Wednesday, April 30, 2008

Law Society grabs control over paralegals in moves to regain monopoly control over Scots legal services market

Despite last year's Office of Fair Trading's recommendations to open up the Scottish Legal Services market to competition, the Law Society of Scotland has maintained a steady policy of pursuing its policy of protecting its monopoly over access to legal services in Scotland.

Last week, in attempts to placate the cries for freedom of choice in legal services, the Law Society released the Alternative Business Structure policy document, deservedly, as it turns out, to much criticism & condemnation by consumer groups and the public alike where it appears that long discussions & consultations with the membership at large have been generally ignored, the Law Society preferring to extend its grip into the murky world of paralegals.

So, over to less public choice and ever more regulatory failures as clients get a weaker, less safe legal service than ever in Scotland.

The Scotsman reports in the following article that Law Society control over paralegals would be good for clients - but the truth is it will be very bad for clients if the history and habits of the Law Society of Scotland are anything to go by ....

Paralegal registration scheme is good news for the profession and for clients

By Neil Stevenson

WHAT will becoming a Law Society of Scotland registered paralegal actually mean?

The status is a badge of quality, indicating that the holder has met certain academic standards, has a certain amount of work experience and can carry out work to a prescribed standard.

We must emphasise that the exact arrangements are still under discussion, but having spoken to most of the concerned parties we have a clear idea of how the final proposal may look.

The Law Society is proud that this is a true partnership project, with the society and the Scottish Paralegal Association working closely to ensure that this new scheme brings benefits to everyone involved.

Paralegals who have attained a formal recognition under the scheme will be eligible to apply for entry to the register. A wide range of qualifications are likely to be considered relevant, from HNC/HNDs provided by Scotland’s colleges to provision from respected commercial providers such Central Law Training and Rewards Training.

We are also delighted to have worked with the Scottish Qualifications Authority (SQA) to redevelop an HNC/HND in legal services, and are now moving to develop professional development awards in a variety of key areas of law. For the first time this will provide a qualifications framework for paralegals.

Paralegals will then need to undertake an assessed year in practice, supervised by a solicitor. Those already with office experience may be able to follow an accelerated route, with the emphasis on ensuring all those becoming registered meet the required standard.

Those achieving registration will be required to complete annual ongoing training and will have to uphold standards laid out in a code of conduct. A complaints process will be put in place, but the emphasis will be on upholding standards through a variety of regulatory approaches.

There is no doubt that paralegals already provide a valuable service within the legal market, but at the moment anyone can call themselves a paralegal. Introducing a registered status will mean that employers can be sure of the standards met by employees. It will also give paralegals the professional recognition they deserve. And clients will benefit from knowing that the paralegal, who they may have more direct contact with than a solicitor, has been assessed properly.

This development also represents continuing change at the Law Society of Scotland. An innovative regulatory approach has been developed to tackle the issue, and state-of-the-art IT will underpin compliance.

This is also a year when the Society’s own governance arrangements are being reviewed and are likely to significantly alter following the move to bring in more experience from outside the profession and streamline our management.

• Neil Stevenson is from the Law Society of Scotland.

Monday, April 28, 2008

Lord Advocate Angiolini caught in 15% flap - can Scots justice get any worse ?

In part three of our worrying light entertainment series for readers, we feature a video clip of the Lord Advocate Elish Angiolini claiming some 15% of cases go to court in England & Wales where the accused isn't present ..... almost sounding as if the same should be applied in Scotland !

The then Deputy Justice Minister Hugh Henry MSP can be heard whispering fifteen percent in disbelief in the background ... tut tut for those live microphones, Elish !

Elish Angiolini ... its the 15% that don't need to make it !

Scots Tory Justice Committee Convener praises man who ruined Scotland's legal industry

Our light entertainment series continues at Scottish Law Reporter, with a video clip from the Scottish Parliament of Scots Conservative Justice Spokesman & curiously, the Justice Committee Convener, Bill Aitken, praising, almost idolising the outgoing Law Society Chief Executive Douglas Mill ... known to many inside & outside Scotland as the man who ruined the Scots legal industry.

Very sad times for Scotland as those who have brought so much trouble, confrontation & antagonism to the legal profession should receive such praise ... an indication perhaps of the diminishing, dwindling, almost dead values of Scots politicians these days ?

Bill Aitken - Scotland should be proud of those who ruined its legal profession !

Sunday, April 27, 2008

Scots Justice Secretary Kenny MacAskill - 'I will defend lawyers' (we hope not)

In a little light entertainment for readers, here is the Justice Secretary Kenny MacAskill protesting he will protect lawyers from those who malign us (oh we hope not Kenny ...).

Perhaps Mr MacAskill might want to find himself a new less prejudicial speech writer than Douglas Mill ?

Kenny MacAskill - I will defend lawyers in honour of Douglas Mill's granny's grave ...

Kenny MacAskill - SNP Government owes a debt to lawyers so pull our strings please ...

Saturday, April 26, 2008

Law Society on legal services market reforms - keeping it in the monopoly please

Full steam backwards at the Law Society of Scotland as the Scotsman reports on the Alternative Business Structures proposals ...

Bit of a short report in the Scotsman, indicating presumably they couldn't find too many people who would believe it ?

The Scotsman reports :

Legal update

NEWS

THE Scottish legal profession could be set for a radical change if proposals from the Law Society are accepted next month. The society's plans, set out in a policy paper issued to its 10,000 members, suggest changes to the way in which legal firms are run. They include permitting non-solicitors and solicitors to enter into partnership and extending the legal services that can be offered by banks and supermarkets.

Richard Henderson, the president of the Society, said: "There have been significant changes within the profession in recent years, and this policy paper is a reflection of that and the desire to see further change.

"This debate is not just happening in Scotland. The Legal Services Act 2007, which will allow legal firms in England and Wales to adopt different business practices, is coming into effect and will undoubtedly have an impact on Scottish firms and how they can compete in the wider legal market."

The proposals will be debated at the society's AGM on 23 May and then brought before the Scottish Government, which will decide whether any legislative change is required to accommodate the changes.

• AN agreement has been reached to register paralegals with the Law Society of Scotland, the governing body for solicitors. The scheme, a partnership between the society and the Scottish Paralegal Association (SPA), is expected to benefit clients, paralegals and solicitors. A discussion document on the proposals is will be published this month and the scheme could be up and running later this year.

PEOPLE

FOLLOWING the retirement of Michael Lugton, the new Chief Executive of the Scottish Law Commission took up office on 14 April. Malcolm McMillan has held various legal posts within government since 1982 and is on secondment from the Government Legal Service for Scotland. From 1999 to 2003 he was the deputy legal secretary to the Lord Advocate, and prior to his appointment to the commission he was the divisional solicitor for the rural affairs division in the Scottish Government Legal Directorate.

COMMERCIAL firm McLure Naismith has announced the appointment of five new partners as part of its drive to integrate its Scottish and English practices. From within the firm, Stewart Whyte and Stewart King are promoted from associate level to join external recruits Campbell Normand and David Hughes from HBJ Gately Wareing, and London-based Kit Stenning, who joins from DMH Stallard.

SEMPLE Fraser has recruited Gordon Hollerin as a partner to lead its insolvency and corporate recovery team. He was previously managing partner of DLA Piper in Scotland and brings with him solicitor Fiona Carlin to join existing partner Scott Kerr and dedicated insolvency lawyer Jennifer Antonelli. The firm has also announced the departure of partner Rachel Grant from the same team.

THE strategic land team of Bell & Scott has announced the recruitment of Jamie Hunter from Shepherd+ Wedderburn. A specialist planning lawyer, Hunter has experience of PPP and PPI projects and was previously a legal adviser to the planning department of Aberdeenshire Council. The firm has also announced the promotion of construction lawyer Pat Loftus to partner. He will join Brandon Malone to head up Bell & Scott's construction team.

MCGRIGORS has launched a new planning team with a UK-wide focus. Drawing from its real estate, commercial litigation and environment practices, the new group will include five partners, offering experience in all aspects of planning practice and will be led by Jacqueline Harris.

This is the third such grouping of expertise by McGrigors in as many months, following the introduction of new teams covering private equity and capital market transactions.

AWARDS

LOUISE Freedman, the marketing manager of Morisons Solicitors, has been nominated for a prestigious marketing award. Freedman has been shortlisted for the newcomer prize at the Legal Marketing Awards organised by legal publisher Legalease. She is the only Scottish nominee to make the shortlist and is recognised for her work with Morisons in the past 18 months.

EVENTS

• THE winners' dinner for the 6th Cuthbert Scottish Legal Awards 2008 will be held on 15 May at Channings Hotel in Edinburgh. All category winners are invited to celebrate their success with judges and organisers of the programme, which is sponsored by Bank of Scotland Corporate. Anderson Strathern won three awards at the ceremony in February, including the coveted TFB Firm of the Year title.

