuit of proceedings as a litigant in person may on occasion not be an easy matter, the limited public funds available for civil actions renders a procedure of selection a necessary feature of the system of administration of justice, and the manner in which it functions in particular cases may be shown not to have been arbitrary or disproportionate, or to have impinged on the essence of the right of access to court. It may be the case that other factors concerning the administration of justice (e.g. the necessity for expedition or the rights of other individuals) could also play a limiting role as regards the provision of assistance in a particular case, though such restriction would also have to satisfy the tests set out above.”

“Secondly, the key principle governing the application of Article 6 is fairness. In cases where an applicant appears in court notwithstanding lack of assistance of a lawyer and manages to conduct his or her case in the teeth of all the difficulties, the question may nonetheless arise as to whether this procedure was fair. There is the importance of ensuring the appearance of the fair administration of justice and a party in civil proceedings must be able to participate effectively, inter alia, by being able to put forward the matters in support of his or her claims. Here, as in other aspects of Article 6, the seriousness of what is at stake for the applicant will be of relevance to assessing the adequacy and assessing the adequacy and fairness of the procedures (P, C and S v the United Kingdom, 11/12/2001)”

The English approach – McKenzie Friends are treated as a Human Rights issue on advice of the Lord President.

In stark contrast to the Scottish Human Rights Commission’s attitude on McKenzie Friends, the English approach, led by the Lord President of the Family Division, and backed by the Ministry of Justice advises that : “When considering any request for the assistance of a MF, the Human Rights Act 1998 Sch 1 Part 1 Article 6 is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request.”

A senior figure in one of Scotland's consumer organisations attacked the SHRC's statement as profoundly shocking for party litigants in Scottish courts, claiming the commission's letter "sounded more like a pitch for business for lawyers than a defence of something already accepted as a right in England & Wales".

He said : "I am surprised by the negativity and tone of the SHRC's response to the Petitions Committee on the subject of McKenzie Friends."

"It is widely accepted in the English courts that litigants can request the presence of a McKenzie Friend, which the court usually looks on as an Article 6 Human Rights issue, as offered in advice from the Lord President of the Family Division, English Courts."

He continued : "While I respect the references used in the Human Rights Commission's reasoning, I feel their submission looks more like a pitch for forcing litigants to use lawyers, but they have not tackled the argument as to what happens if that litigant cannot obtain access to legal representation."

“I feel the SHRC has played a very dark hand making this submission on the day before the Petition is to be heard, after, I understand, having been asked to make a submission several months ago. One could be forgiven for thinking the SHRC are attempting to undermine the Petition itself with their rather poor showing."

A senior solicitor who was asked for comment on the SHRC's response to the McKenzie Friends Holyrood Petition said he was astonished the Commission had apparently went so far out of its way to argue that having a McKenzie Friend was not a Human Right.

He said : "I think people are going to look at the Commission’s letter to the Parliament and wonder why they actually exist if they are so set against issues which are handled as Human Rights entitlements in one part of the country, but not in Scotland."

He continued : "I don't see why the Scottish Border with England should be the crumbling point for individuals rights, where Scots clearly have less rights than people in England & Wales, and then we have this notion where those very organisations funded by the public in Scotland to protect & promote Human Rights, will go out of their way to argue against the very issues they are charged with protecting."

"Many solicitors in the legal profession I know, including myself, do not have a problem with McKenzie Friends appearing in Scotland's courts. However, there is clearly a movement within the legal profession who do not wish to see McKenzie Friends operating in the Scottish courts, and in these testy financial times, I would put that down to fear of the competition and lost business, not really anything to do with arguments of lawyers being able to give a litigant a better service, which I would be the first to admit, may not always be the case."

In an interview this evening, Mr Stewart MacKenzie, the Petitioner who raised the McKenzie Friends for Scotland Petition 1247, said he was disappointed with the Scottish Human Rights Commission's Parliamentary submission.

He said : "The SHRC seems to have focussed too heavily on the subject of representation, which has absolutely nothing to do with a McKenzie Friend, who is there simply to take notes, and quietly advise party litigants on what questions to ask or how to observe court procedures.”

