Independent Law journalists report on legal news for consumers, litigants & Scotland's legal community including features on justice, access to justice, law reform, the judiciary, politics & in-depth investigations, analysis and commentaries on legal related issues.
Scotland’s Lord President Lord Hamilton. The embarrassingly long one year debate on how to formally introduce McKenzie Friends (non-lawyer courtroom assistants) to Scotland’s courts took another turn today as it emerged, LORD HAMILTON, Scotland’s top judge has told the Scottish Parliament he does not believe in using the term “McKenzie Friend” in a Scottish court, alleging that unrepresented Scots court users are too ignorant of ‘legal language’ and the courts system they would have no idea what a McKenzie Friend actually is.
Lord Hamilton is thought to have been angry his ‘evidence’ in written form to the Scottish parliament has been widely criticised & pulled apart for misrepresenting many aspects of the McKenzie Friends debate, which has led to criticisms of the Lord President during last week’s hearing of the Petitions Committee for being overly protective of the courts system. You can watch video coverage of last week’s Petitions Committee hearing on McKenzie Friends HERE and earlier coverage of the McKenzie Friend issue at InjusticeTV
Lord Hamilton – Scots wont know what a McKenzie Friend is. Lord Hamilton in a terse response to Holyrood’s Petitions Committee said : “Both Which and the petitioner have concerns about non-use of the expression “McKenzie Friend”. With due respect, it is the substance of the proposals which is important rather than the name used and the real question is whether they deliver the right result. It is my view that a colloquial expression such as “McKenzie Friend” is not appropriate for the Rules of Court. It is an example of the sort of “legal language” (as so described by Consumer Focus Scotland), inaccessible to the wider public, which the courts are often criticized for using. It has to be borne in mind that most unrepresented litigants are coming to the court system without previous experience of it: it is in my view to be doubted that they would know what a “McKenzie Friend” is; but they might well be able to guess what a “lay assistant” might be and be stimulated to make further enquiries.”
The increasingly bitter debate, marking the Scottish legal system’s miserable attempt to bring McKenzie Friends to Scotland’s courts compares negatively to the swift court judgement in the 1970 McKenzie v McKenzie court case in England, which established the right to use a McKenzie Friend court helper in English courts, a facility now used by unrepresented party litigants in many international jurisdictions.
What took an English court one judgement forty years ago to achieve is taking Scotland’s combined legal & political figures more than a year with no end in sight. The year long peculiarly Scottish version of introducing McKenzie Friends, has so far seen the involvement of no less than two Scottish Government Cabinet Ministers, Justice Secretary Kenny MacAskill and the Community Safety Minister Fergus Ewing, several meetings of the Scottish Parliament’s Petitions Committee dating back to April 2009, a November 2009 ruling in the Court of Session by judge Lord Woolman who allowed Scotland's first Civil Law McKenzie Friend, the involvement of Scotland’s two top judges, the Lord Justice Clerk Lord Gill - who supports the introduction of McKenzie Friends via his Civil Courts Review and the Lord President of the Courts Lord Hamilton who has claimed at various stages of the debate McKenzie Friend style ‘lay assistance’ has always existed in Scotland despite no record of it being able to be produced by the Scottish Courts Service, has left Scots in general, and many unrepresented party litigants no further forward in seeing a clear set of rules on how McKenzie Friends can be used in the Scottish Courts.
Law Society of Scotland oppose McKenzie Friends on grounds of lost business for solicitors. Also of note to the debate on McKenzie Friends, is the Law Society of Scotland's opposition to the entire concept of unrepresented party litigants having the facility of non-lawyer courtroom assistance. The Law Society and the Faculty of Advocates are apparently more worried McKenzie Friends & other access to justice reforms from Lord Gilll’s Civil Courts Review will impact on business for their members while losing the legal profession their long held control over who among us actually gets into court.
