OFT put Executive on the spot by recommending lifting of restrictions in Scottish legal services

The Office of Fair Trading has predictably come out in favour of the Which? 'super complaint' and is recommending the opening up of legal services markets in Scotland.

This will ultimately benefit both the legal profession and the public, although from today's media exposure so far, which sees the Law Society of Scotland apparently caught off guard on this, the policy of the profession's regulator is that of maintaining resistance to the changes recommended by the OFT.

Perhaps the 'knights of the square table' at Drumsheugh Gardens were hoping their campaign against the Which? 'super complaint' had worked, notwithstanding the apparent occasional threat to the Scottish Executive that if such changes were implemented .. all 'friendly' deals with the Executive would be off, including the Legal Aid case boycott affair.

The view of one happy campaigner is expressed HERE after shredding the Cabinet Secretary for Justice yesterday on similar issues HERE

Over to the OFT for the details, and reporting on the issue from the Herald Newspaper.

OFT response to super-complaint recommends lifting restrictions in the Scottish legal services market

110/07 31 July 2007

The OFT has today made recommendations to the Scottish Executive and the legal professions in Scotland to lift restrictions which could be causing harm to consumers.

In Scotland there are restrictions on advocates' business structures, solicitors and advocates providing services jointly, third party entry into the market, and direct consumer access to advocates. The decision to recommend lifting these restrictions follows a super-complaint from Which? that called for these restrictions to be removed.

Download full response to the super-complaint (pdf 139 kb).

Which? argued that the current restrictions against such practices prevent legal services providers in Scotland from adapting their business to best fit the needs of Scottish consumers. The OFT concluded that the restrictions are unnecessary and believes that there would be benefits to consumers if they were lifted – such as efficiency gains and higher levels of innovation in the provision of legal services. The OFT is now looking to the Scottish Executive to outline its approach to removing these restrictions in Scotland, and the Scottish Executive has agreed to respond formally to these recommendations within 90 days.

Sean Williams, OFT Executive Director of Markets and Projects, said:

'There should be real benefits to Scottish consumers in allowing solicitors and advocates to adopt the most efficient businesses structures. I hope the Scottish Executive can work with the profession to remove restrictions that, in our view, are unnecessary and prevent solicitors and advocates from innovating to meet the needs of consumers.'

Kyla Brand, OFT Representative in Scotland, said:

'Scotland's legal services are hugely important for individuals and businesses – they underpin economic success and have always done so. The OFT wishes to see them grow and innovate, competing on equal terms with providers across the UK. We are committed to working with the parties in Scotland to make the system work better for all.'

NOTES

1. The right to submit super-complaints was created by section 11 of the Enterprise Act 2002. A super-complaint is defined under section 11(1) of the Act as a complaint submitted by a designated consumer body that 'any feature or combination of features, of a market in the United Kingdom for goods or services is or appears to be significantly harming the interests of consumers.'

2. On 8 May 2007 Which? submitted a super-complaint to the OFT about credit card interest calculation methods. See Which? website for details. Section 11(2) of the Act requires the OFT, within 90 days of receiving a super-complaint, to publish a reasoned response saying what action, if any, it proposes to take.

OFT backs consumer watchdog’s call for reform of Scottish legal services
LUCY ADAMS, Chief Reporter July 31 2007

An investigation into concerns that Scots are not getting sufficient access to affordable justice and legal representation has concluded that the current regulatory regime is "restrictive" and harmful to consumers.

The Office of Fair Trading (OFT) has upheld calls by Which?, the consumer watchdog, for a reform of the legal services market in Scotland, The Herald can reveal.

A "super complaint" lodged with the OFT in May by Which? recommended it address fears that the current regulation of Scottish legal firms is hindering competition in the market, restricting choice and pushing up the price.

The OFT has upheld that complaint and now the Scottish Executive has agreed to prepare a formal response within 90 days. However, any reform of the legal services market in Scotland could threaten the Scottish legal profession's closely guarded right to self-regulation.

Under reforms planned for the sector in England, banks and supermarkets will soon be able to join forces with law firms to provide legal services.

However, Which? believes north of the border there has been little appetite for exploring, let alone implementing, alternative ways of doing business from the legal profession and the executive.

Following a review by Sir David Clementi in England, organisations such as Tesco and the RAC should, from next year, be able to offer legal services alongside sandwiches or roadside assistance.

The changes, supported by the OFT, are intended to make the legal profession more responsive to consumer needs.

In Scotland activities such as conveyancing, litigation and obtaining confirmation in executries must be undertaken by solicitors. Other services such as will-writing can be done by people other than solicitors, but in practice that happens infrequently.

Following moves to liberalise the regulations on legal firms south of the border, HBOS, which has two million customers, launched a new service offering "everyday legal products" to customers at what it claims will be considerably lower fees than those offered by High Street solicitors. The service is being rolled out through the bank's Halifax arm in England and Wales. However, Joel Ripley, head of Halifax Legal Solutions, said last year there are plans to extend it to Scotland.

The Halifax service, which will include discounted conveyancing, will preparation and a 24-hour legal helpline, is also set to provide access to a website where customers can prepare their own documents, including tenancy agreements and letters of complaints about faulty goods. These will be reviewed by qualified lawyers.

Customers will pay an annual membership fee of £89 which will give them free access to the helpline.

Sean Williams, an executive director of the OFT, said: "I hope the Scottish Executive can work with the profession to remove restrictions that in our view are unnecessary and prevent solicitors and advocates from innovating to meet the needs of consumers."

The OFT is now looking to the Scottish Executive to outline its approach to removing what it sees as "restrictions" and the Scottish Executive has agreed to respond formally within 90 days.

A spokeswoman for Which said: "We are delighted by the decision of the OFT."

OFT put Executive on the spot by recommending lifting of restrictions in Scottish legal services

The Office of Fair Trading has predictably come out in favour of the Which? 'super complaint' and is recommending the opening up of legal services markets in Scotland.

This will ultimately benefit both the legal profession and the public, although from today's media exposure so far, which sees the Law Society of Scotland apparently caught off guard on this, the policy of the profession's regulator is that of maintaining resistance to the changes recommended by the OFT.

Perhaps the 'knights of the square table' at Drumsheugh Gardens were hoping their campaign against the Which? 'super complaint' had worked, notwithstanding the apparent occasional threat to the Scottish Executive that if such changes were implemented .. all 'friendly' deals with the Executive would be off, including the Legal Aid case boycott affair.

The view of one happy campaigner is expressed HERE after shredding the Cabinet Secretary for Justice yesterday on similar issues HERE

Over to the OFT for the details, and reporting on the issue from the Herald Newspaper.

OFT response to super-complaint recommends lifting restrictions in the Scottish legal services market

110/07 31 July 2007

The OFT has today made recommendations to the Scottish Executive and the legal professions in Scotland to lift restrictions which could be causing harm to consumers.

In Scotland there are restrictions on advocates' business structures, solicitors and advocates providing services jointly, third party entry into the market, and direct consumer access to advocates. The decision to recommend lifting these restrictions follows a super-complaint from Which? that called for these restrictions to be removed.

Download full response to the super-complaint (pdf 139 kb).