Advocates bolt from the stables to claim better service as clients cite worst legal service in living memory

Never too late for a quick advertisement to promote legal services in Scotland these days ... oh you need a lawyer for that fall in the supermarket so you better get one quickly .. but despite recent 'improvements' in legal services offerings - as claimed by the legal profession itself, clients are coming to terms with the worst level of legal services in Scotland ever ...

A solicitor who recently contacted us at SLR with a file on how poorly an advocate represented his client claimed the Faculty's spin on new services and competence from Scotland's advocates masks the dire performance many have given clients in Court proceedings ...

Come to Scotland and don't advance your legal business ? Surely not a good advertisement for justice ...

The Scotsman reports :

New model army of advocates is making advances

By JENNIFER VEITCH

THE so-called 'devolution' of stables was the biggest shake-up at the Faculty of Advocates for a generation. But a year on, are these new chambers-style groups offering clients a better service – and will they help advocates compete with the oncoming march of the alternative business structure?

Axiom Advocates, one of the first and most high profile stables to 'devolve' from Faculty Services Limited, reports that its new approach, focusing on specialist areas of the law and selecting members on merit, has been a success so far.

David Johnston QC – one of 10 'silks' who have enabled Axiom to boast such heavyweight expertise in commercial and public law – says the group has been so busy it has had to turn some cases away.

He adds that it is too early to say whether the new model is more efficient or cost-effective, but he argues that the ability to specialise and to choose members has obvious advantages for clients.

"If you look back a year, we had all these stables, as some of them are still calling themselves, with members there as a matter of chance," he says. "In the old days, you routinely followed your devil master into the stable he or she was in. That ceased to be practical, and the stables didn't have any focus on particular subject areas.

"It's true that not all the stables specialise, and not all select their members in the way we do. But those are the two things that have made a real difference."

Johnston says the new model has allowed advocates to work more closely, for example by exchanging information on developments in the law and working together to deliver the Third Thursday series of monthly lectures. "The most obvious thing we had done is to set up these monthly events where we provide training for ourselves and others," he says. "On a more internal level, we do have practice groups with members who try to keep up to date in particular areas. These things would have been possible in the past, but never happened."

The faculty shake-up has enabled advocates to work together as closely as possible while remaining within the rules that prevent members from entering into partnership, he adds.

"I do see our function as being more as members of a team," he says. "In the old days, the notion was that the Bar was a bunch of individuals competing against each other.

"Of course, that has not disappeared. But what we have been trying to do is create more of a team mentality, and some of our members do work together on cases for particular clients."

Axiom has also taken on board feedback from clients about giving clearer information about levels of service and fees, he adds, and members are well aware of the competition from other stables, solicitor advocates and even the English Bar.

"We set off at the outset asking, 'how can we improve the quality of service?' We homed in on the fact that often clients would like much more information," he says. "Routinely, our clients enter into fee arrangements so there are no unpleasant surprises.

"We need to constantly be aware that it is a very competitive marketplace, and we need to make sure that the services we offer are excellent."

While Johnston says Axiom has had a busy first year, there seems little room for complacency as an already competitive marketplace looks set to become even more challenging.

A few days ago, the Law Society confirmed it would support the introduction of alternative business structures – subject to the approval of members at its AGM next month, and provided there is appropriate regulation.

However, Johnston is not keen to see the faculty relax its rules on partnership at the Bar, and he wants advocates to remain independent practitioners.

"It does seem to me that there will always be room for an independent referral bar – clearly the moment we end up with partnership of advocates we are faced with conflicts of interest. So it seems to me pretty clear, in a small jurisdiction like this, that it would lead to more restriction on access to legal representation if we were split into a few partnerships.

"We recognise that there are these pressures – the only way that we can reasonably expect people to refer is because we have shown we have the experience to do that business."

There are other advantages to working independently, he adds, as the fact that Axiom's members are not partners means that opposing parties are still free to instruct counsel from the same group of advocates.

"We very often appear against one another – it's just one of those aspects of life at the Bar," he says. "I don't think it has become any more difficult for us."

The advocates' business model also means they are better suited than solicitors to allow counsel to act for and against the same party in different cases, he says.

"In a way, that is one of the curiosities of the bar. Unlike solicitors, who may have a working relationship with a client, it's recognised that we may sometimes act for one client and then another."

But, in the light of increased competition from solicitor advocates and the very real prospect of alternative business structures, Johnston says advocates should be shouting louder about the benefits of using their services. And he sees direct access as their best chance of countering the competition.

"The faculty rules on direct access were relaxed last year and it might be fair to say that there is scope to try to develop that," he says.

"Unless one goes out and explains to the professionals involved that they are able to instruct us, then it has probably passed them by. We need to make it clear that we are there to provide a service and that they can do that without necessarily involving a solicitor. There is a huge potential in the direct access market."

And Johnston adds that increasing specialisation will be needed if advocates are to remain competitive.

"Solicitors are not generalists to any extent, so it does not seem to make much sense to be able to claim to do everything either," he says. "We need not just an understanding of legal reasoning, but there is a lot of law as well.

"I think that's what makes us different from what went before. That's why we are able to make the claims for quality that we do make, and that is also what equips us to compete in a competitive environment."

Friday, April 25, 2008

Kenny MacAskill - Reduction of Scots jury members on the cards

In a push on squeezing Scots rights from all corners, Justice Secretary Kenny MacAskill recently comments he would be open to reducing jury sizes from 15 down to 11 or even fewer (none ?).

Hopefully more informed elements of the legal profession will grasp the matter and take it in hand ...

BBC News reports :

Review could reduce jury numbers

The number of people serving on a jury could be reduced as part of a review by the Scottish Government.

Justice Secretary Kenny MacAskill said he would be open to reducing jury sizes from 15 down to 11 or even fewer.

The Scottish Government is to carry out a public consultation on the jury system this summer.

In an interview for The Firm legal magazine, Mr MacAskill said he would be surprised if the investigation found the current 15 was the right number.

At the moment, Scotland has the largest number of jurors sitting in a criminal trial in Europe.

Mr MacAskill said: "We have to get the right system for the next and for other generations.

He added: "In some jurisdictions, it could be down as low as seven for some matters, up to 11 for others."

The justice secretary said the Scottish Government was keen to look at a system that had not been reviewed "since almost time immemorial".

The Firm magazine is campaigning to reduce the size of a jury in Scotland from 15 members to 11.

Editor Richard Draycott said jury remuneration costs £4m per year.

He added: "We will continue to speak up for the interests of the profession and campaign for evolution and reform of the law if there is a strong argument for doing so."

A Scottish Government spokesman said: "We intend to launch a public consultation on juries in the summer.

"This will examine a range of issues including jury composition, age limits, remuneration and issues about selection.

"However, as with any consultation we have no fixed views and hope to hear from a range of interested groups and individuals."

Law Society ABS market reforms - Charter for control over public access to justice

The good old Law Society of Scotland, proving yet again its mentality is stuck in the past, where protecting the market monopoly on access to justice takes precedence over change & reform.

Only the Law Society could manage to put forward a press release claiming reform is in the air, while pushing for monopoly control over everything law ... and that part about the vote .. well .. what's a vote worth when its at gunpoint ?

Law Society Media Release :

LAW SOCIETY OF SCOTLAND PUTS PROPOSALS ON CHANGE TO THE VOTE

The Scottish legal profession could be set for radical change if Law Society of Scotland proposals for how solicitors can run their businesses go ahead.

The Society has issued a policy paper setting out its vision for the development of legal services in Scotland to its 10,000 members who will decide on whether to accept the proposals at the Society’s annual AGM on Thursday, May 22.

Richard Henderson, president of the Society, said: “There have been significant changes within the profession in recent years, and this policy paper is a reflection of that and the desire to see further change.

“This debate is not just happening in Scotland. The Legal Services Act 2007, which will allow legal firms in England and Wales to adopt different business practices, is coming into effect and will undoubtedly have an impact on Scottish firms and how they can compete in the wider legal market.

“We do not think that the Society should simply follow the English model but should find solutions specifically to meet the needs of the Scottish public, ensuring proper access to justice, and Scottish business, as well as creating opportunity for firms based in Scotland to compete in a growing international market.”

The legal profession as a whole currently contributes about £1.3 billion to the Scottish economy, with around 1.200 legal practices and more than 3,000 in house lawyers working in Scottish business.

Henderson added: “The Society has taken up the Government’s challenge of formulating proposals for change and it is now for the profession to decide on its course for the future.

“This is only the first step. After the AGM we will take the final proposals to the Scottish Government. That will be the start of the next stage of looking at just how legal services should be developed and regulated in Scotland and whether it will require any legislative change.

“There is a lot of work to be done but ultimately we want to see the legal sector continue to flourish and that clients are assured of a professional, properly regulated service wherever they choose to get their advice."

ENDS

NOTES TO EDITOR:
The policy paper on alternative business structures, The Public Interest: Delivering Scottish Legal Services, can be found on the Law Society of Scotland website: http://www.lawscot.org.uk

FOR FURTHER INFORMATION: Please contact Val McEwan or Suzy Powell on 0131 266 8884 or 0131 476 8115. Email: valeriemcewan@lawscot.org.uk

Thursday, April 24, 2008

Law Society of Scotland consultation on standards - 'We never had any before so why start now ?'