Lord Hamilton – relevant to know something about the McKenzie Friend. Addressing the issue of the ‘certificate’ which Lord Hamilton wants any potential McKenzie Friend to sign prior to their appearance in Court, a move criticised by consumer groups and also addressed by the HMCS (Her Majesty’s Court Service, England & Wales) as being informal rather than compulsory, the Lord President told the Scottish Parliament in his letter : “The purpose of asking for such information is simply to provide the judge with information which may be of assistance in considering the application, and in considering any application which might subsequently be made for the permission to be revoked. It is not envisaged that applications would often be opposed, or that applications would often be made for the permission to be revoked. In the event that such a question were to arise, however, it would be relevant to know something about the McKenzie Friend.”
Lord Hamilton continued : “The fact that someone is related to the applicant would be a factor favouring allowing him to act as a McKenzie Friend, as would the fact that he was a neighbour or a friend. But the absence of any relationship would not of course mean that the application would be refused. The fact that someone had experience which was relevant to his or her providing assistance in court (e.g. as a lawyer, a trade union official or a CAB worker) would also be taken into account, but would not be essential.”
“The provision of such information would also assist the court in protecting vulnerable members of the public from the possibility of lay people who do not have relevant experience but who enjoy participating in court proceedings holding themselves out as providers of legal services.”
Lord Hamilton went on to inform the Parliament the latest version of the guidance on McKenzie Friends for England & Wales advises that the proposed McKenzie Friend should furnish the Court with a short CV or other statement setting out relevant experience. He claimed the Scottish proposals seek only to achieve a similar result in a slightly different way, although as documents from the English court authorities confirm the CV aspect of the guidance is ‘not as compulsory’ as what is intended for implementation in Scotland.
The Lord President conceded some amendments to how the McKenzie Friend issue is handled in Scottish courts may be necessary. He commented : “In light of what is said by Consumer Focus Scotland, I can see that further steps may be appropriate to ensure that judges are approaching applications for McKenzie Friends in the right way. Ultimately, these may be matters which need to be resolved by decided cases and the establishment of a coherent body of law. In any event, I can assure the Committee that I would intend to keep the matter under review with a view to making any adjustments of the rules, or issuing any guidance, which seems necessary.”
Lord Hamilton indicated in his letter to the Petitions Committee, he could still deal with the matter by way of introducing McKenzie Friends to Scottish courts via his proposed Act of Sederunt, to be discussed at the Court of Session Rules Council meeting on May 10 2009, although noting Consumer Focus Scotland had suggested it would be preferable to proceed using primary legislation to set out the general principles surrounding the use of a McKenzie Friend and then to let the Rules of Court complete the detail. He asked the Petitions Committee if he should defer any further consideration of the matter on his part until progress became clear on the issue.
In a somewhat ambiguous conclusion, Lord Hamilton appeared to give preference to the idea of using the legislative process as indicated by a recent announcement from the Scottish Government of an amendment to Stage two of the Legal Services Bill, for the introduction of McKenzie Friends to Scottish courts.
Lord Hamilton – legislation may be needed on McKenzie Friends. Lord Hamilton concluded : “The evidence from Consumer Focus Scotland appears to suggest that it would be preferable to proceed in some respects by way of guidance rather than court rules. It notes that this is the situation in England and Wales. This is not entirely correct: in England and Wales, the guidance is descriptive of a long line of decided cases on the subject. In Scotland, no such long line of decided cases exists. In order to ensure that there is an absolutely sure foundation for McKenzie Friends in Scotland, it is in my view preferable to render those principles into legislative form.”
So there we have it, the Scottish Judiciary, the Scottish legal establishment, the Scottish Courts, the Scottish Government and the Scottish Parliament couldn’t manage in over a year what one London court managed in one judgement in a divorce action over forty years ago in 1970. If there is any indication our Scottish legal system needs much more than reforming .. probably a whole reboot, then this must be one of those perfect examples to show how far the rot goes, and what must be done to repair it.
