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

Holyrood to hear that McKenzie Friends will bring much needed help to litigants in Scots courts

A petition to the Scottish Parliament, Petition PE 1247, seeking to install the facility of McKenzie Friends in Scotland, will be heard tomorrow at Holyrood.

We reported on the McKenzie Friend Petition last week, HERE and wish it the best of luck !

The Scotsman reports :

Little help from my friends

Published Date: 04 May 2009
By John Forsyth

A PETITION to the Scottish Parliament calling for the introduction of McKenzie Friends into Scottish courts may be pushing at a door that's already swinging open.

A McKenzie Friend is a non-legally-qualified supporter, who can sit with someone representing themselves in a civil case and provide assistance in a court hearing.

The McKenzie Friend cannot address the court unless invited to by the judge, but can take notes, help with case papers, quietly give advice on points of law or procedure; and prompt the litigant with questions to put to witnesses.

They have been a fixture on the civil litigation landscape in England and Wales for nearly 40 years and have spread to jurisdictions around the world, but curiously never to Scotland.

The petition, to be discussed tomorrow, has been presented by Stewart McKenzie (no relation) who lives near Perth. He says: "England's had it for 38 years so why don't we?"

Mr McKenzie says he heard about McKenzie Friends a few years ago and couldn't find anybody to explain why they aren't allowed in Scotland: "I think it's shocking that if you are forced to present your case on your own because you can't afford a lawyer and don't get legal aid, you aren't allowed any help in court. This petition isn't about any individual case and isn't about any case I'm involved in. It's for the people of Scotland."

He observes that when Heather Mills sacked her legal team in the divorce hearing with Sir Paul McCartney, she had McKenzie Friends to help her – not one, but three, including her sister.

The term comes from an otherwise unremarkable London divorce case, McKenzie v McKenzie, in 1971. On the night before the hearing, the husband discovered he was not going to get legal aid to be represented by a solicitor. His wife did have legal aid. Mr McKenzie was determined to represent himself but was not on top of the case.

He had been in contact with a firm of solicitors, Jeffrey Gordon & Co who had taken on a recently-qualified Australian barrister, Ian Hanger, on a gap year. He was sent to court to see what he could do to help Mr McKenzie.

Speaking from Brisbane, Mr Hanger, now one of Australia's most-respected QCs, recalls the events that led to his place in legal folklore with some amusement.

"I sat beside Mr McKenzie and there was a lot of whispered consultation between us," he says. "The judge was getting increasingly irritated. After lunch, the judge asked me who I was and what I was doing, and then announced that he'd had enough and sent me to the public gallery. He said I could not speak to Mr McKenzie except during adjournments."

That rendered the exercise futile and Hanger did not return for the second day. In due course the judge reached his conclusions. Shortly afterwards, Hanger and his friend from Australia, Richard Chesterman, now an Appeal Court Judge in Queensland, planned to set off for a car tour of Scotland. On the day before they left, Jeffrey Gordon sent a copy of the McKenzie v McKenzie judgment to Hanger with a request that he advise on prospects of appeal. There did not appear to be any.

Rather facetiously, Hanger wrote on the papers: "The judge was wrong to exclude me."

That became the ground of appeal. The appeal was upheld and McKenzie Friends haven't looked back.

Steve Hynes, director of the Legal Action Group, says: "McKenzie Friends are very common in England and Wales. As legal aid has receded for an increasing proportion of the population, the vacuum has been filled to a considerable extent by McKenzie Friends. I know a large proportion of debt cases these days will involve McKenzie Friends.

"There's no real point in instructing a qualified lawyer when there are no legal points at issue. The hearing will be about rescheduling debt and it is better to have someone by your side who knows about debt and accounting than law."

Participation of a McKenzie Friend is still at the discretion of the judge in every case, but their position has been underpinned by the incorporation of the European Convention of Human Rights into law in England and Wales.

The president of the Family Law Division in England circulated a note to his judges last year spelling out, in the light of the growth of 'litigants in person' in all levels of family court, "the attendance of a McKenzie friend will often be of advantage to the court in ensuring the litigant in person receives a fair hearing ... When considering any request for the assistance of a MF, the Human Rights Act ... is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request ... In the event of objection, it is for the objecting party to rebut the presumption in favour of allowing the MF to attend."

Stewart McKenzie's petition has drawn support from Which? magazine, which has lodged a submission arguing that "the right to use a McKenzie Friend would be highly beneficial and could only result in a fairer hearing and outcome for members of the public".

Lord Gill has been considering a major overhaul of Scottish civil justice and his office has been in touch with the Petitions Committee advising that a question about McKenzie Friends was included in its consultation document of November 2007 and the matter will be addressed in his final report that he hopes to submit to Ministers by the end of next month.

It is difficult to imagine he will argue against the concept.

In the meantime, Ian Hanger QC, the legal prototype, says: "If the Petitions Committee will fly me over to Edinburgh I would love to address them on the virtues of the McKenzie Friend."