Which? argued that the current restrictions against such practices prevent legal services providers in Scotland from adapting their business to best fit the needs of Scottish consumers. The OFT concluded that the restrictions are unnecessary and believes that there would be benefits to consumers if they were lifted – such as efficiency gains and higher levels of innovation in the provision of legal services. The OFT is now looking to the Scottish Executive to outline its approach to removing these restrictions in Scotland, and the Scottish Executive has agreed to respond formally to these recommendations within 90 days.

Sean Williams, OFT Executive Director of Markets and Projects, said:

'There should be real benefits to Scottish consumers in allowing solicitors and advocates to adopt the most efficient businesses structures. I hope the Scottish Executive can work with the profession to remove restrictions that, in our view, are unnecessary and prevent solicitors and advocates from innovating to meet the needs of consumers.'

Kyla Brand, OFT Representative in Scotland, said:

'Scotland's legal services are hugely important for individuals and businesses – they underpin economic success and have always done so. The OFT wishes to see them grow and innovate, competing on equal terms with providers across the UK. We are committed to working with the parties in Scotland to make the system work better for all.'

NOTES

1. The right to submit super-complaints was created by section 11 of the Enterprise Act 2002. A super-complaint is defined under section 11(1) of the Act as a complaint submitted by a designated consumer body that 'any feature or combination of features, of a market in the United Kingdom for goods or services is or appears to be significantly harming the interests of consumers.'

2. On 8 May 2007 Which? submitted a super-complaint to the OFT about credit card interest calculation methods. See Which? website for details. Section 11(2) of the Act requires the OFT, within 90 days of receiving a super-complaint, to publish a reasoned response saying what action, if any, it proposes to take.

OFT backs consumer watchdog’s call for reform of Scottish legal services
LUCY ADAMS, Chief Reporter July 31 2007

An investigation into concerns that Scots are not getting sufficient access to affordable justice and legal representation has concluded that the current regulatory regime is "restrictive" and harmful to consumers.

The Office of Fair Trading (OFT) has upheld calls by Which?, the consumer watchdog, for a reform of the legal services market in Scotland, The Herald can reveal.

A "super complaint" lodged with the OFT in May by Which? recommended it address fears that the current regulation of Scottish legal firms is hindering competition in the market, restricting choice and pushing up the price.

The OFT has upheld that complaint and now the Scottish Executive has agreed to prepare a formal response within 90 days. However, any reform of the legal services market in Scotland could threaten the Scottish legal profession's closely guarded right to self-regulation.

Under reforms planned for the sector in England, banks and supermarkets will soon be able to join forces with law firms to provide legal services.

However, Which? believes north of the border there has been little appetite for exploring, let alone implementing, alternative ways of doing business from the legal profession and the executive.

Following a review by Sir David Clementi in England, organisations such as Tesco and the RAC should, from next year, be able to offer legal services alongside sandwiches or roadside assistance.

The changes, supported by the OFT, are intended to make the legal profession more responsive to consumer needs.

In Scotland activities such as conveyancing, litigation and obtaining confirmation in executries must be undertaken by solicitors. Other services such as will-writing can be done by people other than solicitors, but in practice that happens infrequently.

Following moves to liberalise the regulations on legal firms south of the border, HBOS, which has two million customers, launched a new service offering "everyday legal products" to customers at what it claims will be considerably lower fees than those offered by High Street solicitors. The service is being rolled out through the bank's Halifax arm in England and Wales. However, Joel Ripley, head of Halifax Legal Solutions, said last year there are plans to extend it to Scotland.

The Halifax service, which will include discounted conveyancing, will preparation and a 24-hour legal helpline, is also set to provide access to a website where customers can prepare their own documents, including tenancy agreements and letters of complaints about faulty goods. These will be reviewed by qualified lawyers.

Customers will pay an annual membership fee of £89 which will give them free access to the helpline.

Sean Williams, an executive director of the OFT, said: "I hope the Scottish Executive can work with the profession to remove restrictions that in our view are unnecessary and prevent solicitors and advocates from innovating to meet the needs of consumers."

The OFT is now looking to the Scottish Executive to outline its approach to removing what it sees as "restrictions" and the Scottish Executive has agreed to respond formally within 90 days.

A spokeswoman for Which said: "We are delighted by the decision of the OFT."

Lord McCluskey to Scottish Executive - Don't mess with us or else

A famous well known retirned Judge returning to the trenches once again to attack any prospect of reform to the Judiciary & legal profession ? Whatever next in the saga of Scottish Law reporting ?

No big surprises as Lord McCluskey, formerly of the Court of Session and now on a shifting remit between London & Edinburgh whenever it suits, comes out fighting and condemns anyone who dare suggest reforming the judiciary or the legal profession.

Granting public platforms to those who prefer the days of old and prefer to keep us all that way isn't getting the public onboard for a cause which is dragging both the bench and the legal profession as a whole into the lowest ranks of public opinion ... but for those of you interested in the machinations of Lord McCluskey's 'ideal world', read on.

Let's hope Lord McCluskey doesn't jump ship yet again and join the reformers .. he might get a bigger audience.

Which button was it they used to press on ex Soviet Union Communist Party General Secretary Konstantin Chernyenko to get a response ? red or green ? I forget ... answers on a postcard please ...

Democracy needs us all to monitor each other better
LORD McCLUSKEY

IN HIS powerful article in The Scotsman last Monday, Professor Robert Black borrowed a phrase from one of Scotland's greatest judges. Speaking of the received notion that judges never make new law, the late Lord Reid said: "We don't believe in fairytales any more." Black suggests we should examine sceptically another possible myth that all lawyers were brought up to believe: is the celebrated independence of the Lord Advocate in criminal justice a fairytale? I should like to go further back and ask if it really matters. The answer, without doubt, is that it does. Why?

Democracy is greatly prized. However, many of us, here and abroad, make the error of supposing that democracy is really just about having fair elections at reasonable intervals so that our rulers may be called to account, kept in their place. Important though elections are, true democracy rests upon a number of essential pillars, including a free press, strong trade unions that aren't puppets of the state, an independent judiciary and many other nongovernmental organisations (NGOs) that constitute "Civil Society".

Thus taking the example of Russia, we observe that its retreat from democracy is marked by the Kremlin's dominance of the media, a subservient judiciary that is neither strong nor independent, the absence of a members-based trade-union movement and close, restrictive control of NGOs by the state. But Russia exhibits another anti-democratic feature of which many people are hardly aware: a state-controlled prosecution service, supported by the notorious, now renamed, taxes police.

This serves to remind us that a less appreciated pillar of true democracy is the existence of a prosecution service that takes vital decisions about whom to prosecute - or not - without orders from the political power; and that an independent prosecution service cannot operate democratically without the backing of a police force that investigates impartially.

We have had the recent example of an exhaustive police investigation of the "Cash for Honours" allegations. Few imagine the police pulled their punches just because their detective work led to the heart of government. Nor do informed and impartial observers suggest the Crown Prosecution Service's decision was undermined by political orders. So, while it is foolish to imagine perfection can be achieved in the operation of such bodies, we can be reasonably satisfied that our criminal authorities adhere well to the tradition of taking an impartial approach to criminal justice.

That said, we cannot ignore the fact that, as with many constitutional essentials, the independence of those in charge of criminal justice rests upon undefined conventions that evolved over centuries but, despite that, can be changed quickly, surreptitiously and without legislation.