McKenzie Friends - We Scots are allegedly too ignorant to know what they are, but we are not necessarily too ignorant to be forced to stump up tens of thousands of pounds to lawyers, advocates & legal teams in the Court of Session for stringing out even the most simplest of cases to years or even decades long appearances with no clear result for clients, other than huge fees for the legal profession. An unfair system of access to justice, if ever there was one. Shame on those who preserve it. They have no standards, no decency.
Lord Hamilton dubbed ‘too protective’ of Scottish courts. MCKENZIE FRIENDS FOR SCOTLAND moved a little forward on the road to progress at the Scottish Parliament’s Petitions Committee earlier this week as independent MSP Margo MacDonald expressed the views of many consumer organisations & campaigners that Lord Hamilton’s plans as announced earlier in February to impose strict conditions on the appearance of McKenzie Friends(courtroom helpers who assist unrepresented party litigants by taking notes, suggestion questions to be asked, and quietly advising on court procedures, points of law) were “too protective”, ignoring the decades of English legal experience in McKenzie Friends appearing in courts south of the border.
Margo MacDonald – Lord President is being too protective and ignoring English experience on McKenzie Friends (click to view video) :
Margo MacDonald MSP. Margo MacDonald, speaking in support of Petition 1247, which aims to bring McKenzie Friends to Scotland, said : “I should put on record I have sympathy with the Lord President of the Council’s desire to try and ensure that the Scottish Courts system is as professional and as equitable as possible but I think he perhaps is too protective and he is ignoring the evidence of thirty years practice of McKenzie Friends in England & Wales McKenzie Friends in the court and I think the case is proved although its not within our own jurisdiction I don't think we would behave much differently in the situation which is what I imagine the Lord President is concerned about.”
Also, the question of a McKenzie Friend being an “absolute right” of any unrepresented court users came up for debate once more. Margo MacDonald said : “I think there should be a strong presumption of a McKenzie Friend and that should be enshrined in primary legislation. I think though that there should not be an absolute right to this and that a judge or sheriff should retain discretion to determine whether or not the normal conduct of the court is going to be hindered of harmed in any way it should be enhanced by having a McKenzie Friend there.”
Lord Woolman granted Scotland’s first Civil Law McKenzie Friend. The case that broke the forty year mould on McKenzie Friends in Scotland, Martin Wilson v North Lanarkshire Council & Others saw Lord Woolman grant Scotland’s first Civil Law McKenzie Friend in the Court of Session in mid November 2009, albeit forcing the McKenzie Friend to sit behind the party litigant, Mr Wilson in one of Scotland’s longest running civil damages action cases. You can read more about this in an earlier article, here : First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice
Bill Butler MSP (Labour). Petitions Committee member Bill Butler MSP commented : “We should write to the Lord President of the Court of Session asking for a response to the concerns raised in the submission by Which? magazine’ specifically paragraphs 4-7 the petitioner particularly points to point 1.1 & 1.2 and Consumer Focus Scotland I also think we should ask the Lord President will each of these concerns be addressed and in the forthcoming Act of Sederunt that he intends to bring forward and if not why not.”
However, progress on the issue took a slight left turn as expected, Nigel Don, attempted to talk down the already announced plans of the Lord President, Lord Hamilton to force hopeful McKenzie Friends to sign absolute certificates with strict conditions before they are even allowed to appear in a Scottish court to assist & take notes for their party litigant
Nigel Don MSP (SNP): Petitions Committee member & Parliamentary liaison to Justice Secretary Kenny MacAskill. Nigel Don, speaking on the thorny point of Lord Hamilton’s plans to impose a certificate on those appearing as a McKenzie Friend in a Scottish Court, announced in February which I reported on earlier HERE, said “I think its fair to say the certificate as I see it is not a certificate it is anything other than as I understand this is an an important place to be and I understand I am in court and there are some responsibilities of receiving information and how I conduct myself equally people seem to be suggesting the experience is a kind of textbook exercise if you have not got enough experience you cannot be there.”
