MacAskill fails to shine at Holyrood on McKenzie Friend questions

Justice Secretary Kenny MacAskill came up with anything but a straight answer to questions posed by Margo MacDonald MSP at the Scottish Parliament on the subject of enacting McKenzie Friends in the Scottish courts.

While England & Wales has had McKenzie Friends for some 39 years, Scotland’s Justice Secretary can only manage further delays, however, we might be saved by Lord Gill in his forthcoming review of the Civil justice system, where it is rumoured he supports the introduction of McKenzie Friends to Scotland. (Not if the Law Society have their way – Ed)

Kenny MacAskill faces questions over the 39 year lack of McKenzie Friends in Scottish Courts.

McKenzie Friends

5. Margo MacDonald (Lothians) (Ind): To ask the Scottish Executive whether it will introduce the practice of allowing a McKenzie's friend into law courts. (S3O-6781)

The Cabinet Secretary for Justice (Kenny MacAskill): The term "McKenzie friend" refers to the practice in English and Welsh courts in which parties are given assistance from someone other than a lawyer in presenting their case in court. At present, a party may be represented by a friend, relative or lay representative, such as a citizens advice bureau representative, in the small claims and summary cause sheriff courts. That covers actions up to a value of £5,000.

The right hon Lord Gill's civil courts review is considering the issue of McKenzie friends. I look forward to receiving his report, which is expected in June, and I will carefully consider all his recommendations about McKenzie friends and about wider issues concerning those who represent themselves in court. Those wider issues include the funding of court actions, improved court procedure and other methods of dispute resolution.

Margo MacDonald: I thank the cabinet secretary for his reply and for his attention to Lord Gill's upcoming report. Before its publication, he will see the petition on the matter that was discussed in committee just two days ago.

I draw to the cabinet secretary's attention that the McKenzie friend system, which we advocate, does not allow anyone to advocate on behalf of someone in court; the McKenzie friend is simply there to advise or support a person who might be without legal representation. The cabinet secretary must agree with me that that would only enhance the procedure in Scottish courts.

Kenny MacAskill: Anything that makes people more comfortable in a court environment is to be welcomed. There must be majesty of the court and the experience of court can be traumatic for whatever reason, so people's ability to have support is important.

The question of who has formal representation rights is of greater complexity and must be considered in the round. We have addressed the issue at small claims and summary levels, and there can be representation in some debt cases in ordinary actions. We have broadened the approach to give the Association of Commercial Attorneys various powers, which have been signed off by the Lord President. One thing that differentiates Scotland from England is that there is wider access to legal aid in Scotland than there is south of the border, which means that there is greater opportunity for representation.

Lord Gill must consider the matter because it is not simply about comfort and people's ability to be assisted in court, whether by a lay or legal representative, but about whether court is the appropriate forum in which to deal with a matter. That is why the issue should be considered in its totality. I look forward to Lord Gill's review, and I will be more than happy to discuss the matter thereafter.

McKenzie Friend petition to Holyrood gains support from Margo MacDonald

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 :

Scottish Courts (McKenzie Friends) (PE1247)

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.

15:15

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.

15:23

Margo MacDonald : Leadership fawning not a good point for a democracy

and she would be correct of course ... in every way.

Just look at the way Douglas Mill's leadership cult has ruined the Law Society of Scotland and the Scottish legal profession in general ... what better example than that !

Margo MacDonald writes in the Edinburgh News :

Leadership cults do no good for democracy

Leadership cults do no good for democracy

By MARGO MacDONALD

THE death of Benazir Bhutto has put democracy under the microscope. Her shocking demise may have made her homeland of Pakistan impossible to govern in what we would recognise as a "democratic" fashion.

The people who wrote and spoke millions of words about Benazir's death possibly being a fatal blow to the reinstatement of democracy in Pakistan must surely blush with embarrassment now that her last will and testament are in the public domain. It's hardly the action of a convinced democrat to hand over leadership, let alone ownership, of a political party to an individual of their choice.

Yet that's what she did: Benazir left unambiguous instructions that might disappoint even her most fervent supporters in the PPP and other political parties across the globe. She gifted the PPP to her son and, until he is old enough, to her husband's care. Leaving aside whether a person who has served eight years for corruption, and whose nicknames vary from Mr ten per cent to Mr 30 per cent, is judged suitable to run Pakistan by anyone other than his wife, such action is dynastic, not democratic.

No more or no less dynastic than passing the SNP leadership back and forth between Alex Salmond and John Swinney, or Nelson Mandela's role in Thabo Mbeki's succeeding him as leader of the ANC and South Africa, or Tony Blair and Gordon Brown deciding the leadership of Labour, could well be one response from Pakistan.