Mr MacKenzie continued : "A McKenzie Friend should be a human right for all Scots as it is for the people of England & Wales, rather than some remote favour at the behest of the court. Why should a court have the discretionary power to say to someone you can have an assistant to help take notes, but refuse the same privilege to others ? That is not fair.”

"If I as a party litigant who cannot obtain legal representation through the services of a solicitor, want a note taker or assistant in court it should be my right to have that just as people in other parts of the country, and other parts of the world can have without all this opposition from the legal profession in Scotland. We are talking about helping people in court here, not representation or advocacy. McKenzie Friends should be a right for all and that is why I raised my petition at the Scottish Parliament."

I would certainly have to agree with Mr MacKenzie's point of view, and also, am left wondering why the Scottish Human Rights Commission have written a reluctant letter to the Scottish Parliament shying away from backing McKenzie Friends as a Human Right.

Petitioner asks Holyrood to request Courts to implement McKenzie Friends. Late yesterday, the petitioner Mr MacKenzie wrote to the Scottish Parliament’s Petitions Committee, reminding them of Lord Gill’s recommendation that a McKenzie Friend facility now be introduced into Scottish Courts, and asked the Committee to write to the Sheriff Court Rules Council, requesting that they implement a McKenzie Friend facility without any further delay. Mr MacKenzie ended his request to the Petitions Committee by saying “There has been enough prejudice to the people of Scotland on this matter.” … yes, some forty years of prejudice, and one could almost say, organised resistance from the legal profession to the allowing of McKenzie Friends in Scotland …

The Scottish Human Rights Commission claim on their website : "The Scottish Human Rights Commission promotes and protects the human rights of everyone in Scotland. We are working to increase awareness, recognition and respect for human rights in Scotland by bringing human rights into everyday life. The Commission is dedicated to helping everyone understand their rights and the shared responsibilities we all have to each other and to our community. The Commission is independent of the UK and Scottish Parliaments and Governments."

One could easily conclude from the SHRC's response to the Scottish Parliament, the individual’s Human Rights may only go so far in Scotland ... perhaps to the point of a solicitor's fee note, and if you cannot get a solicitor to act for you, you don't have Human Rights …. which is most certainly an odd way of looking at things.

No one at the SHRC was available for comment this evening.

The Scottish Parliament’s Petitions Committee will hold its latest hearing on Petition 1247 (McKenzie Friends for Scotland) at Holyrood on Tuesday 5 October 2009.

Legal Services Bill promises nightmare complaints scenario for consumers as Law Society campaigns to control regulation over ‘Tesco Law’ reforms

Holyrood's Justice Committee will consider MacAskill's Legal Services bill as arguments grow over who will regulate legal sector. Scottish consumers will be given a wider choice of who will represent their legal interests with the introduction of the Legal Services Bill, which seeks to promote alternative business structures within Scotland’s legal services sector. However, a gigantic flaw in the Scottish Government's proposals reveals confusion and poorly thought out plans to appoint ‘a regulator of its choice’ to regulate an expanded legal services market, leading to expectations the Law Society of Scotland will end up engineering its own appointment to regulate and manage anyone who seeks to enter Scotland’s legal services sector, irrespective of their professional background.

Regulation nightmare for consumers predicted as Scottish Government 'to choose' a regulator with the help of the Lord President, the OFT and others. A Consumer affairs insider while welcoming the improvement in choice of legal representatives, condemned the proposals over regulation, calling them "half baked" and claiming there will be little change in the usual closed shop complaints system run by the Law Society of Scotland and the Scottish Legal Complaints Commission. She said : "The Scottish Government's proposals over appointing a regulator to oversee the expanded legal services market after the bill becomes law are a bit of a joke, given it is widely expected the Law Society of Scotland will end up as the sole regulator of the entire industry yet again. I doubt consumers would benefit from any such arrangement when it is clearly evident consumers have never benefited from the Law Society's regulation in the past."

