Holyrood's Justice Committee offers ‘cautious support’ for Legal Services Bill reforms, as lawyers fight to hold back Scots wider access to justice

Scottish Parliament supports legal services reforms. WIDER PUBLIC ACCESS TO JUSTICE in Scotland received a significant boost today as the Scottish Parliament’s Justice Committee gave their ‘cautious support’ to the Scottish Government’s Legal Services (Scotland) Bill proposals of opening up Scotland’s closed-shop monopolistic legal services market where for decades, consumers access to legal services & the courts has effectively been controlled by lawyers, advocates & the profession’s governing & self regulatory bodies such as the powerful Law Society of Scotland.

In a report published today, the Justice Committee agrees to the general principles of the Bill, which aims to widen public access to justice in Scotland and allow new entrants into the lucrative legal services market such as banks, supermarkets & others who may well provide legal services to the public at a much reduced cost than currently offered by law firms & solicitors represented & regulated by the Law Society of Scotland.

Which? campaign led to access to justice reforms now before Holyrood. Speaking this afternoon, Julia Clarke, for the consumer organisation Which?, who started the process which has led to the proposals contained in the Legal Services Bill said : 'Which? has always said we would prefer to see an independent regulator, which would have answered the concerns being expressed by the Committee. However we do believe that the Legal Services Bill will bring benefits for the public using legal services, bringing with it more competition, more choice and better value.''

Justice Committee Convener Bill Aitken MSP. Holyrood’s Justice Committee Convener Bill Aitken MSP, speaking on the Committee’s report out today said: “This Bill will enable, but not oblige, the Scottish legal profession to enter into new forms of business that could create more competition and potentially offer consumers more choice in legal services. The committee’s evidence from the consumer lobby was in the main supportive of this Bill. The evidence from the profession itself was less supportive and in some cases fundamentally opposed to the Bill’s direction of travel.

Mr Aitken continued : “The committee understands the principles behind the consumer lobby’s arguments but received little in the way of hard evidence. Without this hard evidence, it could be argued that increased competition could result in detriment to the consumer as a consequence of the loss of local and high street legal firms if banks or supermarkets enter the legal services market.”

Little in the way of hard evidence …. someone obviously hasn't been paying attention to how the legal profession has been ruining clients and restricting Scots choice of legal representatives or access to justice for decades … which has already resulted in attempts through legislation such as the Legal Profession & Legal Aid (Scotland) Act 2007 to deal with some of that hard evidence some are now intent on ignoring.

Today’s committee report also highlights concerns about:

• The extent of powers given to Scottish Ministers as a consequence of not establishing a new regulatory body similar to the Legal Services Board for England and Wales.

• The potential lack of independence for Scotland’s legal profession when it is regulated by Scottish Ministers. The committee recommends giving the Lord President a greater role in the approval of regulators in order to address this concern.

Reservations were also expressed by the Justice Committee on whether the “fitness for involvement” test contained in Section 49 of the Legal Services Bill is robust enough to regulate any outside investors, such as banks or supermarkets, as desirable institutions (or individuals) having financial stakes in law firms & legal services providers.

Factors for determining the ‘fitness for involvement’ include the investor’s financial position and business record, probity and character (including any associations) – factors which, if enforced today over many law firms I have reported on in terms of client complaints & poor service, would probably closed own several of Scotland’s ‘leading law firms’, if the true characters of some of these ‘leading lights of the legal profession’ ever became public.

On the question of opening up access to advocates, the Committee agreed with the Scottish Government that “in a jurisdiction the size of Scotland and given the relatively small number of advocates, there is no need to impose alternative business structures on the Faculty of Advocates current business model” .. an issue at odds with the OFT’s findings and consumer experiences.

The Committee also said “it is not aware of there being any significant degree of dissatisfaction with how the regulatory arrangements for advocates presently operate but nevertheless would invite the Faculty to consider what steps it might take to modernise its regulatory regime” – complaints against advocates, who would contemplate such a thing !