To waste some time and justify its continued existence, the Law Society of Scotland has decided to hold a consultation on standards for solicitors in Scotland.

With there not actually being any standards in our sadly maligned legal profession, what on earth can we expect ? Even less standards and more bottom of the barrel leadership ?

Law Society of Scotland media release :

The Law Society of Scotland’s consultation into standards

The Law Society of Scotland’s consultation into standards for solicitors in Scotland is currently being developed and will be live on the website soon.

The consultation is aiming to clarify what those using legal services can expect from their solicitor both in terms of behaviour and service. Issues under consideration include a review of the current Code of Conduct and setting principles for service.

The Society has set up a reference group to help it develop the consultation.

The reference group representatives are from Women’s Aid, the Scottish Legal Services Ombudsman, the Scottish Consumer Council, the Equality and Human Rights Commission, the Scottish Legal Aid Board, the Institute of Chartered Accountants of Scotland, the Citizens Advice Scotland and Children 1st.

Wednesday, April 23, 2008

Scandal of lawyers caught in insurance fraud kickbacks spread to Scotland

It was recently reported in the Times newspaper that several firms of solicitors south of the border are being investigated alongside many claims handling companies for alleged insurance fraud ...

Rumours now circulating in the Scots legal fraternity claim many of our 'top notch' legal firms have been receiving insurance kickbacks for years .. one 'well respected' Edinburgh solicitor who was named to a Scottish reporter, is claimed to have been in tow with several insurance companies for years .. possibly accounting for the 9 cars he owns, together with four houses ...

The Times reports :

Solicitors face inquiry over insurance fraud kickbacks

Frances Gibb, Legal Editor

Ten solicitors’ firms are being investigated with dozens of accident claims-handling companies for alleged insurance fraud.

The investigation, reported in the Solicitors’ Journaltoday, is being undertaken by the Insurance Fraud Bureau.

The alleged frauds involve law firms paying kickbacks to claims-handling companies for work. This is legal if it is open and transparent, but some of the claims turn out to be fraudulent.

Law firms may be unaware that the claims being made are fraudulent but could still be guilty, according to the Insurance Fraud Bureau. Sue Jones, head of unit at the bureau, is urging partners of law firms to keep accurate records of clients and cases referred to them by claims management firms.

“If you’ve paid a referral fee to a claims management company and you end up taking money into your client account from a fraudulent claim, then you could be facilitating that fraud.”

If insurers were saying consistently that they did not believe an accident took place, solicitors should review the claim, she said.

Tuesday, April 22, 2008

Appeals Court may try to limit Lockerbie Bomber's appeal to SCCRC recommendations only

During yesterday's MOJO conference in Glasgow, it apparently slipped out among guests discussing the many problems of Scotland's creaking & corrupt justice system that the Court of Appeal are trying to limit Abdelbaset Ali Mohmed Al Megrahi's appeal to exactly the terms of what the SCCRC referred his case on.

If this does transpire to be the case, it will be a first in Scots Law since the creation of the SCCRC in 1999 and will be a major setback to the Lockerbie appeal case, currently running through the Appeals Court, and noticeably suffering from intense political interference and a seemingly lack of any will on the part of some in the legal system to get to the bottom of things, which for the good of Scots justice, must be aired in public and corrected.

As was further eluded to at yesterday's MOJO conference, the test case for how appeals should proceed was the Campbell and Steele case which accepted that once the SCCRC make the referral it is up to the defence team to then lodge grounds on behalf of any appellant and indeed this is the way it has worked since SCCRC inception in 1999.

The SCCRC Rules of referral can be seen here:

Scottish Criminal Cases Review Commission : Once a case is referred

"If we refer your case to the High Court you will require to instruct a solicitor to assist you. To see a list of solicitors who undertake appeal work please click here

If your appeal is in relation to a summary conviction, after the referral has been received by the High Court, the court will fix a date for a procedural hearing. You will be notified of the date of the hearing by Justiciary Office. The purpose of the hearing is to establish whether the appeal should proceed solely in terms of the grounds raised in the Commission’s statement of reasons or whether you wish to raise any other grounds of appeal. Although the Commission has referred your case to the High Court on the specific grounds contained in its statement of reasons, you are permitted to raise other matters at appeal which have not been referred to by the Commission. If other grounds are to be raised, the High Court may require a note of appeal to be lodged detailing the other grounds. The appeal should thereafter proceed as normal.

If your appeal is in relation to a solemn conviction, your appeal will require to be presented at the High Court by you, or counsel acting on your behalf. Within eight weeks of the date of the referral you will require to lodge with the High Court a note of appeal setting out the grounds upon which you seek to challenge your conviction. Your appeal will be treated by the court as if leave to appeal has already been granted.

Any application for legal aid submitted on your behalf to the Scottish Legal Aid Board (SLAB) for the purposes of your appeal will be granted subject to you satisfying SLAB that you are financially eligible. In other words, SLAB will not scrutinise the merits of your application but will need to be given information about your present financial situation or will require to be satisfied that you received legal aid at your original trial.

the above, taken from the SCCRC website quite clearly states:

Although the Commission has referred your case to the High Court on the specific grounds contained in its statement of reasons, you are permitted to raise other matters at appeal which have not been referred to by the Commission.

It should then proceed as if Leave Has Been Granted:

Your appeal will be treated by the court as if leave to appeal has already been granted

so there we have it ... the appeals process seems to be in a state of being disturbed from the norm, for some reason in the Lockerbie case ... reasons which should be made clear to the rest of us ...

Monday, April 21, 2008

Law Society's price fixing and monopoly on Scottish legal services market must be resolved from outside Scotland

Anyone who isn't aware of the fact that you have to use a member of the Law Society of Scotland to access justice, legal services or the courts in Scotland, has obviously never had the need to use a lawyer.

The problems which have been generated by very singular policies pursued by the legal profession's leadership in Scotland, principally those of outgoing (phew) Law Society Chief Executive Douglas Mill, where monopoly and retention of control over everything from admissions to the profession to qualifications, fees and regulation, have left the Scots legal profession in its worst state since it was formed.

With the apparent reluctance of the Justice Secretary Kenny MacAskill to follow the OFT's recommendations and fully open up the Scots legal services market to all & sundry, some are arguing that the severe problems of Scots competition law should be sent to Europe for fixing ... which may be all very well for some .. but not others as recent revelations show the Law Society itself to be very active in the EU, lobbying against any change of its monopoly control over legal services in Scotland ...

The Scotsman reports :

Has devolution proved to be a winner for Scottish competition law?

By Catriona Munro and Johan Sahl

ANTI-competitive behaviour continues to be a serious problem in Scotland, with consumers and businesses losing out from bid-rigging, price fixing and other market abuse. In recent years, investigations into sectors such as construction, dairy and newspapers have uncovered a disproportionately high number of breaches north of the Border.

Nonetheless, there is a strong rationale for reserving this area of law to Westminster. UK competition law is inextricably – and increasingly – linked to EU law, leaving any devolved government with little or no scope to plough its own furrow.

So, although the OFT opened an office in Edinburgh last year, its main focus is on advocacy and discourse. Investigation and enforcement are still handled by the OFT in London.

But is that body best placed to handle enforcement in all cases? Looking to Europe, there is some doubt whether this is the most effective arrangement. In 2002, Spain gave its regions the option to set up their own competition authorities. Catalonia did so in 2003 and seven others have followed suit. The regional authorities are independent and operate alongside the national Comisión Nacional de la Competencia, with power to take up local cases. One reported benefit of the Spanish system is that the regional authorities are closer to local consumers and have a greater understanding of small businesses. Another is that they have the resources to investigate local cases that the CNC do not prioritise. This has led to a steep increase in the number of local investigations.

A similar Scottish authority – applying UK rules at a local level – might well be better placed to focus more resources on investigating cartels and abuses of dominance in Scotland than the OFT currently is.

But a proposal to establish a Scottish authority would not be without problems. First, its impact would be limited, since it would only have jurisdiction to handle exclusively or at least principally Scot
tish cases.

Second, like the OFT, it would be obliged to follow the principles of EU competition law. Differing domestic competition law principles would only disadvantage Scottish businesses.

Finally, the cost of assembling a sizeable team of experts would, presumably, need to be met by Holyrood. This extra cost must be weighed against anybenefit to consumers in the form of "healthier" markets.

It may be that some of these effects will be achieved by the OFT's efforts to engage with the Scottish government, business and consumers. After all, this "touchy-feely" approach is backed up with a big stick – the "feds" can be flown in from London at any time. If, however, the OFT is to make this set-up work effectively it will need to embed itself in Scotland's institutions.

• Catriona Munro and Johan Sahl are from Maclay Murray & Spens' EU, Competition & Regulatory group

Do long needed reforms risk obstructing justice for most Scots ?

