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.
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.