Many close to the administration of justice fear that this is happening to the public prosecution service in Scotland, especially because of the diminished role and status of the Lord Advocate, traditionally the embodiment of a robustly independent approach to criminal prosecution.

The independence of the Lord Advocate as public prosecutor has always been treated as the cornerstone of criminal justice in Scotland. Countless decisions of the High Court of Justiciary have rested upon the unchallengeable understanding that the Lord Advocate can be relied upon to act invariably as an impartial minister of justice.

That axiom rested upon a number of unspoken assumptions, based on experience. For example, the Lord Advocate was invariably one of a small number of lawyers who, as members of the Faculty of Advocates, shared an extremely powerful tradition of independence. Many, including HP Macmillan, Ian Shearer and James Mackay, were not members of any political party when appointed Lord Advocate. The faculty was small but its traditions were extraordinary. It has recently produced, among others: the leaders of the Labour party, John Smith, and of the Liberal Democrats, Sir Menzies Campbell; a Foreign Secretary, Sir Malcolm Rifkind; a Lord Chancellor, Lord Mackay of Clashfern; a Chancellor of the Exchequer, Alistair Darling; the Defence Secretary, Des Browne; and several of the finest judges that the United Kingdom has ever had, including Lords Reid and Kilbrandon. The whole tradition of daily practice at the Scottish Bar was of total independence from political pressure: every advocate had to cast aside his personal views and prejudices and present his client's case publicly in open court. Each advocate was self-employed, none submitting to the dictates of an employer.

One other thing. Because faculty membership was small, everybody knew the strengths and weaknesses of the others: the ethics of each were transparent to all. The Lord Advocate and Crown Office were located in Parliament House, and knew judges and advocates well. Cosy, introverted, perhaps even slightly incestuous, outsiders might think, but a perfect environment for talent to flourish and weaknesses to be exposed. Judges knew how far they could trust a Lord Advocate and his deputes.

That context has changed. The change began - unremarked - in 1982, when the Law Officers and the Crown Office quit Parliament House. They gained more office space but lost daily contact with the living ethos of the Scottish system of justice: the bunker mentality inevitably followed later.

After 1999, the Lord Advocate moved much closer to political ministers and rarely ventured into Parliament House. The Advocate-deputes came to include many, recruited from the Fiscal service, with no experience of the environment in which that ethos grew. Even the law officers are no longer experienced advocates immersed in the traditions of the High Court. They too are recruited from the middle ranks of a salaried prosecution service, though paid significantly less than the permanent civil servants who dominate the Executive's approach to the legal system

I make no criticism of the present Law Officers; but, regardless of their personal qualities, they lack the cultural infrastructure from which to assert independence against powerful politicians. They have no security of tenure and can readily be replaced by other salaried public servants. If the Lord Advocate were to be removed, it would hardly cause a constitutional crisis, though it could cause personal problems for the unemployed lawyer. The foundation of the Lord Advocate's independence has been undermined. Constitutional independence is not just a personal virtue.

Imagine the scenario if a powerful First Minister concluded that, for political reasons - for example, to avoid possible prejudice to community relations - a terrorist case should not be prosecuted in Scotland where the offence was perpetrated but immediately transferred to England for prosecution there. Would the Lord Advocate, sitting in a Cabinet committee with the First Minister, firmly tell him such decisions were for the Lord Advocate, not the First Minister? It is premature to enquire into what truly happened when, only three days after the alleged terrorist incident at Glasgow airport, the Lord Advocate announced those arrested were being transferred to England to be dealt with there. But this extraordinary procedure raises extremely important questions.

Preserving our democracy demands that, when the time comes, those questions be answered. Let us hope that MSPs know how to ask them.

Scottish Legal Complaints Commission to be based in Edinburgh

The new Scottish Legal Complaints Commission, formed as a result of the passing of the Legal Profession & Legal Aid (Scotland) Act 2007 will be located in Edinburgh, rather than some far flung corner of the empire.How far from the present home of complaints regulation at Drumsheugh Gardens is anyone's guess, as no property has yet been selected so reports the Edinburgh Evening News.

chuff chuff at the remarks Edinburgh is accepted as "Scotland's legal centre" .. has anyone from the Glasgow Bar Association got anything to say about that one ?!

No doubt the new organisation will face sniping from both the The Law Society of Scotland and campaigners alike - but hopefully the Scottish Executive will keep the legal profession's filthy mitts off the new SLCC, or we will be in for more of a public bashing later on for yet more complaints fiddles. Did I just say fiddle ?

Capital base for new law complaints body

IAN SWANSON SCOTTISH POLITICAL EDITOR

EDINBURGH today won the first relocation battle to be decided under the new SNP administration at Holyrood.

Justice Secretary Kenny MacAskill announced the new Scottish Legal Complaints Commission, with up to 60 jobs, will be based in the Capital.

It had been expected that the new body, due to start work in 2008, would be located elsewhere, in line with the relocation policy of the previous Scottish Executive to disperse public service jobs away from Edinburgh.

But Mr MacAskill said the Capital's recognised role as "Scotland's legal centre" had helped tip the balance in the city's favour.

The announcement has raised hopes that the new government will rethink the policy, which has seen thousands of civil service and quango jobs transferred out of Edinburgh - often just along the M8 to Glasgow.

The decision also means there will be no further upheaval in a shake-up of the legal complaints system, which is said by senior legal sources to be "chaotic".

The new commission will take over the Scottish Legal Services Ombudsman and the Law Society. But it will have the power to award up to £20,000 compensation for inadequate service - four times the current limit.

The commission will be headed by a board chaired by a non-lawyer, with a majority of members from outside the legal profession.

The Executive says it will ensure that complaints against the legal profession are resolved quickly.

Four Ombudsman employees and 34 full-time Law Society staff are legally entitled to transfer to the SLCC if they want. But the commission will also recruit new staff to create a workforce of up to 60.

Fife, West Lothian, North Lanarkshire, Glasgow and East Ayrshire had all been shortlisted to become the headquarters for the commission. But ministers came down in favour of the Capital.

No premises have been chosen, but the government hopes that in the longer term the commission can share accommodation with other small ombudsman-type services.

Making the announcement today, Mr MacAskill said: "The decision of where to site the commission was finely balanced.

"However, Scotland's capital is widely recognised as Scotland's legal centre. This decision places independent complaints handling at the heart of the civil and criminal justice system and close to the hub of the legal profession."

The previous Executive's relocation policy was heavily criticised in a report by the Scottish Parliament's audit committee earlier this year, which described it as a "blunt instrument" which had failed to bring about a proper dispersal of jobs in Scotland.

It pointed out that more than half the 2432 jobs to leave Edinburgh had simply been transferred to Glasgow.

An Executive spokesman said: "We are considering the future direction of the policy on public sector job location."

Criminal justice system inquiry long overdue for Scotland

Just about anyone who lives in Scotland could probably speak to woes with the legal system, whether that involves criminal law or civil law. Simply put there is a general perception, backed up by evidence from many parties there is a lack of justice being seen to be done in Scotland, and there are incredible restrictions on access to justice.

Professor Robert Black's article in the Scotsman earlier this week is a reflection on the woes of the Criminal justice system which many a solicitor and member of the public alike will be familiar with - but these are problems which have existed for many more years than the Lockerbie trial, which has been the recent focus of attention.