Law Society of Scotland wants to be ‘approved regulator’ of legal services despite history of anti-consumer bias. On the thorny question of regulation of an expanded legal services market, where the Law Society of Scotland has already stated it will seek to be the approved regulator to regulate all who provide legal services in Scotland, the Justice Committee’s report said : “Given that Scotland is a small jurisdiction, the Committee is not persuaded that there will be any great benefit in having more than one or two Approved Regulators. The Committee is particularly concerned about the prospect of bodies, external to Scotland, becoming Approved Regulators and seeks assurances from the Scottish Government in this respect.”

The Committee’s report went onto state : “The Committee observes that any body seeking to combine regulation and representation is likely to face some difficulties as a result of the inherent tension between the two roles. The Committee recognises that there are indeed tensions with and conflicting viewpoints about the Law Society’s dual role but is of the view that these are for the Law Society and its members to consider and resolve.” – this point has already led to debate & arguments between factions of the legal profession, which I reported earlier in the week, here : Lawyers squabble over control of legal services monopoly & regulation as Scots consumers forced to wait for wider access to justice

On a more hopeful note, the Committee felt that some parts of the Bill, namely Section 36 would unduly restrict the way in which voluntary or not-for-profit organisations can provide legal services. The Committee asked the Scottish Government to consider this point further after concerns were raised on this issue by Citizens Advice Scotland.

Background : The Legal Services Bill has come about in Scotland after the consumer organisation Which? issued a “super complaint” to the Office of Fair Trading under section 11 of the Enterprise Act 2002, stating that the consumer interest was being harmed the restrictions on advocates' business structures, solicitors and advocates providing services jointly, third party entry into the market, and direct consumer access to advocates.

The OFT’s response to the Which? super complaint can be viewed here : OFT response to super-complaint (pdf) along with their comments from July 2007 which stated : “Which? argued that the current restrictions against such practices prevent legal services providers in Scotland from adapting their business to best fit the needs of Scottish consumers. The OFT concluded that the restrictions are unnecessary and believes that there would be benefits to consumers if they were lifted – such as efficiency gains and higher levels of innovation in the provision of legal services.”

The Scottish Consumer Council, now renamed Consumer Focus Scotland, issued its response to the OFT’s consideration of the Which? super complaint, broadly supporting the moves to open up Scotland’s legal services market. The SCC’s reply to the OFT can be viewed HERE (pdf)

Justice Secretary MacAskill – no friend of independent regulation argument, It should be noted England & Wales already have the Legal Services Act 2007 in place, leaving Scotland trailing behind once again, simply because the legal profession north of the border has far too much influence over the pace of access to justice reforms. Missing from Scotland’s version is of course, the issue of independent regulation, where the current Justice Secretary Kenny MacAskill, seems to believe lawyers can still be trusted to regulate themselves – an obvious mistake, as lawyers have never been trustworthy when it comes to investigating complaints against their colleagues.

Over the years, many previous Scottish administrations including the present Scottish Government have dithered & delayed on giving Scots wider access to justice, while the legal profession put the brake on calls for reforms, even preventing enacted legislation from coming into effect, such as in the case of Sections 25-29 of the Law Reform (Misc Provisions) (Scotland) Act 1990, which allowed wider rights of audience in Scotland’s courts, but was held back by the legal profession’s seventeen year campaign to keep ‘outsiders’ out of courtrooms, while solicitors raked in exorbitant profits from clients who had no alternatives to turn to for legal representation.

The Legal Services (Scotland) Bill was introduced in the Scottish Parliament on 30 September 2009 and referred to the Justice Committee, who received written and oral evidence from a range of sources all of which can be found on the Justice Committee web page.

You can read my own coverage of the Legal Services Bill here : Legal Services Bill for Scotland - The story so far

Lawyers squabble over control of legal services monopoly & regulation as Scots consumers forced to wait for wider access to justice

Law Society’s argument to maintain closed shop legal services weak. The debate on the Legal Services Bill, which aims to open up Scotland’s monopolistic legal services market, currently dominated by solicitors & the Law Society of Scotland, took another twist at the weekend with the appearance on television of the current President of the Law Society, Ian Smart & the Govan Law Centre’s Mike Dailly, where chiefly, the concerns of the profession itself were debated, rather than how consumers would ultimately benefit from long needed changes to the way we choose our legal representatives & access justice.