She continued : "There are some competent proposals to widen public choice in the legal services market, however, the Legal Services Bill as it currently stands is a long way off from the expectations of consumer organisations and doubtless the many law reformers who are calling for the full opening up of Scotland's monopolistic legal services market."

The Scottish Government’s Press Release described the main points of the Legal Services Bill as being to allow solicitors to secure external investment and business expertise and to combine with other professionals to offer legal services to the public in new ways, to allow the removal of restrictions on solicitors entering into business relationships with non-solicitors, to make it easier for Scotland's leading commercial law firms to compete effectively with other UK firms and internationally, while also allegedly (and laughably) creating a robust regulatory framework in which the Scottish Government will appoint approved regulators who will regulate the new business structures

Justice Secretary Kenny MacAskill has chosen to concentrate on beefing up the legal profession's profits, sidelining the long standing problems of poor regulation. Justice Secretary Kenny MacAskill said: "A strong and independent legal profession is part of the institutional framework of a modern democracy. The legal profession also contributes to the Scottish economy with an estimated turnover of over one billion pounds per annum. This new legislation will help Scotland's legal profession to grow and compete both in the UK and internationally.In developing these proposals, we have worked closely with the profession to ensure that we protect the profession's core values,at the same time as freeing solicitors to offer new services in new ways. Our proportionate and flexible approach will allow the profession to move quickly to respond to changes in the market by removing outdated restrictions on business models."

Scotland’s Justice Secretary Kenny MacAskill again puts lawyers £billions before consumer protection & independent regulation.

The Government’s proposals for regulation laughably state : “There are six such principles to which persons providing legal services should adhere. These principles do not differ substantially from the professional principles by which solicitors and other legal professionals act, and are intended to ensure that the current standard of quality in the delivery of legal services is safeguarded. Licensed providers would be expected to “act in the best interests of their clients” meaning that they should, for example, observe the duty of confidentiality, avoid conflicts of interest and safeguard a client’s money and property. Licensed providers would be expected to maintain good standards of work, meaning that they should act competently, communicate effectively, be diligent and show respect and courtesy.” Surely these claims must relate to another country, because they certainly do not describe the Scottish legal services market !

A representative of legal services users today branded the Legal Services Bill 'little more than window dressing for the legal profession which contains nothing for consumers'. He said : "This is all about bringing new money into law firms and giving regulatory control back to the Law Society of Scotland. I don't see anything beneficial or productive for consumers in these legislative proposals."

SLCC's Chair Jane Irvine offered no view on the new proposals. The Scottish Legal Complaints Commission's Chair, Jane Irvine was asked for comment, and replied : "I have not studied this yet." However, an SLCC insider said : "The Government's proposals over regulation of abs are messy and will cause more confusion for clients over who to make a complaint over problems with their legal representatives. The SLCC was given the role as single gateway for all complaints regarding legal services and funding that role comes from levying all entrants to the legal services market. It now looks as if the Government are now trying to undo the Commission's remit and hand regulatory power back to the profession which will be a bad thing as far as consumers are concerned."

A client with a complaint currently being investigated by both the Law Society of Scotland and the Scottish Legal Complaints Commission rounded on both organisations, branding them "useless, prejudiced, anti-client, against the public, and part of the problem of crooked lawyers, rather than a solution to cleaning up the profession."

President Ian Smart of the Law Society of Scotland is campaigning hard to become the sole regulator of the expanded legal services market, by any means possible. Quick off the hoof, Ian Smart, President of the Law Society of Scotland reacted to the Justice Secretary's proposals, saying “The Society believes that Scotland’s legal profession should be able to adapt to best meet the needs of modern society and a global economy. Scots lawyers are well respected around the world and we want to ensure that our members have access to the opportunities that ABSs could present to adopt new practices, to deliver the services their clients expect and develop their businesses in Scotland, as well as elsewhere in the UK and overseas.”

"However it will be vitally important that the Bill ensures the independence of the legal profession, promotes access to justice and maintains robust consumer protections and high standards among those delivering legal services. Effective regulation will be key to any plans for change. We look forward to engaging with the Scottish Government, the Parliament and other interested parties in the future development of legal services in Scotland.”

