5 Years on from the Justice 1 Committee`s 2001 "Regulation of the Legal Profession Inquiry", Scotland`s Judiciary are at it again, resisting any reforms to their practices ...
This article comes from "A Diary of Injustice in Scotland - By Peter Cherbi" , at : http://petercherbi.blogspot.com , where you can also see copies of previous attempts by the Judiciary to thwart Parliamenary scrutiny of their practices ....
If your looking for developments on the legal aid dispute between lawyers & the Executive - my sources tell me the Law Society mob want the reforms of independent regulation and fines either delayed or killed off completey ... along with legal aid payments restored a.s.a.p. - didn`t take a genius to work out that one then .. but I can`t reveal what has actually been leaked to me just now let`s save that for another day ...
On to today`s article then ...
Scotland`s sheriffs have stepped into the row over Judicial Reform - for at least the second time, raising accusations that the planned reforms by the Scottish Executive to Scotland`s centuries old Judicial System, would compromise the independence of the judiciary. Sheriffs have even dragged in comparisons to Nazi Germany to the proposed reforms ... however, that is somewhat overstating the issue from the Sheriffs part I think.
Whats all the fuss then ? well - the Scottish Executive wants to bring a bit more oversight into the dark unaccountable world of Sheriffs in Scotland ... while also giving huge responsibilities to the Lord President, who would control all of the Courts in Scotland, but the Sheriffs are resisting this of course, as they certainly don`t want what they term as outside interference in their little unregulated empire.
However, this is not the first time that Scotland`s Sheriffs have reacted with arm twisting and veiled threats towards proposed reforms or inquiries into their conduct. They did the same 5 years ago to the Scottish Parliament ... read on to find out more ...
In 2001, when the Scottish Parliament`s Justice 1 Committee was holding the "Regulation of the Legal Profession Inquiry", the Committee had planned to investigate and examine the role of Scotland`s Sheriffs as part of it`s 2001 inquiry into the legal profession - which sadly fell to be fiddled beyond belief after mass interventions and lobbying from the legal profession to prevent victims cases of injustice by the legal profession being heard by the Committee in public.
The Sheriff`s reaction to this Parliamentary investigation ? - simply put - including Sheriffs in your "Regulation of the Legal Profession inquiry" is incompatible with ECHR and we will defend ourselves (in other words, interdict the Justice 1 Committee from considering the issue and role of Sheriffs in Scotland).
A source from the Parliament at the time told me that the Justice 1 Committee had been threatened by the Sheriffs Association, who were refusing point blank to co-operate with any Parliamentary inquiry or even submit evidence on the grounds that this inquiry would be a stage in the compromising of their independence .. and that the said letter of threat and protest was to be discussed in private before publication .. which it was ... and surprise .... the Sheriffs were excluded from the Justice Committee inquiry - which at it`s conclusion, amounted to nothing more than a whitewash .. which the Law Society of Scotland actually used in it`s public relations defence of Scotland`s crooked legal profession.
Care to read the letter from the Sheriffs`Association to the Justice 1 Committee ? .. well, you can read it on the Scottish Parliament`s own website in pdf format, at : http://www.scottish.parliament.uk/business/committees/historic/justice1/inquiries-02/j1-lps-pdfs/lps-094.pdf
What with the Justice 2 Committee tackling the issue of the Legal Profession & Legal Aid (Scotland) Bill, which aims to bring independent regulation to Scotland`s great band of crooked lawyers and the present failed system of self regulation of lawyers operated by the Law Society of Scotland, the Sheriffs and judiciary must be feeling the heat to drag up insulting comparisons of Scotland with Nazi Germany ... and remember, everyone, these Sheriffs and Judges are of course, lawyers or at least they were, (until they were `elevated` to the bench as Sheriffs)
The key to the Judiciary`s consternation of the planned reforms lies right on page one of Sheriff Lockhart`s letter ...
"Although it is a requirement for appointment that candidates for the shrieval bench be members of the legal profession, once appointed, in the exercise of their judicial functions, they are not subject to the regulatory framework applicable to either branch of the legal profession. The judiciary is independent of and distinct from other practising members of the legal profession.The constitutional principle of the separation of the pwoers means that the judiciary is independent of the executive and the legislature."
Who wants outside interference into what they are up to ? ... certainly not lawyers - they have and are demonstrating that with their naked agression and boycotts of cases over the legal aid reforms and the prospect of independent regulation coming in the "Legal Profession & Legal Aid (Scotland) Bill"
So, why should Sheriffs (`elevated` lawyers) who currently don`t actually have much regulation over their activities at all, want independent or outside scrutiny of their own conduct or decisions ? ... - remember - in the words of the Sheriffs` Association`s letter - "they are not subject to the regulatory framework applicable to either branch of the legal profession" ... would that then make them almost immune to anything except a comet on collision with the earth ? ... probably.