Problems ahoy with increasing legislation from the Scottish Parliament who are seemingly hell bent on 'reforming' Scotland's legal system (many would say not reforming enough) ....

Some within the legal profession allege these reforms will risk justice for the most vulnerable in our society .. however, solicitors could stop that one from happening themselves .. couldn't they ?

The Scotsman reports :

Reforms risk justice for most vulnerable

By Brian Fitzpatrick

"A LEGAL system without its own legislature. Discuss." Before devolution, Scots lawyers easily managed such comparative law teasers.

Since 1999, our domestic Parliament has shown a readiness to make up for lost time with legislation. There has been a tendency to forget that, aside from producing volume, the real promise of a Parliament is measured in greater scrutiny, better value and improved public services. Taking a few steps back and asking what policy end is to be achieved is an exercise that might be recommended to our lawmakers.

One apt item on Holyrood's legal fare bill may be the forthcoming debate on reform of our civil courts. How ministers handle the issues that will emerge will be a test of just how well our legal system is faring. Even if you have missed the consultation deadline, be assured – this is a debate that will run for at least three years. But will these proposals match political realities?

Two of the most likely structural proposals relate to the introduction of an all-Scotland jurisdiction (combining the Supreme Courts and the various Sheriff Courts) and changes to how our courts allocate personal injury cases. Both measures will stir legal and political interest.

"Centralisation", "streamlining", "increased efficiencies", such terms beloved to the lips of Justice Department mandarins will not fall so easily on the ears of MSPs and ministers more likely to hear them echoed as "cuts, job losses and an attack on local services". Throw in the fact that excluding personal injury work from the Court of Session will incur the wrath of Scottish trades unions, and one might even begin to feel some sympathy for whoever is the Justice Secretary when the review reports in 2009 – just in time for the elections at Westminster and Holyrood.

The headaches for Mr McAskill or his successor do not diminish. The unions' concerns might be caricatured as them pursuing a trades union interest, but attacking civic bodies which help their members advance cases against negligent others does not seem a particularly fertile ground for garnering support. McAskill also knows that but for those unions his civil legal aid budget would be under even greater pressure.

Worse still, while reform of the Scottish legal system is now largely a matter for Holyrood, Lord Gill has tucked away in a footnote the policy equivalent of a timebomb with his reminder that the continued existence of the Court of Session as a court of first instance is a matter reserved to the UK Parliament. This nicety has not escaped the attention of various interested parties.

When McAskill remembers that it is not possible to secure by an administrative measure that which requires primary (Westminster) legislation, it might be that the passing pleasure of yet another Holyrood/Westminster spat pales somewhat. One reason might be that it is not hard to guess just which are the sort of sheriff courts most likely to have to face the writing on the wall in any streamlining.

The most substantial test is whether things will improve should the proposals proceed. As far as personal injury cases are concerned, it would be generous to claim that "the jury is out". Research on claims-handling clearly demonstrates the necessity of high-volume specialist litigators if claimants are to get a measure of equality against the insurance industry.

Without a high volume of specialist cases going through the Court of Session that equality will vanish with the prospect of real injustices being worked on some of the most vulnerable citizens. Not exactly the seed bed for reform.

Attempts at restricting Freedom of Information over privacy are unworthy of Scotland as a democracy

The Freedom of Information Act, which has revealed many a scandal in Scotland, even toppled a few politicians on the way, now faces several tests over its very existence, with those who have been maligned by the FOI act, having their interests ... shall we say .. damaged by revelations to the public of things which generally should not be ... are now campaigning to limit the terms and scope of FOI.

Strangely enough even the now less than shiny new SNP Scottish Government have joined in the fight to limit FOI by maintaining legal challenges against a number of FOI requests which generally one would think were most certainly in the public interest ...

So much for an open Scotland then ...

The Scotsman reports :

Freedom of information must balance against an individual's right to privacy

By PAUL MINTO

Scotland's Freedom of Information Act has come a long way since it was introduced in 2005. According to the recent Scottish Information Commissioner's annual report, the Scottish Government and local authorities received over two- thirds of all the 1,574 applications to the commissioner, Kevin Dunion, since the Act came into force.

While public awareness of FOI legislation is high, at 74 per cent, and applications have been consistently high over the last three years, research indicates that certain social groups such as young people, the elderly and the disabled are less informed about FOI . It is vital to ensure all groups know their rights and are able to access information.

So, where does the Act go from here?

In his recent report, Dunion expressed concern that people's rights had been curtailed by the increasing trend of public authorities using private firms and charitable trusts to deliver public services. He has asked the Scottish Government to close this gap by extending the FOI legislation to bring in private contractors working in the public sector.

Dunion has argued that other countries solved this problem by ensuring that public authorities hold relevant information from private companies working on their behalf. In addition, private companies are designated as public authorities if they take over public contracts.

If these proposals, which could cover housing associations, go ahead, the implications to private companies will be interesting.

Considerable care will be required in drawing up contracts between the private and public sectors. Care will need to be taken to guard against potential compensation claims should it be judged that the private contractor has lost competitiveness due to contract information being in the public domain.

A further test for the FOI legislation comes with a House of Lords landmark case on the compatibility of data protection and freedom of information legislation. The outcome of this will have profound implications for all public authorities, businesses and other organisations that hold and process personal information about individuals.

The ruling will determine whether the Scottish Information Commissioner was entitled to order the Common Services Agency to disclose information about the incidence of childhood leukaemia in Dumfries and Galloway. In ruling, their Lordships will give crucial guidance on the interaction between the public's "right to know" under freedom of information legislation, and the legitimate privacy expectations of individuals under data protection laws.

The Lords have acknowledged that if an FOI request is made for personal data, it might be justifiable to ask why the data is required before accepting the request. If this conclusion is reached in the final judgment, expected before the end of August, then it is likely to upset the assumption that all FOI requests are "purpose-blind".

It is clear that there are some interesting challenges ahead for both Scotland's public and private sector in relation to FOI.

• Paul Minto is head of public services at HBJ Gately Wareing. The Scottish Information Commissioner will speak at their seminar "Freedom of Information – Success, failure or is the jury still out?' on 16 April.

Sunday, April 20, 2008

Look out England - poorly regulated Scottish accountants are on the march to ruin your financial affairs

The long standing application from the Institute of Chartered Accountants of Scotland for their members to be able to work in England has recently been passed by the Ministry of Justice in London.

So look out folks in England & Wales - you might just get accountants such as Norman Howitt, a luminary at ICAS who has a great record of ruining wills and probate work ....

You can read more about how Scottish accountants such as Norman Howitt are deadly in their handling of wills & probate work here : Borders Accountant Norman Howitt identified in Cherbi Executry case

We here at Scottish Law Reporters wouldn't encourage the use of Scottish accountants to handle wills & probate work based on that incident .. and many others like it we hear have never been properly investigated by ICAS ...

The Scotsman reports :

Scots accountants win right to compete with lawyers for work south of border

By Nathalie Thomas

SCOTTISH accountants have won the right to undertake probate work in England and Wales in a move that breaks up a service previously monopolised by the legal profession.

The move is viewed as the first step towards 'Tesco law', where consumer groups argue businesses from accountancy firms to supermarkets should be allowed to sell legal advice. Members of the Institute of Chartered Accountants of Scotland (ICAS) have been granted permission to carry out probate work.

The Ministry of Justice in London has approved applications by ICAS and also the Institute of Chartered Accountants in England and Wales (ICAEW) to offer this kind of work to clients south of the border. ICAS will this week apply to the Lord President of the Court of Session in Scotland to offer the same services in Scotland.

The move will allow qualified chartered accountants to compete with lawyers, notaries and barristers for wills and probate work, a domain that has for centuries been dominated by the legal profession alone.

Although ICAS and ICAEW still have to wait for approval from Westminster, they expect the move to create a new income stream for accountants.

Vivienne Muir, executive director of regulation and compliance at ICAS, said it will also improve consumer choice.

She said: "ICAS members gaining these rights is a move which we believe will benefit consumers as it increases choice. In gaining probate rights in England and Wales, we have had to satisfy strict criteria relating to training, expertise and consumer protection. We believe that CAs (accountants trained by ICAS] with their knowledge and experience of taxation and trust affairs are well qualified to deliver similar services in Scotland."

The Scottish Consumer Council is expected to back ICAS's application in Scotland as it is thought it will lead to lower prices for consumers.

ICAS's application falls just weeks before the Law Society of Scotland is due to reveal its hand over multi-disciplinary practices, where lawyers would be able to go into business with accountants, chartered surveyors and other financial services professionals.

Multi-disciplinary practices are likely to resemble one-stop shop businesses where consumers and business clients can access va
rious services under one roof.

The society's president, Richard Henderson, has been asked to submit recommendations to Holyrood about MDPs and other alternative business structures after the Office of Fair Trading argued last summer that the legal profession in Scotland should be opened up to greater competition.

The OFT was triggered into action by a 'super-complaint' from consumer group Which? arguing that the restrictive market in Scotland limits consumer choice and may have led to higher prices.