In England & Wales, and most other jurisdictions where McKenzie Friends have been used in courts around the world for up to forty years, there are apparently no such requirements of the forcible signing of certificates for those wishing to appear as a McKenzie Friend, who is simply there to assist an unrepresented party litigant by taking notes, suggesting questions and giving quiet advice on court procedures or acts of law.
Sources say the Act of Sederunt, which Lord Hamilton announced in February with his intention to bring forward for May 2010 is mostly finished, and remains of the view there be strict requirements of a certificate to be signed before a party litigant can use the services of a McKenzie Friend in Scotland’s courts. Apparently drafts of the Act of Sederunt floating around show there to be no flexibility on this issue of the certificate, despite Mr Don’s less than convincing argument the certificate issue will not be an absolute …
Mr Don also appeared to support the Lord President’s apparent hang up on whether McKenzie Friends could be paid for their time in a Scottish Court. Mr Don said : “I do know that the Lord President is suggesting the lay assistant should not be paid in any way at all and it seems to me if that is a line he wants to maintain people will find a way around it and I want to make sure we bring that to his attention as well.”
Margo MacDonald interceded, commenting that it has been suggested by Consumer Focus that a simple question asked by the judge or sheriff are you being paid for this if the person ‘tells a porky’ he can be put away for perjury.
Oddly enough, Consumer Focus Scotland are against McKenzie Friends receiving payment for their services to party litigants, this despite the fact McKenzie Friends in England & Wales, and many other international jurisdictions have for years been able to charge for their services without much dispute from courts.
However, today, some who have acted as McKenzie Friends in England & Wales questioned why Lord Hamilton has such a hang up over the issue of whether a McKenzie Friend can receive remuneration for their services.
While the Scottish Parliament & consumer groups argue over whether a McKenzie Friend can or cannot receive payment for their services, apparently on the ludicrous possibility of penalty of jail time, there is now case law in the English courts family division to support the right of a McKenzie Friend to charge for their services, where Mr Justice Munby, ruling over a case of costs arising from contentious contact and residence litigation between unmarried parents [N (A Child) [2009] EWHC 2096 (Fam)] concluded the child’s father's McKenzie Friend "is entitled to charge, if he can find clients willing to pay his fees, at an hourly rate which can hardly be said to be extravagant when contrasted with the fees one frequently finds being charged to privately paying clients in family cases".
One English solicitor of 30 years experience who in his spare time has appeared as a McKenzie Friend for an unrepresented party litigant said : “Lord Hamilton’s apparent desire to send any McKenzie Friend who asks for or receives money for their services in Scotland to a firing squad at dawn seems itself to be an obstruction to the many unrepresented party litigants even being able to obtain a McKenzie Friend in the first place. I think the Lord President’s hang-up over a Scottish McKenzie Friend receiving a fee for their services is more to do with lobbying from the legal profession rather than an interest in how well the conduct of the court proceeds.”
He continued : “I think it comes down to the fact that a McKenzie Friend might end up charging £30 an hour for his services, while solicitors and full legal teams can cost anything up to £5,000 an hour in Scotland’s Court of Session. Its not rocket science to work out the Scots legal profession are worried they are going to lose a lot of revenue if clients chose the unrepresented party litigant approach to court cases and employ a much cheaper yet effective McKenzie Friend than hiring an expensive legal team which might cost a lot but not win the case anyway. As I see things, it is this factor which is the real opposition to a McKenzie Friend being paid or not, not the actual smooth running of the court.”