A clip of the interview, from BBC Scotland’s The Politics Show, passed onto me makes for interesting viewing for all those concerned about how the legal profession wish to keep their business market stitched up as the long held monopoly which lawyers have been used to maintaining over the public’s access to justice.

Both Mr Smart & Mr Dailly appeared not so interested in the lot of the client, (who is after all paying for them to offer legal services as a business, rather than some noble cause which serves the community) more the representatives of the legal profession, minus anyone from the consumer lobby, appeared to focus on the internal squabble for control of the Law Society itself, and its current dual roles of representing solicitors as well as regulating them, and of course its alleged claims to represent the clients best interests, claims which we all know to be .. well … a deceit.

Law Society President Ian Smart & Govan Law Centre’s Mike Dailly on Legal Services Reform.

From the debate I note Mr Dailly brings up the well known issue of supermarkets & banks price fixing their services & products. Well of course we all know the legal profession does exactly the same, and gets away with it time & again as there is no recourse to question solicitors bills (false, padded, or genuine) other than submitting the account to an almost bogus audit to the auditor of the court, who also usually happens to be a solicitor.

I think we need less of those one sheet A4 letters with four lines of text on it, charged at £160+VAT each which solicitors are so famous for charging clients for (usually around 10 or more at a time over at least a year and nothing achieved in the client’s case) and more competition where consumers will be able to shop around for legal services rather than be ripped off by the current crop of … well .. for the want of a better term, qualified robbers ?

Fortunately for Scots, there are more sensible forces in the debate on legal services reform such as Which?, who have done a lot of work to bring the Legal Services Bill to the Scottish Parliament, after the whole process was kicked off by the Which? “super-complaint” to the Office of Fair Trading, which you can read about in a previous report, here Consumers call for OFT Inquiry to investigate restriction of legal services in Scotland

Which? recently did a survey of consumers, supporting the notion that most Scots wish to see a more open legal services market, and be given freedom of choice on who represents their legal interests, rather than being forced to use a solicitor who can basically charge what they want (that old price fixing model solicitors have been used to all these years).

Which? research concluded most Scots want more open legal services market & independent regulation (click on images to view larger versions)

For consumers to be able to trust & depend on legal services, independent regulation is a must, considering the disgraceful history of the Law Society of Scotland and now the Scottish Legal Complaints Commission on the subject of regulating complaints against solicitors.

Sadly the Scottish Governments Legal Services Bill currently lacks any significant proposals for independent regulation of legal services in Scotland, as the Law Society seems to have easily arm twisted the likes of Justice Secretary Kenny MacAskill into backing away from that idea for now … but the campaign goes on to bring fully independent regulation to Scotland’s currently ill served legal services market.

Consumer protection 'a low priority' as law firms call for split from Law Society masks solicitors power grab for Scots legal services market

Law Society of Scotland faces division over Legal Services reform. LEGAL SERVICES REFORM which would bring Scots wider access to justice is facing a new , if perhaps temporary hurdle as several solicitors & law firms who are upset over the plans contained in the Scottish Government’s Legal Services Bill, call for a break away from the Law Society of Scotland, who are now being accused of not representing solicitors best interests, by not protecting the ‘independence’ of Scotland’s legal profession – which actually translates into not protecting solicitors current monopoly over consumers access to justice.

The Legal Services Bill, which you can read more about in my previous reports HERE, if passed by the Scottish Parliament, will effectively allow much wider competition in Scotland’s currently ‘solicitor only’ dominated legal services market, freeing consumers from being forced to use a member solicitor or law firm of the Law Society of Scotland to gain access to justice or legal services.