If the Lockerbie trial is used as the only basis of an inquiry in to the perceived 'culture of injustice' in Scots law as many campaigners claim, then what hope is there for us to put our own house in order and in the light of recent inquiries into allegations of impropriety in public life, who could be trusted to head such an inquiry into the legal system ?

Twiddling the thumbs over at the Scottish Executive's Justice Department on this issue will not get the job done and notably the legal profession's governing body also seems somewhat at odds with itself on how to deal with this issue.

The fairy story of the Crown's independence

ROBERT BLACK (The Scotsman)

AT THE end of June, the Scottish Criminal Cases Review Commission (SCCRC) referred Abdelbaset Ali Mohmed al-Megrahi's conviction of the Lockerbie bombing back to the High Court of Justiciary for a further appeal. The case had been under consideration by the SCCRC since September 2003 and its statement of reasons (available only to Megrahi, the Crown and the High Court) extends to more than 800 pages, accompanied by 13 volumes of appendices. The commission, in the published summary of its findings, rejected submissions on behalf of Megrahi to the effect that evidence led at the trial had been fabricated and that he had been inadequately represented by his then legal team, but went on to indicate there were six grounds on which it had concluded a miscarriage of justice might have occurred. Strangely, only four of these grounds are enumerated in the summary. They are:

• That there was no reasonable basis for the trial court's conclusion that the date of purchase of the clothes which surrounded the bomb was 7 December 1988, the only date on which Megrahi was proved to have been on Malta and so could have purchased them. The finding that he was the purchaser was "important to the verdict against him".

• That evidence not heard at the trial about the date on which Christmas lights were switched on in Malta further undermined the trial court's conclusion that the date of purchase was as late as 7 December.

• That evidence was not made available to the defence that four days before the shopkeeper made a tentative identification of Megrahi at an ID parade he had seen a magazine article containing a photograph of Megrahi, linking him to the bombing.

• That other evidence which undermined the shopkeeper's identification of Megrahi and the finding as to the date of purchase was not made available to the defence.

The reasons given by the commission for finding that a miscarriage of justice may have occurred in this case are not limited to the effect of new evidence which has become available since the date of the original trial and the non-disclosure by the police and prosecution of evidence helpful to the defence. The prima facie miscarriage of justice identified by the commission includes the trial court's finding in fact on the evidence heard at the trial that the clothes which surrounded the bomb were purchased in Malta on 7 December 1988 and that Megrahi was the purchaser. This was the cornerstone of the Crown's case against him. If, as suggested, that finding had no reasonable basis in the evidence, then there is no legal justification for his conviction.

I have always contended that no reasonable tribunal could have convicted Megrahi on the evidence led. Here is one example of the trial court's idiosyncratic approach to the evidence. Many more could be provided.

A vitally important issue was the date on which the goods that surrounded the bomb were purchased in Malta. There were only two live possibilities: 7 December 1988, a date when Megrahi was proved to be on Malta, and 23 November 1988, when he was not. In an attempt to establish just which of these dates was correct, the weather conditions in Sliema on those two days were explored. Shopkeeper Tony Gauci's evidence was that when the purchaser left his shop it was raining so heavily his customer thought it advisable to buy an umbrella to protect himself while he went in search of a taxi. The unchallenged meteorological evidence led by the defence established that, while it had rained on 23 November at the relevant time, it was unlikely to have rained at all on 7 December and, if there had been any rain, it would have been at most a few drops, insufficient to wet the ground. On this material, the judges found in fact that the clothes were purchased on 7 December.

On evidence as weak as this, how was it possible for the trial court to find him guilty? And how was it possible for the appeal court to fail to overturn the conviction? The Criminal Appeal Court dismissed Megrahi's appeal on the most technical of technical legal grounds: it did not consider the justifiability of the trial court's factual findings at all (though it is clear from their interventions during the Crown submissions in the appeal that at least some of the judges were only too well aware of how shaky certain crucial findings were and how contrary to the weight of the evidence).

I contend that at least part of the answer lies in the history of the Scottish legal and judicial system. For centuries courts have accorded a specially privileged status to the Lord Advocate. It has been unquestioningly accepted that, though a political appointee and the government's (now the Executive's) chief legal adviser, he (now she) would at all times, in his capacity as head of the prosecution system, act independently, without concern for political considerations, and would always place the public interest in a fair trial above the narrow interest of the prosecution in gaining a conviction. This vision of the role of the Lord Advocate was reinforced by the fact that, until the Scottish Judicial Appointments Board commenced operations in 2002, all Scottish High Court Judges (and sheriffs) were nominated for appointment to the Bench by the Lord Advocate of the day. This meant that, in all criminal proceedings, the presiding judge owed his position to the person (or one of his predecessors in office) who was ultimately responsible for bringing the case before him, and for its conduct while in his court.

The behaviour of the Crown in the Lockerbie trial was certainly not beyond criticism - and indeed it casts grave doubt on the extent to which the Lord Advocate and Crown Office staff can be relied on always to place the interest of securing a fair trial for the accused above any perceived institutional imperative to obtain a conviction. To illustrate this in the context of the Lockerbie trial, it is enough to refer to the saga of CIA cables relating to the star Crown witness, Abdul Majid Giaka, who had been a long-standing CIA asset in Libya and, by the time of the trial, was living in the US in a witness protection programme. Giaka's evidence was ultimately found by the court to be utterly untrustworthy. This was largely due to the devastating effectiveness of the cross-examination by defence counsel. Their ability to destroy completely the credibility of the witness stemmed from the contents of cables in which his CIA handlers communicated to headquarters the information that Giaka had provided to them in the course of their secret meetings. Discrepancies between Giaka's evidence-in-chief to the Advocate Depute and the contents of these contemporaneous cables enabled the defence to mount a formidable challenge to the truthfulness and accuracy, or credibility and reliability, of Giaka's testimony. Had the information contained in these cables not been available to them, the task of attempting to demonstrate to the court that Giaka was an incredible or unreliable witness would have been more difficult, and perhaps impossible.

Yet the Crown strove valiantly to prevent the defence obtaining access to these cables. At the trial, on 22 August 2000, when he was seeking to persuade the Court to deny the defence access to those cables in their unedited or uncensored form, the then Lord Advocate, Colin Boyd QC, stated that the members of the prosecution team who were given access to the uncensored CIA cables on 1 June 2000 were fully aware of the obligation incumbent upon them as prosecutors to make available to the defence material relevant to the defence of the accused and, to that end, approached the contents of those cables with certain considerations in mind.

Boyd said: "First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way. Second, they considered whether there was anything which would appear to reflect on the credibility of Majid... On all of these matters, the learned Advocate Depute reached the conclusion that there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special defence... I emphasise that the redactions have been made on the basis of what is in the interests of the security of a friendly power... Crown counsel was satisfied that there was nothing within the documents which bore upon the defence case in any way."

One judge, Lord Coulsfield, then intervened: "Does that include, Lord Advocate... that Crown counsel, having considered the documents, can say to the Court that there is nothing concealed which could possibly bear on the credibility of this witness?"

The Lord Advocate replied: "Well, I'm just checking with the counsel who made that... there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Majid on these matters."