Lord Woolman granted Scotland’s first Civil Law McKenzie Friend. The case that broke the forty year mould on McKenzie Friends in Scotland, Martin Wilson v North Lanarkshire Council & Others saw Lord Woolman grant Scotland’s first Civil Law McKenzie Friend in the Court of Session in mid November 2009, albeit forcing the McKenzie Friend to sit behind the party litigant, Mr Wilson in one of Scotland’s longest running civil damages action cases. You can read more about this in an earlier article, here : First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice
Clearly as I have thought all along, the issue of bringing McKenzie Friends to Scotland’s courts comes down to competition, and the fears of the legal profession they will lose business. Well, as far as I’m concerned, that's a good thing. If expensive legal teams are so expensive and so poor quality as we are forced to expect on a daily basis in the Scottish courts that they will often drag a case out for years, take it to all the courts in the land and achieve no success while presenting the litigant with bills for tens of thousands of pounds, then the legal profession deserve to lose the business.
The prospect of lost business for lawyers should not factor into the Lord President’s decisions on when and under what format to allow McKenzie Friends in Scotland’s courts, especially since the legal profession have been so effective at excluding McKenzie Friends from Scotland for the past forty years, simply, due to … greed.
What is your response to each of the concerns raised in the submission by Which? magazine, specifically in paragraphs 4 to 7 (PE1247/AA), the petitioner (PE1247/EE), particularly points 1.1 and 1.2 and Consumer Focus Scotland (PE1247/FF)?
Will each of these concerns be addressed in the forthcoming Act of Sederunt you intend to bring forward? If not, why not?
However, as has been noticed by many observers, the Lord President has already refused to answer the Petitions Committee’s earlier questions, put to the Lord President on 9 February 2010, where the Committee asked :
What is your answer to the concerns of the petitioner (PE1247/V) regarding the lack of awareness of the Court of Session about the existence of such a facility? How will this be addressed and when?
Can you confirm that there is a presumption in favour of a “McKenzie friend” to assist a party litigant, unless deemed unsuitable by the Court?
Now we must await to see whether the Lord President will this time, answer the Parliament substantively, or simply respond with plans which end up leaving more questions than answers, while also leaving the rights & entitlements of Scottish court users at a major disadvantage compared with our English colleagues …
Law Society of Scotland in legal dispute withScottish Legal Complaints Commission. As revealed earlier this week in reports of Ministerial interference with the Scottish Legal Complaints Commission, apparently ordered by the Law Society of Scotland to secure a decrease in the annual complaints levy solicitors are forced to pay for complaints regulation, the Law Society of Scotland have taken legal action in at least four instances against the Scottish Legal Complaints Commission.
Community Safety Minister Fergus Ewing would rather the SLCC’s £1.5 million surplus be paid to lawyers instead of being used to stem public services cuts in the community. The Scottish Legal Complaints Commission have released limited details of the cases, by way of comments responding to the Community Safety Minister Fergus Ewing’s intervention directly on behalf of the Law Society in the budget dispute, which saw Mr Ewing go on to threaten the independence of the SLCC should it not comply with the Law Society’s wishes to lower the complaints levy.
The battle over the complaints levy began when the SLCC revealed it had a huge £1.5 million cash surplus, which consumer groups and politicians are now calling to be paid back to the public purse to cover the commission’s £2 million start up costs. Meanwhile the Community Safety Minister Fergus Ewing is, curiously in favour of seeing the SLCC’s £1.5 million go back into the pockets of his colleagues in the legal profession, rather than help keep afloat public & community services across Scotland.
However, the Law Society are keen to counter any moves to pay back the money to taxpayers, and have opted for a combination of legal action, political intimidation and a public campaign by some of the Scottish legal profession’s more widely known, wider-mouth personalities against the very existence of the SLCC, hoping to force the Commission to refund lawyers the £1.5 million instead repaying the public purse to fund services such as health, education, justice, or community services.
Jane Irvine revealed the Scottish Legal Complaints Commission faces costly legal action from the Law Society. From the SLCC’s media release of earlier this week. Jane Irvine, the SLCC’s Chair said : “Every new complaints body faces an early tranche of appeals over the first 3-5 years of its operation as powers are tested, and currently we are dealing with four Court of Session appeals, lodged by the Law Society of Scotland, under which the Law Society infers that they do not wish to investigate these particular conduct issues.