An analysis of Ian Smart's comments of how the Law Society has handed the debate on alternative business structures indicate his claims are pure fantasy. In reality, the Law Society attempted to vote down the abs proposals, which only passed into the profession's overall policy after legal firms themselves took the initiative and demanded changes. Where Mr Smart speaks of 'promoting access to justice and maintaining robust consumer protections and high standards among those delivering legal services', the simple fact as we all know is these fanciful 'consumer protections and high standards of service’ have never existed in Scotland's justice system, nor has unrestricted access to justice, a fact which Lord Gill's Civil Courts Review more than adequately attests to, alongside the Lord Justice Clerk's own condemnation of Scotland's Justice system as being that of a Victorian justice system stuck in the past.

With Ian Smart's call for ‘effective regulation to be key to any plans for change', readers can take that to mean the Law Society of Scotland will be cracking the whip over Kenny MacAskill to ensure it is conveniently appointed as regulator of choice, and internal memorandums seen by this reporter do seem to suggest that will be the case, even before the bill has been debated at the Scottish Parliament's Justice Committee.

Make no mistake, the Law Society of Scotland do not deserve any further regulatory function over the Scottish legal services market. This has been proved time and again over the decades, which have seen average complaints figures of around 5000 individual complaints a year made against less than 10,000 solicitors, leaving a trail of literally thousands of clients who have fell victim to crooked lawyers who mostly remain in practice to this day, through the protection of the Law Society's considerably corrupt system of self regulation, brutally enforced by its sinister Client Relations office.

Consumer group Which? criticised the Scottish Government for failing to bring in an independent regulator to protect Scots consumers. Which? principal public affairs officer, Julia Clarke, said : “This legislation will improve access to justice for people in Scotland and sweeps away outdated restrictions on how lawyers work.The Bill promises to breathe new choice and competition into legal services, which should lead to economies of scale and costs, and possible one-stop shops offering better service to consumers.”

She continued : “While we would have preferred an independent regulator, we are pleased that the Law Society of Scotland’s regulatory committee will have a lay majority and a lay Chair, introducing a much-needed consumer voice in this sector. It is disappointing that Advocates are not included in the new legislation, as we see no reason for them to be exempted from the opportunity to offer more choice to consumers.”

Consumer Focus Scotland broadly welcomes the Legal Services Bill. Sarah O’Neill, Head of Policy and Solicitor at Consumer Focus Scotland, said : “We have long campaigned for a more open market in legal services in Scotland and the creation of new ways of delivering them. The Legal Services Bill paves the way to open up competition in the market and widen choice for users of legal services.”

Clearly the Legal Services Bill is flawed, in respect of regulation, and the number of alternative choices it offers Scotland's consumers in terms of who we wish to represent our legal interests. You can read two of my earlier reports on the flaws of the Legal Services Bill, here : Scottish Govt's Legal Services Bill 'must do more' to break Law Society's grip on legal marketplace & give public wider choice over access to justice and a topical one on the subject of the proposals over regulation, here : Consumers & Govt insiders brand Law Society ‘too crooked’ to regulate ‘Tesco Law’ expansion of legal services in Scotland

You can download the Legal Services Bill from the Scottish Parliament’s website using the following links :

• Bill (as introduced) (469KB pdf posted 01.10.2009)
  
• Explanatory Notes (269KB pdf posted 01.10.2009)
  
• Policy Memorandum (219KB pdf posted 01.10.2009)
  
• Delegated Powers Memorandum (111KB pdf posted 01.10.2009)

The opportunity to debate the Legal Services Bill, make submissions on personal experiences on dealings with the legal profession, and suggest changes & improvements to the Scottish Government's proposals should not be missed by the public, who can contact the Scottish Parliament's Justice Committee when bill begins its path through the Parliament.

You can contact the Justice Committee by email on the subject of the Legal Services Bill, offering your thoughts, submissions and suggestions on the Legal Services Bill, here : justice.committee@scottish.parliament.uk or use their online communication form.