Notwithstanding the opposition of the Lord Advocate, the court ordered the unedited cables to be made available to the defence, who went on to use their contents to such devastating effect in questioning Giaka that the court held that his evidence had to be disregarded in its entirety. Yet, strangely enough, the judges did not see fit publicly to censure the Crown for its inaccurate assurances that the cables contained nothing that could assist the defence.

Beyond the Lockerbie trial, the failure of the Crown to place the public interest in a fair trial above the interest of the prosecution in obtaining convictions is illustrated by the extent to which the Lord Advocate has recently had to be dragged through the Privy Council in London before making available to the defence material in the prosecution's possession that no-one could conceivably deny was of relevance and assistance in the accused person's defence. So much for the fairness of the trial being the Crown's primary and predominant motivation!

It is surely time for all involved in the Scottish criminal justice system to put away childish things. We are all of us, judges included, surely too old to believe any longer in fairytales. Fairytales can be convenient and comforting and can bolster our self esteem. But, as in the case of the belief that the Crown can uniformly be relied upon always to act selflessly in the public interest, they can be dangerous and, if acted upon, work terrible injustice.

It is submitted that the Lockerbie case demonstrates just how necessary it is, if public confidence is to be maintained, for the Scottish Executive to institute a high-powered independent investigation into all three aspects - investigation, prosecution and adjudication - of the Scottish criminal justice system, as has already been called for by, among others, Dr Jim Swire, Tam Dalyell and Professor Hans Koechler, the UN observer at the Lockerbie trial.

• Robert Black, QC, FRSE, is Professor Emeritus of Scots Law at the University of Edinburgh.

Fatal Accident Inquiry system review sought by Borders MSP

The FAI system comes under the spotlight today as Borders MSP Christine Grahame makes her case for a constituent to the Justice Secretary Kenny MacAskill after having to fight for more than three years to get the eventual FAI and conclusion, which is far from satisfactory.

As most solicitors who have taken on clients trying to get FAIs into the deaths of their loved ones, the process can be a long drawn out difficult affair, made all the worse by the mostly belligerent attitude of the Crown Office towards anyone who would seek to challenge their rulings when there shouldn't be an FAI.

There have been a crop of cases where not just an FAI has been denied to a case of an unresolved & unaccountable death, but also a lack of a proper investigation into the circumstances of that death. Many in private practice would acknowledge the need for review & reform in the FAI system, but on the other side of the coin, the Crown Office protects its right to hand down judgements as it sees fit.

The mood of the public would certainly seem to indicate a desire for reform of the FAI system but what course will the Scottish Executive take ?

Review call after barman's death (BBC NewsOnline)

A Borders MSP has written to Justice Secretary Kenny MacAskill seeking an urgent review of the fatal accident inquiry system.

The SNP's Christine Grahame said the time taken to deliver a ruling could cause families "unnecessary heartache".

She made her comments after the recent conclusion of an inquiry into the death of Kelso barman Stuart Foster in 2004.

A spokesperson for the Crown Office said investigating deaths had to be done "thoroughly and professionally".

Ms Grahame was involved in efforts to secure an inquiry into the death of Mr Foster who died after a drinking session Cavendish Club in Edinburgh in June 2004.

We had to fight for three years to get a conclusion to this fatal accident inquiry
Willie Foster

Sheriff Kathrine Mackie delivered her ruling on his death last week.

"It has taken more than three years for a report into his death to be completed," said Ms Grahame.

"Three years which have left Stuart's parents Willie and Margaret exhausted and ultimately devastated."

The young barman's father has also expressed concern about how the case was handled.

"We had to fight for three years to get a conclusion to this fatal accident inquiry," said Mr Foster.

"In the first instance, we waited two years after Stuart's death before we were told we were going to get one.

"It has been an absolute nightmare for me and my wife Margaret."

He said it took considerable effort to secure an inquiry.

"I think what the Crown were trying to do was sicken us in the hope that we would go away," said Mr Foster.

"I am morally, mentally and physically exhausted."

'Highly sensitive'

A spokesperson for the Crown Office and Procurator Fiscal Service said it had to balance the difficulty of cases with the need to deal with them quickly.

"Investigating deaths is a highly sensitive and complex area of work, and it is vital that procurators fiscal investigate deaths thoroughly and professionally," she said.

"The length of time taken to investigate will vary depending on the individual circumstances of each case.

"Procurators fiscal are aware of the upset and distress which is felt by next of kin and always seek to progress matters as quickly as possible."

Which? supercomplaint comes in for criticism but little doubt remains on need for reform

More From A Diary of Injustice in Scotland where a well known campaigner draws some valid points from the debate on widening access to legal services in Scotland, proving the profession's public stance on this issue is far from conducive to good client relations ...

Scots Law Chiefs turn hostile on consumer organisation in propaganda war against deregulation of legal services markets.

The Scottish legal profession's propaganda war against deregulating the Scottish legal services market heated up today with salvoes fired from both the Law Society of Scotland and the Faculty of Advocates against the Which "super complaint" to the OFT calling for an inquiry in to access to legal services in Scotland.

The legal profession are of course, unhappy that 'Which" have made a complaint to the OFT on the closed market of legal services in Scotland, where members of the public must use the services of a solicitor for legal services.

Predictably, the Law Society of Scotland and it's allies mounted a quick publicity war against any thought the public may harbour over wishing wider access to legal services in Scotland by means of other than using solicitors ... and we have seen many articles since, written by both sides in the debate.

Roy Martin QC, the Dean of the Faculty of Advocates begin the latest round of counter claims on implementing the Clementi reforms in Scotland, with a story in the Scotsman newspaper today claiming "ACCESS to justice would come under "serious threat" from deregulation of the Scottish legal services market, as proposed by the Which? super complaint to the OFT"

The Dean of the Faculty's claim, is of course, nonsense.

The Dean should know all about access to justice of course, as his colleagues in the Faculty and the Law Society of Scotland have been controlling & restricting public access to legal services since time & memorial.

Why ? because if you want to get to court, or if you need to use legal services, you have to go through a solicitor or an advocate, and pay them for the services you use. There is no alternative in the current world of legal services in Scotland, and it doesn't take a rocket scientist to understand from that simple explanation that the legal profession will obviously fight any changes to it's monopolistic business model, because that's the way they make their money from you.

For example. what if you have a case against the legal profession itself or a case that may impact on legislation the legal profession or judiciary do not want changed ? - chances are you get nowhere, and your injustice will continue for years, or perhaps never be resolved - simply because it's not in the interests of the legal profession to give you access to legal services, or access to justice.

Try getting a lawyer to sue a lawyer - or try making a complaint against a member of the legal profession or judiciary, then you will see just who controls access to Justice, certainly not the public, and far too many politicians, from ALL parties, have stood by for too long, knowing this full well.

The legal profession have certainly had some interesting allies in their quest to keep the legal services market for themselves, as I revealed in an earlier article Lord Advocate - Lord Hardie, actually recommended repealing Sections 25-29 of the Law Reform (Misc Provisions) Act 1990, which if implemented at the time, would have broken the lawyers monopoly on legal services and opened up access to justice for everyone in Scotland.