Jane Irvine continued : “We must have sufficient reserves to defend legal actions and to be in a position to balance the strength of the legal profession as it raises appeals against the lesser strength of consumers, who will raise fewer appeals. We already know the SLCC is facing significant legal costs and, depending on the outcome of these appeals, we may need to change how the SLCC operates.
The Law Society itself will not release comment on their legal action against the Scottish Legal Complaints Commission.
A listing of the cases and their hearings so far, appear from the rolls of the Court of Session as follows :
Wednesday 24 June 2009 (Single Bills Extra Division) 3 Law Society of Scotland (represented by Balfour & Manson LLP) for leave against a decision of the SLCC.
Friday 13 November 2009 (Single Bills Extra Division) 19 Debbie Williams (Macbeth Currie & Co) for leave to appeal SLCC
Friday 11 December 2009 (Single Bills Extra Division) 3 Law Society of Scotland (represented by Balfour & Manson LLP) for leave v SLCC
Friday 8 January 2010(Inner House Rolls Second Extra Division) 1 XA129/09 James McCann (represented by Balfour & Manson LLP) v Scottish Legal Complaints Commission (represented by Shepherd & Wedderburn)
Tuesday 26 January 2010 (Single Bills Extra Division) 4 Debbie Williams (Macbeth Currie & Co) for leave to appeal SLCC
Friday 12 February 2010 (Single Bills Extra Division) 1 Law Society of Scotland (represented by Simpson & Marwick) for Leave to Appeal decision of the SLCC
Tuesday 2 March 2010 (Single Bills Extra Division) 4 Law Society of Scotland (represented by Balfour & Manson LLP) for leave to appeal decision of SLCC.
Wednesday 24 March 2010 (Single Bills Extra Division) 2 Law Society of Scotland (represented by Balfour & Manson LLP) against a decision of the SLCC (represented by Shepherd & Wedderburn).
Community Safety Minister Fergus Ewing tells SLCC : Give lawyers a £1.5m refund or else we take away your independence.FERGUS EWING the Scottish Government's Minister for Community Safety has demanded the independent Scottish Legal Complaints Commission use its massive £1.5m surplus to lower the annual complaints levy which solicitors have to pay each year to cover the Commission’s costs of investigating complaints made by clients against their lawyers. The move has surprised many, as under the terms of the Legal Profession and Legal Aid (Scotland) Act 2007, the SLCC is independent of Government and the legal profession.
Law Society of Scotland lobbied Scottish Government to reduce complaint levy which funds investigations against ‘crooked lawyers’. The unprecedented move by Mr Ewing, comes after the Scottish Government was lobbied directly by the Law Society of Scotland to intervene in the budget levy dispute with the SLCC, forcing a quick, quiet reduction of the complaints levy, after law campaigners and MSPs began to question why the Scottish Government had not asked the SLCC to repay its massive £2m formation costs to the public purse.
Mr Ewing’s direct intervention on behalf of the legal profession, coming just a few weeks after I reported Mr Ewing had announced plans for Ministerial appointments to the Law Society of Scotland’s Council had been withdrawn after some more lobbying from the Law Society, is being widely seen as nothing short of Ministerial interference in an ‘independent’ body, particularly after Mr Ewing apparently issued a threat to review Ministerial powers over the Scottish Legal Complaints Commission if it does not comply with the Law Society of Scotland’s desire to see the complaints levy reduced.