Oh .. but you may say .. reading Sheriff Lockhart`s letter, he goes on to say :
"Sheriffs discharge their judicial functions and duties within the framework of the laws of Scotland which provide that decisions by Sheriffs, in civil matters, can be tested on appeal to the Sheriff Principal, the Court of Session and, in appropriate cases to the House of Lords; in criminal cases decisions can be tested on appeal to the High Court of Justiciary. In respect of devolution issues, an appeal can be taken or a reference made to the Judicial Committee of the Privy Council. That appellate framework provides effective machinery for the review of judicial decisions."
Well - that hasn`t stopped some strange antics on the Bench from Scottish Sheriffs in the past or all the injustices we read about on a daily basis with regards to Scotlands judicial system ... so, maybe reform is needed ? just as it is desperately needed in the legal profession, currently bending at the knees under 5000+ complaints a year against less than 10,000 lawyers .
What if someone asked to see the regulatory histories of some or all of Scotland`s Sheriffs back when they were practising solicitors ? ... oh my ... what a shock some people would get .... knowing that some of these Sheriffs when they were lawyers .. had long long histories of client complaints against them and poor service .. and that they are the ones now sitting in judgement on civil and criminal cases in Scotland.
Just think of the havoc some honest person could make if it was discovered that a Sheriff(s), in their previous position as lawyers, had been found by clients to have embezzled funds, lied, perhaps mishandled a case fraudulently to get a friend or legal partner off the hook, or had even committed criminal offences - then such complaints were covered up of course by the Law Society of Scotland or whoever else had been involved....
What impression would that give on the quality of Scotland`s Sheriffs then ? ... woudln`t take much doing, would it ? .. but who would print such a story ?
Read on for the article, from "The Herald" Newspaper, on the new attempt by the Sheriffs to stem any reform of their profession ... link at : http://www.theherald.co.uk/news/64162.html
Sheriffs step into row over judicial reform
LUCY ADAMS and ROBBIE DINWOODIEJune 16 2006
SCOTLAND'S sheriffs and Lord Cullen, the country's most high-profile judge, have entered the row with the Scottish Executive, accusing ministers of attempting to undermine the independence of the judiciary.
One sheriff has compared recent proposals to reform the judiciary to moves which helped bring about the dictatorship of Nazi Germany.
The views of sheriffs are normally confidential. In a rare move to make their views public, the Sheriffs' Association, which represents 90% of those who sit at Scotland's courts, claims the executive's proposals are unfounded and outwith the devolved powers of ministers.
The association believes the power to change issues of "great constitutional importance", such as judicial independence, lies in the hands of Westminster. Its members also believe the executive's recent proposals to place the control of all Scotland's courts under one person, the lord president, would undermine judicial independence.
The executive proposes to unify the sheriff and high courts and to make the training, conduct and operation of all courts the responsibility of the lord president.
However, the responses of Lord Cullen, a former lord president, and the sheriffs echo the concerns of a number of senior judges who believe the changes would increase the lord president's already huge workload, forcing him to employ large numbers of civil servants.
Lord Mackay, the High Court judge, Lord McCluskey, a retired judge and the Faculty of Advocates have already criticised the proposals on similar grounds.
In his response, Lord Cullen of Whitekirk, who chaired inquiries into the Dunblane massacre and the Piper Alpha disaster, describes aspects of the consultation document as "absurd . . . misconceived and confused".
He wrote: "Further, the statement . . . in the paper that 'judges need to be managed' betrays a lack of understanding of the significance of judicial independence, despite the claim to the contrary."
Their views are backed by individual sheriffs in their responses to the consultation.Sheriff Colin Mackenzie, who sits in Stornoway, wrote:
"Politicians and executive . . . will always try to influence the judges ? it's an inevitable extension of their no doubt natural desire for absolute control . . . it has been recognised as a dangerous tendency in the past and must be resisted in future if freedom from tyranny . . . is to mean something.
"Dictatorship was, I am sure, far from the minds of the educated pre-Nazi state Germans who gave blessing to the legislation which muzzled their judiciary and paved the way for Hitler to come to power."
Sheriff John Montgomery, who sits at Ayr, wrote: "The document alarmingly displays gross ignorance of the concept of judicial independence; it proceeds on false premises, errors of fact and law and unfounded assertions. It is very concerning the minister for justice and lord advocate have put their names to it.
The consultation period is insultingly short to Scotland's fine heritage of judicial independence."
Yesterday, it was revealed the programme to introduce the proposals could be delayed until after the Holyrood election next year. Sources have told The Herald the revamp of the judicial system could be put on hold, partly because of the sheer weight of criticism and the fact Holyrood's Justice 1 committee is overstretched.
Cathy Jamieson, Justice Minister, yesterday insisted ministers had been "fully respectful" of the independence of the judiciary. "We are committed to this fundamental constitutional principle," she said.