If anyone wants to read a few experiences of people when it comes to access to justice, they can look to our own Scottish Parliament's web site at :
Justice 1 Committee Regulation of the Legal Profession Inquiry 2002 & Justice 2 Commitee LPLA Bill Inquiry 2006 - which led to the passing of the Legal Profession & Legal Aid (Scotland) Act 2007

The Scottish Consumer Council's excellent report on how access to justice stacks up against the legal profession & it's current monopoly on legal services can be read here : Scottish Consumer Council Report - Complaints Against Solicitors

Douglas Mill, the infamous Chief Executive of the Law Society of Scotland, couldn't bare to be left out of the publicity war today either, and launched into the Which super complaint issue by claiming "The working group concluded that that overall the evidence backed the case for non-intervention in a market which is balanced by supply and demand. It is disappointing that Which? has produced a document which has no evidential base and contains fundamental errors, and which does not contribute in a meaningful way to the debate on such an important topic as the legal services market in Scotland. The society believes that the OFT should take no action on the super complaint."

Perhaps it might have been a good idea to ask Douglas Mill, the Law Society of Scotland Chief Executive why he felt solicitors human rights were in breach simply because they were going to lose the right to handle complaints against their own colleagues - the reason Mr Mill publicly threatened the Scottish Executive & Parliament last year with Court action if the LPLA Bill was passed - now there's a real access to justice issue !

Here's Douglas Mill in an earlier article, ranting on in a somewhat suicidal manner about critics of his beloved membership and stewardship of the Law Society of Scotland for all these years .. bringing in 5000 plus complaints a year against some 9,500 solicitors ... well, hasn't he done well now !

Isn't it a pity it's taking an English based organisation to protect the public's interests in Scotland and open up the debate on access to legal services ? but it does show the power of the Scottish legal profession to keep its monopolistic business market intact and thwart change as much as possible to-date.

However, perhaps the intervention by the Which consumer organisation raises the question, where are the SNP led Scottish Executive in this affair ?

Why is our own Scottish Government not doing more to open the access to legal services market in Scotland with a full implementation of the Clementi reforms which have been quite successful in England & Wales .. and why has no policy yet been announced on tackling the issues of injustice caused by the legal profession over the years , the SNP, for so long in opposition and now in power at the Executive, knows full well of but stands by watching - as a witness to abuse.

Is this a case of the legal profession intervening again with the Scottish Executive and interfering in areas of reforms for the public interest, just to retain their money making capabilities via a monopolistic legal services market ?

Is it not time to do something good for the public interest regarding the legal services market in Scotland, Mr Salmond ? rather than allow it to be run & maintained by the legal profession itself to make money and control the public's access to justice ?

Following article from the Scotsman newspaper :

http://thescotsman.scotsman.com/index.cfm?id=1144372007

Does Which? know what it is asking?
JENNIFER VEITCH

ACCESS to justice would come under "serious threat" from deregulation of the Scottish legal services market, as proposed by the Which? supercomplaint to the OFT, the Faculty of Advocates has warned.

Which?, the UK's largest consumer body, wants the OFT to recommend the removal of current restrictions, including those on non-legal ownership of firms and access to advocates, arguing that existing business structures and working practices restrict consumer choice and may be inflating prices.

Which? also wants an independent Scottish Legal Services Board to be established, to either oversee regulation of solicitors and advocates, or take regulation out of the hands of the Faculty of Advocates and the Law Society altogether. In its official response the faculty argues that Which? failed to show the legal services market in Scotland is "significantly harming" consumers. Its response warns the consumer body has not grasped that introducing so-called Tesco law would undermine the future of smaller firms throughout Scotland.

"Externally owned practices would be likely to be interested principally in the relatively straightforward transaction which can be 'commoditised'," the response states. "They would be unlikely to be interested in intractable or difficult cases, which professional firms currently handle. They would, in particular, be unlikely to be interested in such matters in relatively remote or sparsely populated parts of the country."

In an interview with The Scotsman, Roy Martin QC, the dean of the faculty, says the supercomplaint appeared to be trying to transpose English reforms proposed by the Legal Services Bill, possibly out of a desire for a uniform regulatory system across the UK.

"The supercomplaint openly promotes the creation of a Scottish Legal Services Board, which as far as can be seen would be identical to the one being created south of the Border with the same regulatory powers and functions," he says.

"In essence our position is that it is not appropriate, because of a number of factors, simply to translate the arrangements which are passing through Parliament in Westminster directly into Scotland. It may be said that the purpose of the supercomplaint is no more than to try to create a uniform regulatory regime throughout the UK for no reason other than regulatory consistency.

"Given the distinctive characteristics of Scotland and the Scottish legal profession, the desire for regulatory consistency would certainly not be a justification for the changes which they suggest."

Martin says that firms of solicitors, and the advocates that they instruct on behalf of their clients, are already providing access to justice "as efficiently as they can", considering Scotland's geography.

"It is interesting that the supercomplaint almost entirely focuses on transactional type business, such as conveyancing, rather than acknowledging that many of the services provided by the legal profession throughout Scotland are related to a whole range of needs, such as criminal court representation, civil court representation, family disputes, and custody of children," he says. "The fact that these things are done differently in Scotland and in the interests of justice ought to be done differently is a reason why we should not simply copy the regulatory arrangements which may be found to be appropriate in England and Wales."

The Faculty has also questioned whether the supercomplaint - made under the terms of the Enterprise Act 2002 - should be calling for changes to regulation that would require primary legislation to be passed by the Scottish Parliament. Its response also suggests that any action made by the OFT as a result of the supercomplaint "may not be lawful", as Which? has not fulfilled the requirements set out by section 11 of the act.

Martin adds that changes to the working practices of advocates would need to be considered by the Lord President, who has a role in regulating the public office of advocates.

In its response to the supercomplaint, the Law Society has also called for no action to be taken by the OFT. However, its position is complicated by the fact that some larger firms support the introduction of alternative business structures - if only to ensure they can have a level playing field with their English counterparts.

"The society is keenly aware that there are a number of interests which must be carefully balanced, including access to justice, competition in the legal services market and consumer protection," says the Law Society's chief executive, Douglas Mill. "There are a number of different proposals and business models currently under discussion, and the society is actively raising the debate to ensure that whatever changes are made to legislation, these competing interests are taken into account. The society is consulting with the solicitors' profession to gain their views of the Bill before the Westminster Parliament which will apply to England and Wales. It held a successful conference in London with its members based there to spark the debate and gain important feedback."

A major conference on alternative business structures is planned in Edinburgh on 28 September, and the society says it is also keen to see work by the Executive to build on the findings of last year's Research Working Group report, which recommended there should be no intervention in the market.

Mill adds: "The working group concluded that that overall the evidence backed the case for non-intervention in a market which is balanced by supply and demand. It is disappointing that Which? has produced a document which has no evidential base and contains fundamental errors, and which does not contribute in a meaningful way to the debate on such an important topic as the legal services market in Scotland. The society believes that the OFT should take no action on the supercomplaint."

If the OFT does decide to take action, however, then the society has called for research to be commissioned, to identify how the legal services market operates in Scotland, bearing in mind "the impact upon consumers" of the proposals set out in the super-complaint. A spokesman for the OFT says it is required to respond to the supercomplaint from Which? by 31 July, but he adds that he is unable to comment further.