In a reformed legal services market, banks, supermarkets and others will be able to provide Scots consumers with legal services at costs much less than those currently charged by law firms controlled by the Law Society of Scotland, who are now more widely known for their failures to represent clients best interests while charging huge fees for little work, than achieving actual successes for clients who often end up worse off than before they walked in the lawyers front door.

Those leading the call to split from the Law Society are the Glasgow Bar Association, the Govan Law Centre, along with two Glasgow law firms, MacRoberts & Thomsons , all warning that introducing Legal Services Reform to Scotland (the same reforms introduced in England & Wales during 2007 with much less fuss) will undermine centuries of independent legal representation in Scotland. While client & consumer protection appear very low down on the list of priorities in this argument which is essentially between law firms & the Law Society vying for control over the consumers right to choose their legal representative, the Glasgow Bar Association have now called for a referendum for all solicitors to decide whether the Law Society of Scotland should represent their interests.

Now that certain sections of Scotland’s antiquated, monopolistic legal services market realise their income & influence via the current business model is under threat, a drive is underway by solicitors to influence members of the Scottish Parliament to vote against the Legal Services Bill, citing among the arguments, that Government Ministers will be able to interfere in the selection of members of the Council of the Law Society, where up to 20% of the 60 will be made up of members of the public Government stooges, who could be picked according to criteria set by ministers – just like we saw at the Scottish Legal Complaints Commission, where the Law Society managed to stuff the SLCC with its own people as I reported earlier here : Call for MacAskill appointments 'sleaze investigation' as revelations show Legal Complaints Commission member was subject of Police inquiry

The problem with that argument about Ministerial interference however, is as you can see that despite Ministers apparently having the power to make independent selections, they always appear to select more stooges from the profession itself, so in reality nothing much will change, other than perhaps certain sections of the legal profession not being able to stuff the Council of the Law Society as they have always been used to doing …

Clearly solicitors don't want anyone other than solicitors on the Law Society’s ‘Council’, although that would be fine with me if the Law Society were to be stripped of its regulatory & disciplinary role, and left to be nothing more than a representative union for solicitors, rather than the all controlling, all powerful, all crooked regulator it has always been.

An official from one of Scotland’s consumer organisations branded the current debate ‘a diversion’ and accused certain sections of the legal profession from trying to obstruct reforms which would lead to greater consumer choice and protection from Scotland’s notoriously poor legal services market.

He said : “Clearly certain sections of the legal profession seem intent on staging a coup for control of the Law Society in an attempt to thwart much needed reforms to Scotland’s legal services market. This is purely a selfish move designed to promote the interests of solicitors over consumer choice.”

He continued : “The only way to resolve the fears of solicitors in this debate would be to strip the Law Society of its regulation role and that of representing clients best interests, steps we would wholeheartedly welcome.”

Law Society President Ian Smart – independence is essential. The response from the Law Society of Scotland was to claim it had always promoted independence of the legal profession as being fundamental to its support of the Legal Services (Scotland) Bill. Mr Smart said : “In its response to the Bill and during parliamentary evidence sessions, the Society insisted that independence is essential and that the role of the Lord President should be strengthened to ensure that this remains the case. The Society will continue to lobby changes to section 92, which has been raised as a concern by both the Society and its members.

Mr Smart continued : “The Bill as it currently stands provides ministers with powers to make regulations which could specify the criteria they considered appropriate for appoint ability and the number of lay members on Council and can prescribe a minimum number or proportion if they believe such a prescription is necessary. Before these regulations are made, Scottish ministers would have to consult with Council, the Lord President, OFT and other consumer bodies. That would only be the case if the Society failed to implement section 92 properly. Only the Society can appoint any lay members to the Council, not Scottish ministers. It should be remembered that most other professional bodies have for many years appointed lay members because of the qualities, expertise and talent they bring, including the GMA (General Medical Council, GDA (General Dentists ' Council), ICAS (accountants), RICS (surveyors) and the BMA (British Medical Council), which although is a representative body also has large patient representative committees.”