Community SafetyFergus Ewing writes to Scottish Legal Complaints Commission, demands reduction of complaints levy for lawyers. The letter from Mr Ewing to the SLCC, recently released, states : “I note that you have used some of your reserves to offset any increase in the general levy and that is commendable, but I am strongly of the view that this does not go far enough. I understand that this financial year you have generated income of around £2.3m and that your predicted costs of £2.9m are now forecast to be £2.6m. The shortfall between income and expenditure will be met by your contingency fund should that remain untouched and in effect your budget will balance this year. However the surplus finds generated during your first 9 months of operation recorded as £1.5m are likely to remain untouched.”
Mr Ewing continued : “Whilst I recognise that during your initial year of operation the workload and consequently expenditure was difficult to predict, having built up an significant reserve fund in this financial year, it is essential that the Commission takes full account of this reserve in determining the amount of annual general levy and the complaints levy that is reasonably sufficient to meet its expenditure for the next financial year. When the Commission has existing reserves, it must ensure that, taking one financial year with another, the amount of the proposed general levy and complaints levy is reasonably sufficient to meet its expenditure, in particular, any estimated shortfall including for contingencies.”
Community Safety Minister Fergus Ewing threatens a review of Ministerial powers over the SLCC if it refuses to lower the complaints levy. Fergus Ewing continued in his letter to the SLCC’s Chair, Jane Irvine : “I do not think it is sufficient to use these reserves to merely off-set an assumed increase in the proposed amount of the annual general levy for next year. I therefore invite the Commission to give early and serious consideration to reducing the proposed amount of the annual general levy and the complaints levy to ensure that these do not, taking one financial year with another, exceed what is reasonably sufficient to meet its expenditure.“I appreciate that this is important for the SLCC to manage their financial risks and hold some contingency funding and I know that officials here would be happy to discuss how this could be achieved in ways which do no to rely on large reserves. I appreciate also that, as the legislation stands, the levy is a matter for the SLCC to determine, and that Ministers have no powers to order the SLCC to take any particular action in respect of the levy. It is for the SLCC itself to ensure that the level of charge is justifiable, in the light of the demands on it. I trust that you will exercise that discretion appropriately, having regard to the views expressed by consultees.”
Fergus Ewing ended his letter with an apparent threat : “I would wish to give fair notice that Ministers will review the situation following the setting of this year’s levies to see whether any change in the respective powers of Ministers and the Commission is desirable.”
A legal insider indicated the Law Society had decided to push the matter after they had become concerned calls for the SLCC to repay its millions to taxpayers might gain ground, and scupper the chance of solicitors getting a refund on the complaints levy.
He said : "Officials at the Law Society were furious some were suggesting the SLCC repay their £1.8 million start up costs met by the taxpayer and saw a real possibility this idea may gain ground particularly since the Commission is sitting on a £1.5 million cash reserve in a recession where the daily talk is of more cuts to public services.
It has also emerged there are at least four cases in the Court of Session where the Law Society of Scotland are taking legal action against the Scottish Legal Complaints Commission over the Society’s remaining duties to regulate conduct complaints. A legal insider today alleged the Law Society’s lobbying of the Scottish Government under the circumstances of it pursuing the SLCC in the courts “is entirely inappropriate”.
He said : “The Law Society calling in the Scottish Government to intimidate the Scottish Legal Complaints Commission over the complaints levy may well be a tactic connected with the Law Society’s court actions against the Commission, or an intent to disturb the SLCC’s regulatory function investigating complaints against the legal profession, a function which we all are very well aware the Law Society wants back within its grip.”
He continued : “In the light of this incident, there should be a full investigation of Mr Ewing’s conduct and the disproportionate lobbying access the Law Society of Scotland and legal profession appear to have with the Scottish Government. It cannot be that a Minister gets involved to such a degree in what are decisions the law says should be taken independently and without influence from Government”
SLCC Chair, Jane Irvine. Jane Irvine, Chair of the Scottish Legal Complaints Commission gave reaction to Communities Minister Fergus Ewing’s intervention on behalf of the Law Society. Commenting on the SLCC budget consultation responses, Jane Irvine said: “In February, we received responses from the Faculty of Advocates, the Law Society of Scotland and comments from the Scottish Government Minister for Community Safety, Fergus Ewing.The Minister’s letter repeated some of the points raised by the Law Society of Scotland with regard to the SLCC reducing its reserves in order to reduce the Solicitors’ Levy. “The SLCC Board has, however, raised concerns at the Minister’s inference to the level of control the Scottish Government may wish to exert over the operation of the SLCC, should our Board decide against reducing the Solicitors’ Levy.”