Law Society Chief Douglas Mill accused of "scaremongering" over proposed reforms to legal services in Scotland

It will be a cold day in hell when 'Clementi style' reforms to open up the legal services market are implemented in Scotland, if Douglas Mill has his wicked way with the current SNP controlled Scottish Executive who may lack the will of tackling & reforming the legal system & judiciary as was displayed by the Labour controlled Executive.

The SNP after attaing power in the May 2007 Holyrood Elections, then seemed to dither and change their minds slightly on implementing reforms to the legal services market here.

Today, both Scotland's major newspapers carry alternative stories on the impending implementation of at least some kind of reform to the way Scotland's solicitors handle their business, the Scotsman as ever opting for the legal profession's point of view, this time against the Which? "supercomplaint" made to the OFT over an alleged monopoly" on legal services in Scotland, while the Herald newspaper treads a more neutral & informative path, backed up with a rather strong view from the head of the Law Society of England & Wales, who believes Douglas Mill is trying to scare us all over Clementi - or as some call it - "Tesco Law".

Well, there's nothing to be scared about - that is if the reforms are handled properly .. but with Douglas Mill's finger on the button over at the Law Society's Headquarters at Drumsheugh Gardens, is it possible at all we will get a balanced approach to the issue of opening up markets to legal services in Scotland or are we to be plunged yet again into a solicitor v client attitude, which many within the profession now believe has contributed to the all time low public perception of Scotland's solicitors, ranking them among the likes of rapists & muggers.

Acceptance of these reforms may bring many advantages to the legal profession in Scotland rather than adopting a negative stance such as is being trumpted by the Dean of Faculty & Douglas Mill in the Scotsman version of this story ... ultimately, shouldn't it be the profession which decides the future of itself, rather than a couple of egos ?

You can read more about the Which? "supercomplaint" which has Douglas Mill & the Dean in a spin over in today's Scotsman here here and the article written by giving Messrs. Mill & Martin's well known views against opening the legal markets, in the Scotsman here

Law Society chief accused of scaremongering over reforms

IAN FRASER July 23 2007 (The Herald)

The chief executive of the Law Society of England and Wales has attacked Scotland's lawyers for being "unjustifiably negative" in their stance on the Clementi reforms currently passing through Parliament, and accused his Scottish counterpart of "scaremongering".

The Law Society of Scotland is against the Clementi reforms, claiming they would enable criminal gangs to own law firms and use them as money-laundering vehicles.

But in an interview with The Herald, Des Hudson, who became the Law Society's chief executive in September 2006, said the proposed reforms would include a number of specific safeguards to protect the integrity of the profession, including a "fit to own" test to bar the entry of criminal elements.

Hudson said: "There are plenty of comprehensive provisions within the Legal Services Bill to control against that (law firms coming under the ownership of criminals). You can have statutory provisions on the fitness and suitability of anyone seeking to own a firm, such as you already have with newspapers I'm afraid that I find the arguments of the Law Society of Scotland unpersuasive."

Asked if he felt that Law Society of Scotland chief executive Douglas Mill was "scaremongering" by whipping up fears that law firms would become vehicles for underworld gangs, Hudson replied: "Yes".

But he added: "I'm sure that Douglas Mill is acting in accordance with the policy of the Law Society of Scotland We respect their right to make up their own minds about this."

The Legal Services Bill, expected to be enacted this December, will usher in a radical deregulation of the legal profession, permitting solicitors' firms in England and Wales to go into business with other professionals such as barristers and accountants, to have external shareholders and to float on the stock market. Due to take effect in 2010, the reforms have been welcomed in England and Wales, not least because they will enable the partners in law firms to finance expansion.

In Scotland, however, the reforms look unlikely to see the light of day, partly because of opposition from the Law Society of Scotland and a lack of appetite at the Scottish Executive.

The Edinburgh-based lawyers' professional body's suggestion that style reforms would permit law firms to come under the ownership of criminal gangs has caused the latest spat between the two professional bodies for solicitors north and south of the border.

English counterpart says arguments against Clementi proposals are ‘unpersuasive’

In an interview published in a law journal last week, Mill warned: "There hasn't been any consideration given to how these people are regulated or whether they are even regulatable. (It) could end up like the Liberian flag on your merchant shipping: We don't do health and safety here'."

He later told The Herald: "The Law Society of England & Wales is no longer a regulator and now concentrates on representing the interests of its members. We are a regulator and our fear is that in the drive to open up the legal services market, there has been scant regard given to the regulatory aspect.

"We are not opposed to change but, as the Scottish profession's regulatory body, the Society must take into account the wider public interest and we are obliged to ensure that any changes to the way legal firms operate continue to provide the same protections that members of the public currently have.

"We have been part of the debate on alternative business structures and the proposals put forward by Sir David Clementi since its earliest days. There are a number of different proposals and business models currently under discussion and we want to ensure that whatever changes are made to legislation, these competing interests are taken into account.

"The Society is also consulting with the profession to gain solicitors' views on the Legal Services Bill and is actively encouraging debate among our members."

However, some Scottish lawyers belief failure to embrace Clementi will lead to a brain drain' south. One senior Scottish lawyer said that, if such a mass migration did happen, it would "effectively bankrupt the Law Society of Scotland", as the professional body is dependent on the subscriptions from large corporate law firms and the thousands of lawyers they employ for a significant portion of its revenue.

Another fear expressed by Mill is that "Tesco Law" will decimate smaller solicitors' firms in high streets across Scotland, risking reduced access to justice.

Indeed commercial enterprises are already gearing up to capitalise on Clementi by offering commoditised legal services such as will-writing and conveyancing over the internet at significant discounts to the traditional high street law firms.

Hudson, a former chief executive of ICAS and SMG Publishing, said: "Tesco and the Co-op are already providing that sort of service. They've shown they have no need for either Clementi or McClementi to do that. I suspect this means the border is going to be porous irrespective of the protectiveness of the Law Society of Scotland's stance on that."

Alistair Morris, chief executive of Fife-based law firm Pagan Osbourne, said the commoditisation of certain areas of the law is already happening and he urged the Scottish Executive to introduce Clementi reforms, to rid Scots' law of its "anachronistic culture".

The Legal Services Bill is already having an impact on the Law Society of England and Wales even before it has entered the statute list. In anticipation, it has divided itself into three separate bodies. The Leamington Spa-based Legal Complaints Service handles complaints against solicitors, a body whose role is expected to be assumed by the new Statutory Office of Legal Complaints after 2010.

The Solicitors' Regulation Authority has taken over responsibility for regulating, setting standards and disciplining solicitors. And the Law Society proper has now shrunk to being the representative body for solicitors - effectively a trade union rather than a regulator.

In May 2007, the consumers' organisation Which? asked the Office of Fair Trading to investigate the Scottish legal profession's restrictions on business structures and access.

In its complaint, Which? said: "We are of the view that, subject to the necessary safeguards being established, a similar regulatory arrangement can be devised for Scotland to allow for non-lawyer entry to the Scottish legal services market.

"We are of the opinion that third-party involvement in this market is central to ensuring that the competitiveness of the market is maintained in the long term."

The OFT says it expects to issue a response within the next 10 days.