“It may be difficult to accept any input by politicians into how the Society functions, despite it being a body set up by statute, but the 20% lay membership on Council, which will become part of the Society's obligations, was decided by Council members and has been agreed as appropriate by ministers. This is despite continued pressure from the consumer lobby for somewhere between 50% to 75% of lay membership on the Society's council. Lay members have also been on the Society's regulatory committees for around 20 years and all now have 50% lay membership. Non-regulatory committees are predominantly made up of practicing solicitors.”

“None of this represents a handing over of independence of Scotland's largest legal profession and taking an antagonistic stance does not help negotiate any long term benefits for the profession.”

If solicitors are going to have a say in who represents them, without giving any regard as to who will represent the very clients who fund their ill deserved lavish offices & law firms, perhaps clients and consumers should also be able to have a referendum on who they want to regulate legal services and handle complaints against the legal profession.

Which? revealed recently most want independent regulation of legal services. We already know from research which has already taken place on this issue, some of it dating back over a decade from the Scottish Consumer Council, to current research undertaken by UK consumer organisation Which?, consumers have always wanted a fully independent regulator of legal services in Scotland, rather than the half way, hapless, ‘just as crooked’ Scottish Legal Complaints Commission, which now ranks among most clients as Law Society MkII when it comes to dealing with complaints against solicitors.

Only fully independent regulation of Scotland’s legal services market will resolve these and many other problems faced by consumers and solicitors alike but as we have seen from the dithering Justice Secretary, fully independent regulation of solicitors is apparently a step too far for Mr MacAskill who according to his own civil servants, is too busy purging the Justice Department than addressing issues affecting Scots access to justice …

For more on this story, read THIS REPORT in the Herald

Consumer legal chiefs question Lord Hamilton’s plans for McKenzie Friends as calls grow for fairer deal for Scots court users

Lord Hamilton’s plan for McKenzie Friends criticised. LEGAL CHIEFS from WHICH?. the well known consumer organisation who are playing a strong role in bringing the McKenzie Friend to Scotland, have raised serious questions over plans announced last week by Scotland’s top judge, Lord Hamilton, to finally allow McKenzie Friends in Scotland’s civil courts, some forty years after the well known courtroom helper to many, the ‘McKenzie Friend’, came into existence in England & Wales, during a 1970 London court case (McKenzie v McKenzie).

While initially welcoming Lord Hamilton’s proposal, to bring forward an Act of Sederunt to amend the Rules of the Court and thus finally allow McKenzie Friends to be used in Scottish courts, Legal chiefs at Which? expressed serious concerns over Lord Hamilton’s now widely criticised plan to require a McKenzie Friend have “relevant experience”, which has for now gone undefined but raises fears from many it means a legal background. I reported on Lord Hamilton’s plans for McKenzie Friends in Scotland, last week here : Exclusive : McKenzie Friends for Scotland ‘are go’ as Lord President yields to Holyrood access to justice petition for Scots court users

Deborah Prince, Head of Legal Services for Which? said in a letter to the Scottish Parliament : “We do however wish to note several concerns about the proposed implementation of McKenzie Friends and would ask that the Petitions Committee consider these in their deliberations. Namely, we are concerned that Lord Hamilton proposes a McKenzie Friend should be required to have 'relevant experience' and not be related to the litigant. We see absolutely no reason why this information should be requested or relevant in granting permission for a McKenzie Friend. We do not believe, for instance, that a husband or wife should be prevented from acting in this capacity, where the litigant feels this would be helpful. Therefore the proposal that the MF should have no interest in the case is extremely unhelpful.”

Ms Prince continued : “We also wish to take issue with the Lord President's phrase, 'quietly advising the party litigant on (i) points of law and procedure', as we feel this needs to be qualified, perhaps 'quietly advising the party litigant on points of law and procedure if/where this is appropriate'.”

The Head of Legal Services for Which? went onto query why the Lord President appeared to be intentionally refraining from even using the phrase “McKenzie Friend” within his plans, an omission which many inside & outside the legal establishment see as bringing in an unnecessary complication to the debate.