But the debate has divided the legal sector, with leading Scottish law firms speaking out on both sides.

A spokesman for the Law Society of Scotland said Henderson will publish his policy paper in the next couple of weeks. It will then be debated by members at the society's annual general meeting on May 22 before final recommendations are submitted to the SNP Government

Friday, April 18, 2008

Scots judiciary allegedly biased against women as figures reveal only one in nine are judges

Could it be the surprise of the century that only one in nine judges in Scotland are women ? We think not ...

Read on for more as the Scotsman reports :

Justice in dock: only one in nine judges is a woman

By MICHAEL HOWIE

THE body in charge of selecting judges and sheriffs is to carry out a major investigation aimed at ending the virtual monopoly that white men have on the bench.

The Judicial Appointments Board for Scotland is to examine the "barriers" it believes are preventing women and people from ethnic minorities from progressing into senior positions.

Equality campaigners fear the lack of women and non-white sheriffs and judges is damaging public confidence in the legal system. They argue that the predominance of white men in the judiciary is off-putting to some victims, for example women who are raped.

Sir Neil MacIntosh, the chairman of the board, insists women who apply to become sheriffs or judges have as much chance as men. But he told The Scotsman too few were putting themselves forward for the most senior positions.

"When women do apply, they are successful," he said. "But there is a gap between the number of potential women candidates and the number who actually come forward."

He believed "a range of factors" was probably preventing women and non-white people from applying to become a sheriff or judge.

He said: "Is it the hours? Is it perhaps that female candidates are still working their way into the more senior ranks – the 'trickle-down' effect? Is it because of the nature of the jobs, as the bulk of appointments are all-Scotland? In other words, you've got to be willing and prepared to travel across the whole of Scotland when called upon to do so. Does that mean that women with family responsibilities still are disadvantaged by that?

"We need to find out whether there are barriers preventing them from coming forward. The process should be equally accessible to anyone.

"I suspect there are a whole range of factors. The important thing is that we address them."

Sir Neil, who retires in June after six years as chairman of the board, which was set up in 2002, went on: "Some people suggest it's just a matter of time, but I'm not convinced. That assumes the trickle-down effect is the only factor. I don't believe that. I think it's an absolute duty (to promote greater diversity]."

But Sir Neil rejected far more radical moves to improve diversity. "We don't operate quotas," he insisted.

Nicky Kandirikiria, executive director of the equality campaign group Engender, is among those who believe the composition of the judiciary is damaging the justice system.

"You have to consider whether having such a male-dominated judiciary is contributing to the fact we have one of the lowest conviction rates for rape in Western Europe," she said. "We know many women who suffer violence don't go to court because it's so male-dominated. More women judges would help."

Under the Judiciary and Courts (Scotland) Bill, the appointments board will have to give people posts "solely on merit". However, there are some in the legal profession who believe a candidate's suitability for the job should be based partly on whether they will help create a more diverse judiciary.

But one senior figure said such action could result in the wrong judges being appointed.

Lord McCluskey, a retired judge, said: "

The nature of justice does not vary in its character depending on whether the person administering it is male, female, black or white.

"If I go into hospital for brain surgery, I want the very best person for the job. I don't want to be told 'it's your turn to be operated on by someone brought in to create diversity for Bangladeshi immigrants'."

Figures show the judiciary's lack of balance in terms of gender and ethnicity. Only four of the 35 serving judges – or 11 per cent – are women. None are from ethnic minorities. Of the 140 full-time sheriffs, 26 – 19 per cent – are female, and only one, Rajni Swanney, who was appointed nine years ago, is from an ethnic minority. She moved to Scotland from India at the age of two and was brought up in Dundee.

While 36 per cent of the legal profession are female, less than a quarter of applications to be sheriffs or judges are from women.

Osama Saeed, the chairman of the Scottish-Islamic Foundation, said:

" The dispensing of justice requires juries to be of your peers, and the judiciary similarly has to be representative of society.

It has an impact in the trust in the system."

The appointments board has set up a working party to examine the composition of Scotland's legal profession. Led by Professor Alan Paterson, from Strathclyde University, it will include representatives from the Law Society of Scotland and the Faculty of Advocates.

The working party plans to survey about 12,000 solicitors, advocates and sheriffs, seeking their attitudes towards becoming a judge or sheriff. Women, people from ethnic minorities and other minority groups will be "tracked" to find out if, and how, their careers are progressing. Steps will then be taken to overcome any hurdles.

Ros Micklem, of the Equality and Human Rights Commission, said the inquiry should go beyond gender and ethnicity.

"We would expect them to ensure they look at all the potential barriers to participation. How many of our judges or sheriffs are disabled? Why is there such a small percentage of women or people from ethnic minorities? Does the environment in which they work encourage them to be honest about sexual orientation, or faith and belief?"

Bill Aitken, MSP, the Scottish Tories' justice spokesman, said judicial appointments should be made on merit, but he would welcome more women and people from ethnic minorities.

'People should have the opportunity to apply if they want and not feel there is little point'

I WOULD love the opportunity to apply to become a judge. As a career move, it would be a fantastic prospect.

But, as I see it, there are too many deterrents for me, both as a woman and someone from an ethnic minority group.

Applying to become a "floating" sheriff – who is required to work across Scotland – is a "no-no". I have two very small children and a husband who has a very successful and high-profile career. The responsibility to look after the children would fall to me at the end of the day.

This project by the appointments board is a good start, but it will take some years to work through, because of the old mentality of how things are done. There will have to be some genuine incentives in the appointments process and job descriptions to encourage not just people like me, but also those from other minority groups to feel confident about applying to become a judge.

People should be given the opportunity to apply if they want and not feel there is little point because of who they are. If I was white I'd think that too, that just being a mum would mean I wouldn't fit in. But being non-white makes me even further away from what I would imagine the panel are looking for.

However, times are changing – and the quicker the better. The old boy network is still there, but I think it's on the way out.

It might be thought that because I am non-white I won't be able to deal with the type of people coming before me in the dock. But I think the judiciary will appear more in touch with the public if the traditional white, male profile is seen in equal numbers with members of minority groups. It's important that the judiciary visibly reflects the society that it serves. I don't actually think it's the case that judges are out of touch. But the perception is that they don't understand the everyday, "streetwise" life. This is bound to have an impact on confidence in the system.

• Farah Adams is a Blairgowrie-based solicitor who is convener of the Law Society of Scotland's equality and diversity committee.

Tuesday, April 15, 2008

Lawyers could do much more to prevent miscarriage of justice

Yes we certainly could.

Now that miscarriage of justice' is viewed as more of the order of the day now in Scotland than not, the legal profession itself, which has been well known to cause plenty of injustice itself, should now take up the sword and help prevent, even, clean up miscarriages of justice and injustice.

It would surely be for the benefit of all concerned to do so, and we could all have peaceful lives again ...

The Scotsman reports :

It would be criminal to let budgets cause miscarriage of justice

By Jennifer Veitch

LAWYERS are often viewed as a conservative bunch, and while it is a bit of a lazy assumption, there are reasons that justify a collectively cautious nature.

Legal work involves treading carefully – teasing out the facts, analysing the law, following procedures, and the general avoidance of jumping to conclusions that are not backed up by the evidence.

And so, it takes quite a lot to provoke lawyers into mounting any sort of public protest.

In recent years however, solicitors practising in two key areas – criminal and family law – have become increasingly vocal with their concerns about the impact of low rates of legal aid on access to justice.

In 2006 the criminal solicitors became so frustrated by the lack of progress on the issue that they called on the Law Society to cease to co-operate with the Executive and Scottish Legal Aid Board on criminal matters.

Although the problem has not gone away, last year's change of government has taken some of the heat out of the situation and Kenny MacAskill, the Justice Secretary, has had breathing space to try to sort it out.

So what has he come up with so far? A few days ago, the minister announced changes to legal aid for summary justice, including the introduction of a single fee level for cases disposed of before trial, a 10 per cent increase in criminal advice and assistance rates, and enhanced payments for duty solicitor work.

Some positive noises have emanated from the Society's Legal Aid Solicitors committee. Convener Oliver Adair said he was pleased that the Scottish Government had listened to many of their recommendations.

Significantly however, he added that the "overall cut in the summary Legal Aid budget remains", and he described the failure to address the issue of fixed fees, which have not been increased since 1999, as a "missed opportunity".

It may be overly simplistic to say that this entire problem boils down to money, but in this case it may be true.

Under-resourcing of criminal legal aid has already had a significant impact for the legal services marketplace. While many law students start their studies with a strong interest in criminal law, there are now few firms with the resources to train them.

With fewer lawyers going into criminal work, even the significant expansion in the Public Defence Solicitors' Office, set in motion by the previous administration – there are now PDSO offices in Edinburgh, Glasgow, Inverness, Ayr, Dundee, Falkirk and Kirkwall – may not be enough to plug gaps in provision in the longer term.

Since the PDSO was set up, there has been much debate as to whether public defenders offer as good or as cost-effective a service as solicitors in private practice.

