The Scottish Parliament’s Petitions Committee considered at its 5th May hearing, a proposal to enact the facility of McKenzie Friends in the Scottish Courts.
McKenzie Friends have been excluded from Scotland since the whole issue of a McKenzie Friend took place, some 39 years ago in the London courts. (Time we caught up then – Ed)
Here follows the video clip of Holyrood’s Petitions Committee’s hearing of the McKenzie Friend’s petition, with Margo MacDonald present, giving a very thorough brief on the advantages of having a McKenzie Friend alongside you in court.
Petition PE1247 McKenzie Friends for Scotland :
The Convener: Our final new petition is PE1247, from Stewart Mackenzie, which calls on the Parliament to urge the Scottish Government to introduce a McKenzie friend facility in Scottish courts as a matter of urgency.
Margo MacDonald has expressed an interest in the petition. I invite her to comment on it.
Margo MacDonald: I have been interested in lay representation in the Scottish courts for a while. My interest arises out of the failure of Scots law to enact a provision that has been running successfully in England for about 20 years now. That provision allows professional representation rather than legal representation in highly complex technical cases such as fraud cases or cases in which it is necessary to have knowledge of the construction industry. Companies may apply to be registered to provide such representation. Only two or three have registered, but the system works because not many cases of such complexity go through the English courts every year. There would be even fewer such cases in Scotland, but we have failed to enact that legislation, and I have yet to be given a satisfactory explanation why.
I now find that in civil court cases, for example involving the rescheduling of small debts, people can find it impossible to get legal representation. They might be unable to afford legal representation in a more complex action so they need to represent themselves in court. For the past 39 years, what is known as the McKenzie friend system has been operational in England. That allows persons who are defending themselves to be supported, aided and backed up by expert information or even simple help. For example, having spread out my papers on the table, if I start really to shake, it might be handy for me to have a McKenzie friend to fix my papers. That is the situation in which unqualified persons can find themselves in court. That is the sort of function that a McKenzie friend might fulfil.
As well as being backed by Which? magazine and the Consumers Association, the petition appears to be backed by the European convention on human rights, which is heavy-duty support. The European Court of Human Rights has defined the principle of equality of arms as meaning that "a party must be able to put forward his arguments in conditions such that he is not put at a considerable disadvantage vis-à-vis the other side".
If someone is unrepresented in a court, they are at a disadvantage to start off with. That disadvantage is made considerable if they are denied the practical support that I have mentioned.
In essence, Mr Mackenzie's petition asks that the Scottish courts incorporate the principle and facility of a McKenzie friend as soon as possible. Lord Gill seems to support the idea, so I think that the petition is a serious runner for receiving the committee's support.
The Convener: Do members have any comments?
Robin Harper: I would be happy to act as a McKenzie friend to Margo MacDonald at any time.
Margo MacDonald: Thank you.
The Convener: You are an old charmer, Robin. A silver fox.
Robin Harper: The idea seems so obviously good and full of common sense that we must pursue it. We should ask the Scottish Government directly whether it will introduce a McKenzie friend facility in Scottish courts and, if not, why not. We can ask whether the matter will be included in the Scottish Law Commission's eighth programme of law reform.
We could also ask a number of other institutions—including the Law Society of Scotland, the Faculty of Advocates, the Lord President of the Court of Session, the Scottish Court Service, Citizen Advice Scotland, Money Advice Scotland and the Scottish Consumer Council—whether they support the introduction of a McKenzie friend facility and, if not, why not.
Nigel Don: It is worth noting that the McKenzie friend was not introduced by the British Government but was simply allowed by the courts. The matter was tested in the Court of Appeal, which said that the McKenzie friend should be allowed. If members are looking for helpful material, I can point them to a wonderfully comprehensive review—it is dated about 2006—by Robin Spon-Smith, which I found on the internet. He shows how the law has developed in England and Wales and suggests how it could develop in Scotland. We can write to the Government and the Lord President, but it is plainly open to the courts to introduce a McKenzie friend system. They do not need to be told. We probably just need to encourage them to do that. If Lord Gill's review will encourage the introduction of such a facility, we will probably find that nothing else is needed other than perhaps a nod from the Lord President.
Margo MacDonald: May I respond to that?
The Convener: I will let other members comment before allowing Margo MacDonald to respond.
Bill Butler: I know that, in small claims hearings and certain other sheriff court procedures, parties can speak on behalf of the folk involved. However, if I may play devil's advocate, is there evidence that the McKenzie friend facility works as a support and is not simply superfluous?
Margo MacDonald: There is such evidence from England.
The Convener: You can also respond to the point that you intended to speak on previously, Margo, before I gently cut you off.
Margo MacDonald: To respond to Nigel Don's point, the reason for doing something now is that there has been such a time lag in implementing the provision that has been running successfully in England for expert lay representation in court rather than professional legal representation. It would appear that there is some form in this regard in the Scottish system.
On whether the McKenzie friend facility works, I point out that it has been running successfully in England for 39 years.
Bill Butler: I am not against asking the questions that Robin Harper suggested, but I just wonder about the evidential basis.
Margo MacDonald: Thankfully, it is not up to me to provide the evidential basis in written form. If you want it, I will ensure that Mr Mackenzie knows that the committee would like to see it. However, I think that it is self-evident that using McKenzie friends works, because they are used in England with no complaint.
Nigel Don: I point out to Bill Butler and others that McKenzie friends do not represent and put the case for others; rather, the person representing themselves puts their case and the McKenzie friend simply sits alongside and, as Margo MacDonald said, keeps the papers in order, nods, suggests and gives advice, help and encouragement. This is not to do with advocacy, which is a separate issue that the committee recently debated.
The Convener: We have a series of suggestions to explore. For example, with reference to Nigel Don's comment on the framework of the courts, the clerk has suggested that we could write to the Lord Chancellor's department in England to explore its experience of, and observations on, the McKenzie friend facility, which might help the dialogue on the issue that Bill Butler understandably raised. Robin Harper's suggestions are helpful, too. Do you have any final comments, Margo?
Margo MacDonald: No, except to say that I think that committee members can see the common sense in the McKenzie friend approach. I sense, too, that the committee wants to know that the facility is not superfluous to requirements, but I think that that can be demonstrated.
The Convener: Okay. I thank Margo MacDonald for her presence for this item. We will have a comfort break for a couple of minutes and a quick cup of tea before we move on to current petitions.