Supporters of Benazir would say that, wouldn't they? But would they have a point? Not really. Although the SNP membership was treated as a mere backdrop against which the Salmond/Swinney show was performed, and party participation amounted to cheers and hand-clapping, the SNP rules gave everyone a chance of standing for election . . . in theory, at least. The ANC change of leadership was very much in the same mould.

The failure to score in one of the most basic tests for democracy, namely, that party members and the voters are the people to decide which leader they'd prefer, opens up an obvious difference between Pakistan, the UK and other democracies. The two attempts at dynastic family occupation of the White House, by the Kennedy and the Bush clans, have both ended in failure, and it looks as though it's not going to be third time lucky for the Clintons, either.

But we daren't be complacent that our own democracy is immune to being subverted, by accident or design. Instead of identifying with, and supporting or opposing democratic political parties or ideologies, we have been conditioned by marketing techniques and mass media communication to become the groupies in political leadership cults. Democracy has to be worked at, even when politicians are reviled. It isn't a natural phenomenon like rain. Without the effort and support of the community that it's meant to support, inspire, protect and make fairer, a democratic system can fall into disrepair and be replaced, ultimately, by an oligarchy, or a "Father of the nation" figure.

So, although the chaos of election night in Scotland last May seems a long, long way from the death of Benazir Bhutto, rioting in Nairobi or the abyss that might be opening up in front of South African voters, they all encompass attempts to determine the outcome of an election by an elite or an all-powerful individual rather than by the people.

Some of my colleagues will be surprised, and some angered, by my linking Pakistan, Kenya and South Africa to Scotland (some will be even more upset by my references to America, but that is another story). But, it's simplistic to claim democracy is served if every elector can vote freely. The institutions of state must be efficient, accountable to electors and absolutely above suspicion.

Institutions, meant to serve the public good, have been used for party political or personal gain in this country as in others I have mentioned. Remember "cash for honours"? Lots of people tut-tutted but backed off from allowing the law to run its course against people accused of breaking it. Why? Because the public thinks the House of Lords less important in policymaking terms than the House of Commons. But this is a misguided attitude. Their Lordships are privileged in our society and if we are prepared to allow them to abuse their privilege and power, however limited, we subvert one of the supporting pillars of democracy.

Last year's Scottish elections were a disgrace. Perhaps because of the embarrassment of having our inadequacies exposed to the world in this way, in Holyrood and in influential quarters outside, there appears to be an agreement to move on as quickly as possible . . . unsurprising, as the big parties, the only kind left in Holyrood, all tried to tweak the ballot papers to their advantage.

"Alex Salmond for First Minister" proved to be a very successful ploy, and to be fair he's been a pretty good one to date, but that shouldn't blind us to the damage done by this device to our democratic processes in Scotland.

The SNP leader's popularity is now more of a determining factor than the raison d'etre of the SNP itself. Who decided this? Not the party, not the people, but the leader and his praetorian guard. In the long term, the dangers of the cult of personality in Scotland are no less than they are now in Pakistan or Kenya.

Margo MacDonald calls on Lord Advocate to explain World's End trial disaster

Never one to shy away from finding out the nitty gritty of things, well, mostly, although it might depend sometimes, Margo MacDonald MSP has written to the Lord Advocate on the World's End murder trial disaster, seeking answers to the performance of Chief Prosecutor Alan MacKay - yes, the one who went AWOL before the Judge threw out the case ...

More silly explanations & excuses expected from the Crown Office ?

The Scotsman reports :

MacDonald writes to law chief on World's End fears

HAMISH MACDONELL SCOTTISH POLITICAL EDITOR

MARGO MacDonald, the independent MSP, has raised new concerns over the collapse of World's End murder trial.

She has written to Elish Angiolini, the Lord Advocate, questioning the ability of the Advocate Depute Alan Mackay to try the case on behalf of the Crown Office.

The letter raises a series of questions about his performance during the case.

Ms MacDonald stated: "I think it relevant that the public should have a clear understanding of whether the Advocate Depute was fully able to prosecute the case against Angus Sinclair."

The World's End trial collapsed in August when Lord Clarke threw out the case against Sinclair, ruling there was not enough evidence for a jury to reach a verdict.

Ms Angiolini then took the rare step of making a statement to MSPs, defend- ing the prosecution's role.

This prompted an extraordinary attack by the Lord Justice-General, Lord Hamilton, who claimed her statement had been disrespectful and undermined the judiciary.

Ms MacDonald said she had refrained from asking questions about Mr Mackay's "health and fitness" before, but she said she now felt answers had to be given about his role in the trial's collapse.

Mr Mackay disappeared as this happened and was not present to hear Lord Clarke throw out the case.

Ms MacDonald said in her letter: "I think it important Mr MacKay's performance and personal feelings during the trial are separated from the wider questions prompted by the World's End trial."