Yet the issue at stake is not whether independent solicitors or the PDSO presents a better option – both are being paid by the public purse, after all, and all solicitors are subject to the same practice rules – but whether the entire criminal justice system is being adequately resourced.

In these times of tight financial settlement from Westminster, it will be even harder for the Justice Secretary to argue the case for more money to pay for the defence of people whom the public often brand criminals before they are convicted of any offence.

But how refreshing would it be if politicians stood up for this fundamental right. Paying for those accused of crimes to have a robust defence and a fair hearing is not only the humane option, but a necessary one in a democratic society.

Ultimately the question is, how much are we as a society willing to pay to avoid miscarriages of justice?

Tuesday, April 01, 2008

Law Society of Scotland and Fiscal accused of deliberate exclusion of witness evidence in Court of Session appeal

More From A Diary of Injustice in Scotland which reports further on the amazing events of the Michael G Robson appeal in the Court of Session against being struck off by the SSDT.
Released documents show serious problems with the prosecuting Fiscal, Paul Reid of Fleming & Reid, and an apparent deliberate attempt by the Law Society of Scotland to exclude evidence and witness testimony in the actual court case.
Taking a long time, but about three years later, I finally have the Legal Services Ombudsman's report into the Law Society of Scotland's handling of my complaint against Michael Robson - the now infamous 'tennis playing lawyer', which you can read more about here :Lawyer who took on Law Society for clients ended up as dishonest as those he challenged

Sunday Mail - Michael Robson, an untrustworthy solicitor who did nothing for his clients

Shamed Lawyer in Tennis Racket Sunday Mail 21 October 2007

The report basically shows the Law Society of Scotland handled my complaint against former lawyer Michael Robson, with the utmost prejudice against me, and that the Council of the Law Society of Scotland deliberately excluded the details of Michael Robsons conduct in the medical negligence case relating to my mum, just to deny me a fair hearing, deny me the chance to give an input into the case, and deny me any justice - just as they do with everyone else.

Legal Services Ombudsman's report on the Law Society of Scotland & Court of Session case involving Michael Robson

LSO Report on Michael Robson Page 1LSO Report on Michael Robson Page 2

LSO Report on Michael Robson Page 3LSO Report on Michael Robson Page 4

Perhaps more importantly, the Legal Services Ombudsman's report shows that the Law Society of Scotland and even Law Society Fiscal in the case, Mr David Reid of Messrs Flemming & Reid, failed to the point of deliberately seeking to deny me the chance to make a formal affidavit that I was entitled to input into the Court of Session hearings.

From the LSO report into Michael Robson

"In his response of 17 December, the Fiscal expressed his surprise. He said that he had understood that you were „very interested in the prosecution’. He suggested that enquiries should be made as to your whereabouts when you were required as a witness. However, I cannot see that any such enquiries were made. On 21 March 2005, the Law Society provided the Fiscal with your e-mail address. I can only assume that it was at that point they realised that they had a contact e-mail address for you on another file.

Here follow a couple of sample emails from the Law Society Fiscal Paul Reid to myself, showing firstly, his intention to take statements from me, then silence, after no doubt the Law Society decided I should again be denied access to justice or given a chance to speak.

Law Society Fiscal Paul Reid writes to contact me for a statement - on a hearing which was to take place the very next day early in the morning ....

From: "Fleming & Reid" <flemingreid@btconnect.com>
To: <petercherbi>
Subject: Council of the Law Society of Scotland - Michael G Robson
Date: Tue, 22 Mar 2005 12:24:16

FLEMING & REID, SOLICITORS, 180 HOPE STREET, GLASGOW, G2 2UE

TELEPHONE: 0141 331 1144

Our ref: PR/GP

Dear Mr Cherbi,

Council of the Law Society of Scotland

Michael G Robson

I write further to my recent correspondence in connection with the above to which I have not heard from you in response.

In the course of discussions with representatives from the Law Society I was advised that you were now communicating with them by way of e-mail. I am therefore taking the liberty of presenting this message to you by way of e-mail.

A hearing in connection with the prosecution of Michael G Robson is to take place tomorrow within the Scotsman Hotel, 20 Northbridge, Edinburgh, before the Discipline Tribunal at 10am. I had written to you previously asking that you contact me in order that I may obtain from you a statement which would then be encapsulated within the form of an Affidavit of your evidence. I have not heard from you in response. I would be grateful if you would telephone me upon receipt of this e-mail to indicate whether or not it is your intention to attend tomorrow to give evidence on behalf of the Complaint.

I look forward to hearing from you in early course.

Yours sincerely

P A Reid, LLB (Hons) Dip.LP.NP.

SOLICITOR ADVOCATE

My reply :

From: "PC" <petercherbi>
To: "Fleming & Reid" <flemingreid@btconnect.com>
Subject: Re: Council of the Law Society of Scotland - Michael G Robson
Date: Tue, 22 Mar 2005 20:50:07

Dear Mr Reid,
Thanks for your email.
I'm sorry it seems that the Law Society haven't kept you informed of my
whereabouts or my health, but in any case, I am not currently in the Uk
and wont be able to return until sometime before June.
I certainly could not attend tomorrows hearing
However, I would like to attend the hearing, or give evidence, I cannot advance you
a statement by tomorrow - 10am
I would suggest, given the importance of my testimony, and the fact that
you were not made aware that I was not at my address to which you were
writing (which was actually 47 Bongate), you try to obtain a postponement
or adjournment of the hearing on these grounds, as I would very much like
to input into this hearing, given Mr Robson's conduct as per his
representation of my affairs.

Fiscal Paul Reid replies :

Reply-To: "Fleming & Reid" <flemingreid@btconnect.com>
From: "Fleming & Reid" <flemingreid@btconnect.com>
To: <petercherbi>
Subject: Council of the Law Societry of Scotland - Michael Robson
Date: Wed, 27 Apr 2005 13:03:2
Dear Mr Cherbi,

Council of the Law Society of Scotland

Michael G Robson

I write further to your e-mail of 12th April in connection with the above.

I have yet to be made aware as to whether Mr Robson intends to appeal the judgement. A period of 21 days following release of the written Findings is allowed for either party to mark an appeal.

I suspect the indication that an appeal will be forthcoming is based upon previous history insofar as Mr Robson is concerned.

From my own part I would consider that any appeal at his instance is bound to fail. However if an appeal is so marked then it would be my intention to counter-appeal the decision of the Tribunal in relation to your evidence.

When that is determined, at that stage it would be my intention to meet with you, if possible, and obtain from you a statement in relation to your involvement with Mr Robson and the manner in which you were let down. I trust this will not cause you a difficulty. If there is any further information which you require from me, please do not hesitate to contact me.

Yours sincerely

P A Reid, LLB (Hons) Dip.LP.NP.

SOLICITOR ADVOCATE

A further chaser from me, a year later, asking about my statement, after silence from the Fiscal ...

From: <petercherbi>
To: "Fleming & Reid" <flemingreid@btconnect.com>
Subject: Re: Michael Robson
Date: Thu, 6 Apr 2006 18:21:56

Mr Reid
I am informed that the prosecution of Michael Robson is to be in May, but I have not heard from you as to the matter of whether I am giving a statement or not.
It seems I have also been contacted by elements of a lobby group who are volunteering to be in touch with Mr Robson, to ensure that all his rights to cross examine witnesses or cases in the prosecution, are adhered to.
It seems therefore if I am not going to testify for you, I will be testifying for someone else, which is very odd to me, because I am the complainer of course

Clearly I was still waiting on giving a statement a year after .. but the Law Society were determined to see I had no chance in having access to the court on this one ...

A catalogue of obvious delay, denial of access to justice and prejudice seems to be the course of the day in the Law Society's determination to prevent me from speaking in court against their lawyer Michael Robson.

Even worse revelations in the Legal Services Ombudsman's report show the Law Society Fiscal made an attempt to delete references to my complaint so they could be heard at a later date - supposedly, and that was unsurprisingly denied, simply because no one in the court, even Mr Robson, wanted me to be able to speak about how he treated the case of my mum's death at the Borders General Hospital.

From the Legal Services Ombudsman's report :

"On 20 February 2004, the Law Society lodged a complaint of professional misconduct with the Scottish Solicitors Discipline Tribunal (the Tribunal). That complaint included details of your allegations against Mr Robson. A hearing took place before the Tribunal on 23 March 2005. You were unable to give evidence as you were only made aware of the hearing the day before.

The Fiscal made an application to delete reference to your complaints which would allow them to be held over to a later date. That application was denied. No finding of professional misconduct was made in relation to your complaint. However, Mr Robson was found guilty of professional misconduct in relation to another matter before the Tribunal."

Quite convenient for both the Scottish Solicitors Discipline Tribunal and the Court of Session that I wasn't allowed to make any affidavit or statement about how Michael Robson had treated me as a client - and with my complaint being one of the principle complaints against Mr Robson which the Law Society had investigated, that is an incredible denial of access to justice, which the court itself became part of. Mr Robson was happy too of course, as he didn't have to answer for why he lied the whole time he said he was handling the medical negligence case involving the death of my mum.