Ms Prince commented : “We note that Lord Hamilton does not use the term 'McKenzie Friend', preferring to refer to 'lay assistant'. We believe the term McKenzie Friend describes a specific function which is well understood in several countries, including England and Wales and Northern Ireland, and think it would be clearer and make more sense if the term was also adopted in Scotland.”

Clearly, Lord Hamilton, and also the Justice Secretary, Kenny MacAskill are reluctant to use the phrase “McKenzie Friend” for some reason … could it be because the legal profession in the form of the Faculty of Advocates & Law Society of Scotland don't actually want McKenzie Friends to operate in Scotland ?

Since the publication last week of Lord Hamilton’s plans for the introduction of McKenzie Friends, many experienced McKenzie Friends, consumer groups and even solicitors have expressed reservations over what appear to be restrictive conditions being placed on McKenzie Friends in Scottish courts, while McKenzie Friends in England & Wales, as well as other international jurisdictions operate without the overly harsh conditions Lord Hamilton is seeking to impose on the Scottish version of a McKenzie Friend.

One solicitor studying the Lord President’s proposals said he felt the conditions proposed by Lord Hamilton made the McKenzie Friend system “unworkable in Scotland”.

He said : “I think we all appreciate there have to be rules by which a McKenzie Friend operates, however I feel Lord Hamilton is trying to kill any chance of people developing experience as McKenzie Friends, while also severely limiting who could act in the McKenzie Friend role.”

He continued : “It almost appears from Lord Hamilton’s proposals as if he wants to curtail anyone other than someone with a legal background from acting as a McKenzie Friend. While I’m sure the court may welcome such an idea, it may well be the party litigant wishes their spouse, partner or a professional from a field relevant to their case to be their McKenzie Friend. I therefore fear Lord Hamilton’s intentions as per his letter to the Scottish Parliament appear to be an unjust restriction on who can appear as a McKenzie Friend, noting there are less restrictive practices in English courts.”

The thorny issue of remuneration for a McKenzie Friend which Lord Hamilton appears determined to prevent, also takes a battering as case law in England has already established McKenzie Friends can charge for their services, an issue taken up HERE

Forty years to bring McKenzie Friends to Scotland indicative of law reform delays. I would remind readers, when it comes to legal reforms in Scotland, the legal establishment have a habit of putting the brakes on reforms to benefit the consumer, of which the McKenzie Friends issue is but one casualty of many inequalities between Scots Law & the rest of the UK, highlighted in an article I published last year showing delays of 19 years for reforms to small claims law in Scotland, a 17 year delay to rights of audience reforms, a 27 year delay to introducing class actions to Scots Law (still being discussed !), a 17 year delay to regulatory reform of complaints against solicitors with the introduction of the Scottish Legal Complaints Commission (now a failure), and the staggering 40 year delay in introducing McKenzie Friends to Scotland.

I think its fair to say that anyone could conclude from the incessant delays in reforming anything legal in Scotland, there is wilful obstruction on the part of the legal establishment to give Scots a fairer deal when it comes to access to justice, and to back that up, just read Lord Gill’s Civil Courts Review, which depicts Scotland’s Civil justice system as being stuck in the dark ages. Lord Gill also supports the introduction of McKenzie Friends as I reported last year, here : Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

Which? ended their letter to the Scottish Parliament proposing the wider publication of the McKenzie Friend facility by the Scottish Courts Service, a most welcome proposal, as many people still report courts across Scotland are out of step after Lord Woolman’s November 2009 ruling granting the first use of a McKenzie Friend in a Scottish Civil Court action.

Which” said : “We are also keen to see the right to a McKenzie Friend well publicised, for instance on the Scottish Courts website, and litigants advised in advance that they will now have this right. Staff should also be fully informed of this change, so that they can advise litigants accordingly.“

The Lord President & Justice Secretary have so far refused to make any further comment on the issue, however some MSPs have backed calls to question Lord Hamilton’s stated plans for McKenzie Friends, when the Scottish Parliament’s Petitions Committee next hears Petition 1247