The Scottish Legal Complaints Commission are facing four cases ongoing in the Court of Session where the Law Society refuse to investigate certain conduct issues. Jane Irvine continued: “The SLCC has endeavoured to clarify for the Minister the rationale behind our reserves policy, explaining that reserves are for unforeseen events and reflect what the SLCC Board considers to be the risks facing the Commission. Every new complaints body faces an early tranche of appeals over the first 3-5 years of its operation as powers are tested, and currently we are dealing with four Court of Session appeals, lodged by the Law Society of Scotland, under which the Law Society infers that they do not wish to investigate these particular conduct issues. We must have sufficient reserves to defend legal actions and to be in a position to balance the strength of the legal profession as it raises appeals against the lesser strength of consumers, who will raise fewer appeals. It is simply not feasible for the SLCC to be acting in a defensive manner when making decisions.“
Jane Irvine continued: “We already know the SLCC is facing significant legal costs and, depending on the outcome of these appeals, we may need to change how the SLCC operates. “This could mean a review of our processes and procedures resulting in the need to substantially increase the size of our Gateway Team which is currently served by ten members of staff.“
The media release from the SLCC concluded by stating : “The SLCC Board will meet later this month to discuss the Minister’s comments regarding the independence of the SLCC from the Scottish Government and the legal profession, the level of reserves held, the implications of reducing the solicitors’ levy, our ability to meet the costs of appeals and our ability to fulfil our obligations to consumers should the Court decision result in changes to how we operate.”
James Kelly MSP, (Labour) Glasgow Rutherglen.James Kelly MSP, a member of the Scottish Parliament’s Justice Committee queried whether the SLCC could justify its huge £1.5m budget surplus under current financial conditions. He said : "At a time when budgets are under pressure it is correct that questions are being asked as to why the SLCC need to retain a surplus of £1.5m. If the SLCC are unable to justify this surplus then consideration needs to be given to the steps required to bring the monies back within the remit of the general budget."
Asked for reaction on Communities Minister Mr Ewing’s intervention on behalf of the Law Society of Scotland, a Scottish Government spokeswoman said: "The Minister is entitled to make his views known to the Scottish Legal Complaints Commission (SLCC), and any future changes which might be considered to ensure the SLCC operates efficiently and does not impose unnecessary burdens on the legal profession would ultimately be for Parliament to consider."
An official from a Consumer organisation condemned Mr Ewing’s intrvention on behalf of the Law Society of Scotland while the Scottish Government had refused to help members of the public who had lodged complaints against ‘crooked lawyers’.
She said : “What we now have here is a Scottish Government Minister saying he prefers that lawyers get a multi million pound refund rather than maintain dwindling public services. If Mr Ewing wishes to put lawyers before the Scottish public he should go back to being a lawyer instead of remaining in Government.”
Clearly the conduct of the Communities Minister Mr Ewing amounts to what many will view as Ministerial lobbying on behalf of the legal profession, coupled with a veiled threat of action if the aims of the lobbying (to reduce the complaints levy for solicitors) are not met.
In view of what has taken place, and the information with regard to the court cases involving the SLCC & Law Society of Scotland, which taken together, directly impacts on the ability of the SLCC, an independent regulator which was created by legislation designed to protect consumers from poor legal services, I support calls for a full investigation into the amount of lobbying power & access to politicians the Law Society of Scotland seem to enjoy – lobbying power which is now clearly not in the public interest for the Law Society, or legal profession, to retain …