The conclusion of the Legal Services Ombudsman's report finds the Law Society guilty of wrongdoing, so to speak, and offers a paltry 100 pounds for their actions. Quite disgusting that in our society, an ombudsman has such limited power, but this is just another good example of how crooked lawyers get away with it, time and again, with everyone, not just myself.

Legal Services Ombudsman's conclusion :

"I have considered the handling of your case by the Law Society and in my opinion they failed to take reasonable steps to keep in contact with you between February 2004 and March 2005. I am also of the view that they failed to give you adequate notice of the hearing of 23 March 2005 and you were therefore unable to give evidence. I recommend that the Law Society compensate you in the sum of £100 for the distress and inconvenience caused to you as a result"

Ultimately, the Law Society gets off the hook again, and if anything this case simply shows the present structures of prosecuting crooked lawyers and recovering damages in Scotland is a complete and utter failure.

So can I find a lawyer to represent me in a case to sue the Law Society and Mr Robson for what happened ? I doubt it, as all lawyers are members of the Law Society of Scotland and wont want to do anything to upset the powers that be.

Offers of legal representation to clear up this mess will be gratefully received ...

This is all a good example of how our glorious Scottish legal system is geared to self protecting lawyers and the legal profession against any member of the public who may have a valid claim against a solicitor. That in itself is a good enough argument to ensure that any regulation involving the legal profession must be fully independent, transparent and have no connection whatsoever with the present systems the legal profession has put in place over the years to constantly save itself from any harm.

Reform these injustices now, and bring fully independent regulation for the legal services market, which must be fully opened up to break the Law Society's monopoly on access to justice - as they have so well demonstrated against myself and so many others.

Lord McCluskey on why the Judiciary & Courts Bill is not worth the paper its printed on

More From A Diary of Injustice in Scotland which reports on the testimony of current & former senior members of Scotland's judiciary on the planned reforms of the Judiciary & Courts Bill ...

Judiciary & Courts Bill 'not worth the paper it's written on' as Scottish Parliament hears judges ask for 'a measure of trust'

The latest attempt at reforming Scotland's judiciary has been described as 'not worth the paper it's written on', by Lord McCluskey, formerly one of Scotland's senior judges, now a Labour peer in the House of Lords. The former Court of Session judge made the assertions during his testimony last week to the Scottish Parliament.

Lord McCluskey on judicial independence and proposed judicial reforms

As you know, I have criticised Lord McCluskey for his criticisms of proposed reforms to the legal profession and judicial system, but in this case, he is probably correct, and the Judiciary & Courts Bill itself, which is currently being heard by the Scottish Parliament's Justice Committee should be at the very least, cleaned up quite a bit, and quite a dose of accountability & transparency added to it.

For instance, perhaps a more open, transparent appointments system than simply leaving it to the Lord President to appoint judges, may bring a little more in terms of public confidence to Scotland's creaky self serving legal system, which doesn't seem to have any will to change with the times, and certainly not adhere to the public interest, rather, adhere to it's own ..

Lord Hamilton on judicial appointments - apply a measure of trust ...

The office of Lord President seems to enjoy far too many powers, lacking accountability to anyone as Lord Hamilton's comments seem to indicate, but that really sums up the whole of Scotland's legal system - lacking accountability to anyone but itself, which is why the rest of us are almost enslaved to it, even being denied access to justice when it suits the legal establishment to keep people out of the courts or even decide an individual be denied access to legal representation.

The Lord President, Lord Hamilton is involved in many appointments to the legal system, not just those of appointing members of the judiciary, and only recently his role, along with Justice Secretary Kenny MacAskill in refusing all applications made by non members of the Law Society of Scotland to gain rights of audience & representation under Sections 25-29 of the Law Reform (Misc Provisions) (Scotland) Act 1990 brought into question the motives of the current legal establishment for keeping the legal services market closed, as a business monopoly for its own.

Such is the determination of the current legal big wigs to protect their own business markets and money making model, a leaked letter from the Justice Secretary to the Cabinet Secretary for Finance, John Swinney, sought to mislead Mr Swinney on the wellbeing and status of applications made under Sections 25-29, all of which have so far been struck down by both the Lord President and Mr MacAskill, ensuring that no one practices law in Scotland unless they tow the Law Society line and obey those currently in charge. Open legal markets we do not have yet then ...

Justice Secretary Kenny MacAskill misleads Cabinet Colleague John Swinney on access to justice appointments ...

Justice Secretary Kenny MacAskill to Cabinet Secretary for Business John Swinney 26 July 2007

Revisiting Lord McCluskey's comments that the Judiciary & Courts Bill is not worth the paper it's printed on, this does bring back memories of former Scottish Legal Services Ombudsman Linda Costello Baker's comments against the Legal Profession & Legal Aid (Scotland) Act 2007, which she called "a mess", and of course as we now know, she was correct in her claims - the Scottish Legal Complaints Commission which has sprang from the LPLA Act, has been happily and easily co-opted by the Law Society of Scotland, and Ministerial appointments to the Commission itself have seen a bunch of lawyers and ex Law Society Committee members appointed to it, giving the air that it will be injustice as usual for anyone who has problems with a solicitor in Scotland.

You can read more about what former Legal Services Ombudsman Linda Costello Baker said on the half hearted attempt at reforming Scotland's legal profession via the LPLA Bill here : Last words from former Scottish Legal Services Ombudsman condemn the Scottish legal profession

My latest article on the demise of the LPLA Act and the Scottish Legal Complaints Commission before it has even begun its work can be viewed here : Funding argument over Scottish Legal Complaints Commission conceals lawyers interference in 'independent' complaints body

Do we call that reform ? I don't think so .... and no doubt the Judiciary & Courts Bill, if it does make it through the Justice Committee, may well go the same way as the LPLA Bill when it was at the Justice 2 Committee in 2006 ... voted through and passed into law .. then turned on its head to serve those it sought to reform, as any attempt at reforming Scotland's legal system seems to end up in the bucket.

Lord Hamilton on dealing with complaints against the judiciary ...

Maybe we should therefore listen to Lord McCluskey this time, and make sure that if the Judiciary & Courts Bill does go through, it serves a common purpose of transparency & accountability, not simply serving the judiciary itself..

I did notice one thing though ... a small detail I suppose, given the lack of standards within the Scottish Parliament itself ... anyway, Bill Aitken MSP is still the Convener of the Justice Committee and hearing this Judiciary & Courts Bill, but of course he was a JP himself, admittedly a JP isn't that high on the judicial ladder, however, as Annabel Goldie MSP as a solicitor herself and thus a member of the Law Society of Scotland, had to resign from the Justice 2 Committee in 2006 when it heard the LPLA Bill, I wonder what shifting standards policy the Scottish Tories are applying to themselves these days ? Obviously the conflict of interest one must be out of fashion now ...

You can read more about Annabel Goldie's resignation in 2006 here : Annabel Goldie does the right thing and resigns from Justice 2 Committee Convenership but it seems that having a JP in charge of hearings on judicial reform is, amazingly, not a conflict of interest ... those tories must be up to something then .. trying to make the bill fail perhaps ?

Here follows some coverage of the Parliamentary hearings from both the Herald and Scotsman.

Plan for Bill on judiciary ‘not worth paper it’s written on’

ROBBIE DINWOODIE, Chief Scottish Political Correspondent

The plan to enshrine in statute the independence of the judiciary, praised last week by Scotland's most senior judge, was described by a former solicitor-general yesterday as "not worth the paper it's written on".

Lord Hamilton, the Lord President told the Holyrood Justice Committee last week that the proposal in the Judiciary and Courts (Scotland) Bill "sends out the right message" against a day in the future when "conflicts could arise between the judiciary and the executive".

But yesterday retired judge and former law officer Lord McCluskey told the same committee: "The evidence you heard last week was, with respect, naive. The simple answer is it could never be more than symbolic, because if an unpleasant government came to power, then do you imagine it would not behave like the governments in Zimbabwe or Pakistan?

"If a party comes to power which does not respect democratic values then this is not worth the paper it is written on. Just as this Parliament could pass it a week on Monday, it could repeal it a week on Tuesday. This is actually worth nothing at all."

Lord McCluskey added: "Most countries in the world have a written constitution in which the independence of the judiciary is embedded in the constitution. Judicial independence lies in the hearts of men, not in constitutions and statutes of this kind, and I would rather it stayed there."

Calling the proposal "just a kind of gesture politics", he said: "The English needed it and so we slavishly copied the English. We have never had a statutory declaration in Scotland. We don't need to follow slavishly and plagiarise English legislation."

The bill would give the Lord President formal recognition as the head of the Scottish judiciary, making him responsible for matters such as the training, welfare and conduct of the judiciary. There would also be new procedures for appointing and disciplining judges and for dealing with public complaints.

The legislation also sets out proposals for modernising the machinery for sacking judges and sheriffs on the grounds of unfitness for office. They would be investigated by a tribunal chaired by a judge and containing a lay element.

Lord McCluskey said: "In my time there have been judges on the High Court bench who drank too much, who didn't do their homework, who didn't turn up. They were dealt with by the Lord President behind the scenes, and dealt with successfully, and that's the way it has to work."

On attracting a wider cross-section of society to the Bench, Lord McCluskey said: "I can see merit in the government, whether through the (judicial appointments) board or otherwise, taking steps to enable more people to acquire the skills that are needed to be a judge.

"But if I'm going to be operated on by a brain surgeon, I want the brain surgeon to be the best brain surgeon. I don't want him operating because he's black, Jewish, Catholic.

"It's the same with judges. It's the same kind of expertise which is required. I don't think affirmative action has any place in the selection of brain surgeons or High Court judges."

and now for the Scotsman's version, with a piece by Lord McCluskey himself first :

Why an 'English' bill won't fit Scottish justice system

By LORD McCLUSKEY

LORD McCLUSKEY shares his concerns about the judicial reform bill, which he believes is needlessly copying measures introduced south of the Border.

THE Scottish Parliament is about to devote much time and effort considering a Bill that is both unnecessary and misconceived. With the title, The Judiciary and Courts (Scotland) Bill, it is unlikely to generate mass demonstrations around Holyrood.

Bewigged lawyers will not mount barricades proclaiming that "The End is Nigh". MSPs will probably approach the Bill in the belief that there must be some point to it: after all, it has been adopted by an SNP-led administration, having originally been proposed, in February 2006, in a consultation paper endorsed by Cathy Jamieson and Lord Advocate Boyd, as part of "our programme for reforming Scotland's justice system". The word "our" was and remains a serious misdescription: let me explain where the ideas in this Bill really came from.

On 12 June 2003, there occurred one of the most astonishing events in English constitutional history: yes, I do mean "English".

Downing Street issued a press notice announcing the abolition of the office of Lord Chancellor. When, within hours, it was realised that could not be done by Prime Ministerial diktat – because the office of Lord Chancellor had existed for eight centuries, the office holder was the head of the English judiciary with responsibilities under 374 Acts of Parliament, and only he could appoint judges in England and Wales – a second notice hastily appeared saying that it was "intended" to abolish the office. It was too late to save the then Lord Chancellor, Lord Irvine of Lairg: he retired to the backbenches in ominous silence. Lord Falconer of Thoroton took his place on the Woolsack and in Cabinet, with a brand new title, "Secretary of State for Constitutional Affairs".

What had happened? What did it mean for Scotland? What had happened was that David Blunkett, the home secretary, proposed to insert into the new Asylum and Immigration Bill an "ouster" clause, preventing the courts hearing legal challenges to the decisions of tribunals in asylum or immigration applications. The Lord Chancellor, rightly, regarded that as a totally unacceptable departure from the rule of law. Both remained adamant; someone had to lose. It was the Lord Chancellor who lost. But it would have looked bad to announce that the Lord Chancellor had been defenestrated for defending the rule of law, so it was declared that the job itself had been abolished. As Lord Hoffmann said: "His removal had to be dressed in the robes of high constitutional principle."

What did it all mean for Scotland? Not much. For in Scotland the Lord Chancellor had no significant functions. We had our own head of the Scottish judiciary, the Lord President. Judges here were appointed by the First Minister, advised by a Judicial Appointments Board. For Scots, the Lord Chancellor was as relevant as the Captain of the Yeomen of the Guard.

In England, by contrast, eight centuries of tradition and legal structures had to be demolished and replaced in a hurry. So the new secretary of state set about creating a fresh constitutional structure for the English legal system. He entered private negotiations with the Lord Chief Justice of England and Wales. There was no place in these discussions for the Lord President, the First Minister, the Lord Advocate, the Advocate General, or Scottish Law Lords – not altogether surprisingly, because Scotland's legal system was not affected by the loss of the Lord Chancellor. The negotiations produced a "Concordat", providing new ways to carry out the Lord Chancellor's English functions. The new scheme was enacted in the Constitutional Reform Act, 2005.

The Lord Chief Justice was given a new title, "Head of the Judiciary of England and Wales". For appointing judges, England copied the Scottish system, creating a Judicial Appointments Commission. And, most interestingly, because the English regarded the Lord Chancellor as the guardian, within government, of the independence of the judiciary, it was decided that an entirely new guarantee of that independence was needed; so the new Act declared that government ministers had to respect the independence of the judiciary.

Of course, Scotland had no need of such an enactment, because the Lord Chancellor had no comparable role in relation to the independence of Scottish judges. Nor was any such role necessary, because Scottish public servants, both in government and judiciary, knew in their bones that ministers, like everyone else, had to respect, and invariably did respect, the independence of the judiciary. That fundamental tradition of respect had endured without challenge in Scotland for centuries without the need for a Lord Chancellor or a statutory declaration.

So what does the new Bill do? It slavishly copies the English Constitutional Reform Act, 2005. It creates a new title, "Head of the Scottish Judiciary" and confers it on the Lord President, along with numerous administrative functions that he has never had, or needed, and which will make unacceptable inroads on the time and energy he has for carrying out his real function, which is to safeguard and develop the unique character of Scots Law.

Next, it provides a "Guarantee of continued judicial independence". The word "continued" acknowledges that judicial independence already exists. And whose duty is it to provide that "guarantee"? Answer: the First Minister, other ministers including the Lord Advocate, and everyone responsible for the administration of justice.

Surely these public servants, especially the Lord Advocate, would be the first to declare that they already have such a duty at common law and that to neglect it by "seeking to influence particular judicial decisions" would be to pervert the course of justice.

As the "guarantee" imposes the duty only on those named, what about others, spouses, uncles and partners? What about Donald Trump? The simple point is that the duty created in the Bill already exists.

The Bill neither guarantees nor extends it. If anything, it limits it. It does not even create an offence of "influencing judicial decisions".

The Bill abounds in similar nonsenses, especially in relation to the appointment of judges. Let us hope that MSPs recognise its uniquely English features and have the courage to reject them.

Biggest wigs lining up to give evidence

By Jennifer Veitch

A PROCESSION of Scotland's biggest wigs lined up to give evidence at the Scottish Parliament's justice committee last week, convened by Bill Hamilton, including Lord Hamilton, the Lord President and Lord Justice-General, and Lord Osborne, one of our longest-serving judges.

Compared to a day in court, there was not much pomp or ceremony about the proceedings, with the judges looking almost ordinary in their suits and raincoats. But the fact that they were there at all, publicly discussing their role and the implications of the Judiciary and Courts (Scotland) Bill, was extraordinary enough.

There has been much criticism of attempts by the former Scottish Executive and the current Scottish Government to bring forward legislation to reform the judiciary.

There are others who are better placed – including Lord McCluskey on these pages today, to analyse the detail of the proposals in depth.

But, having had the opportunity to listen to sat Tuesday's oral evidence, it became obvious to me that there is much about the way the current system operates that could be improved.

The headline-grabbing issue was of course Lord Osborne's criticism of the procedures used by the Judicial Appointments Board in hiring judges, namely the absence of any formal checks as to the performance or competence of candidates.

For example, he said no-one would bother to contact a sheriff principal to ask whether a sheriff was the subject of any disciplinary proceedings or outstanding complaints.

Lord Osborne also poured scorn on a system that relied too heavily on performance at interview, which he regarded as an unreliable indicator of suitability for the bench.

While interviews are of course a necessary evil for most people seeking less elevated positions, clearly the Judicial Appointments Board should be able to provide much greater reassurance that such jobs are being filled on merit, and only after a robust assessment of a candidate's suitability.

The problem is that it also emerged that judges apparently want to have it both ways. Lord Hamilton said that he still needs to be able to give a "tap on the shoulder" to fill temporary judge positions.

Given the huge workload and degree of responsibility that judges must bear, is this fair on either the candidates stepping up to the plate or the public whose fates may rest on their decisions?

The absence of a formal complaints procedure for those who wish to raise concerns about the conduct of a judge – as opposed to using the appeals process to challenge a judicial decision – was also a concern.

Lord Hamilton was not able to give a figure as to the number of complaints that he receives about judges' conduct. No doubt when he produces the figures, as requested by the justice committee, it will emerge that he does not receive that many at all.

But, however small the number, there should be a far greater degree of openness and transparency about the rules and procedures involved. To leave everything to the discretion of the head of the judiciary, no matter how upstanding a fellow, seems too heavily weighted against the complainer.

The argument that introducing a formal complaints procedure would lead to more complaints simply does not hold water.

Surely there could be discretion to weed out vexatious or frivolous complaints? And, more importantly, there could also be an opportunity for the judiciary to learn from the few complaints that might actually be justified.

The Judiciary and Courts (Scotland) Bill may well be flawed, and the justice committee may well want to suggest amendments before the bill proceeds to the next stage in the parliament.

But the judges have already demonstrated that the issue at stake here is not whether change is necessary or desirable, but whether the Bill as drafted offers the best way of going about it.