Land Reform Act in focus as crofting community attempt 'hostile' buyout

A crofting community is in the process of attempting a 'hostile' buyout of Lord Strathnaver's 6,422-acre Skerray Estate in Sutherland, using the Land Reform Act (Scotland) 2003

A slight hitch for the crofters, reports the Scotsman newspaper, is that the owner, Lord Strathnaver, son of the Countess of Sutherland, "has said he would resist any sale and believes the community would be better served under the existing ownership."

Community buy-outs of land in Scotland have previously been achieved more or less, with the agreement of the landowners involved. However, the Land Reform Act does indeed allow a "hostile" take-over of crofting land, whether or not the owner wishes to sell, if there is sufficient support among residents.

The days of Lord Strathnaver's Lairdship may well be coming to an end as many other lairds have found out if previous examples are anything to go by.

Matching a client's right to own land versus the rights of tenants to exercise control over land they rent is a thorny issue, and ultimately not one to generate public sympathy for landowners - particularly those who have been known to use well known law forms to bully tenants into submission or have their plans delayed indefinitely by somewhat underhanded techniques.

Despite some scare stories in the media, mostly all has went well with community buyouts of land under the Land Reform Act, so embracing the future & dealing with it, rather than clinging to the past may be a good place to start.

The people versus Lord Strathnaver

JOHN ROSS (The Scotsman)

IT SOUNDS like no contest. On the one hand, a small crofting community who want to buy the land on which they live; on the other, one of Scotland's best-known landowners who doesn't want to sell.

A few years ago that would have been the end of the matter. But the 91-strong population on the Skerray Estate in Sutherland may use land reform legislation to force a sale.

The residents, 55 of whom are involved in crofting, are working towards a community purchase of the 6,422-acre estate on a rocky promontory between Tongue and Bettyhill.

But Lord Strathnaver, son of the Countess of Sutherland, has said he would resist any sale and believes the community would be better served under the existing ownership.

So far, community buy-outs in Scotland have been achieved with the agreement of the landowner. But part of the Scottish Executive's flagship Land Reform Act allows a "hostile" take-over of crofting land, whether or not the owner wishes to sell, if there is sufficient support among residents.

Skerray Estate consists of 11 scattered townships and two islands. The Skerray Community Ownership Trust (SCOT) has been investigating self ownership and a feasibility study has suggested ways for the community to generate income.

Philip Taylor, a member of SCOT, said: "We are at the beginning of a long-term process. No one has attempted a hostile buyout in Scotland so far and the technicalities can be difficult.

"Lord Strathnaver has indicated he doesn't want to sell and we have not heard anything to the contrary. We will approach the estate again and ask them about a purchase."

Lord Strathnaver could not be contacted yesterday and no one at Sutherland Estates was available for comment.

But the feasibility study by economist Steve Westbrook said: "In a meeting with our consultancy team, Lord Strathnaver made it clear that Sutherland Estates would resist selling the land - having an attachment to the area and believing that residents would be served better through continued ownership by Sutherland Estates than through a community purchase.

"This opposition to a community purchase would need to be taken into account by the community in deciding how to move forward - although strong backing from the community for a purchase might possibly influence Sutherland Estates' stance."

He adds: "The purchase of the estate should stimulate economic and social activity to the benefit of the community.

"Past outward migration from Sutherland shows the need for people to be at the heart of area development and have access to resources, including land. For Skerray to thrive, the area needs to retain, attract and nurture able and motivated people, enjoying a good standard of living in a strengthened community."

His report says two-fifths of Skerray is aged over 60 and a lack of affordable housing is a barrier to keeping young people or encouraging others to move in. It suggests fishing, walking and other outdoor activities could be developed, along with eco-tourism.

Income could also be derived from a small-scale wind farm.

Cash for Honours Investigation closed - no prosecution but lessons to be learned

As the Scotsman reports, "IT TOOK 16 months, cost £1 million, unearthed 6,300 documents, led to four arrests and the interviews of 136 people including the then prime minister.But the prospect of charges being brought in the cash-for-honours affair was dashed in just one statement.The Crown Prosecution Service (CPS) defused the row that had rocked the foundations of Westminster's party funding system with two words: "Insufficient evidence"

Go here to read the CPS statement, and here to read the Metropolitan Police Statement.

After all the 'leaks' from the investigation a few had hoped for prosecutions but, as expected by many familiar with the workings of the law as it is currently on these matters - there was ultimately not enough evidence to bring a prosecution .. and even if there was, would it have been in the national interest to do so ?

Being able to question a policy when it appears somewhat at odds with the law is easy, but being part of that same culture, and having a few skeletons in the cupboard when shouting the odds against such things, tends to limit one's credibility as some have pointed out in the claims & counter claims on this affair.

Life goes on, and some people can at least be satisfied the public know a lot more about what goes on in the honours system now and how much it costs to get a peerage, than they did before SNP MP Angus Neil filed his complaint ...

Perhaps the outcome of the Cash for Honours investigation will ultimately be of benefit and has given the SNP themselves, a little more experience of issues of injustice in this case, & other areas of the legal system. Doubtless valuable lessons for the future can be learned by those who began this investigation - on how to better handle such investigations & inquiries into political scandals and what issues to pay attention to more closer to home.

And finally, solicitors, campaigners & readers alike, before you ruin your eyes reading the weekend press on frvolous debate over 'Cash for Honours', go out and buy "Harry Potter & the Deathly Hallows" instead and have a good read at that. You know its the right thing to do in this slightly crazy world !

'Insufficient evidence' ends investigation into cash-for-honours affair

GERRI PEEV POLITICAL CORRESPONDENT (Scotsman)

IT TOOK 16 months, cost £1 million, unearthed 6,300 documents, led to four arrests and the interviews of 136 people including the then prime minister.

But the prospect of charges being brought in the cash-for-honours affair was dashed in just one statement.

The Crown Prosecution Service (CPS) defused the row that had rocked the foundations of Westminster's party funding system with two words: "Insufficient evidence".

Allegations of leaks had dogged the investigation for more than a year - so it was with some irony that the CPS's decision was first reported 12 hours before Carmen Dowd, the head of its Serious Crimes Division, had a chance to make a brief appearance before the cameras.

She concluded there was "insufficient evidence to provide a realistic prospect of conviction against any individual for any offence in relation to this matter".

The investigation had overshadowed the final year of Tony Blair's premiership and arguably helped the Scottish National Party bring Labour's 50-year reign over Scotland to an end.

It also shook the establishment out of its complacency over party funding, forcing leading members to seek a way to distance themselves from the wealthy financiers who bankrolled politics.

The decision was met with relief by all those implicated - not least Mr Blair, who said he was "very pleased" that no-one would face trial.

He had become the first serving prime minister to be quizzed by police.

All those concerned had been put through a "terrible, even traumatic time," Mr Blair said.

Lord Levy, Mr Blair's chief fundraiser and one of three arrested in the investigation, told reporters he started the day with champagne. But by mid-morning, the relief began to wear off to be replaced with frustration.

He stopped short of criticising police, but hit out at a series of leaks from the inquiry which he branded "misleading, factually inaccurate and personally damaging".

Ruth Turner, the Downing Street "gatekeeper" who left No10 to continue working alongside Mr Blair and who was another one of the three arrested in the probe, said: "Although I was confident I had done nothing wrong, it has been a very stressful time for me and my family."

While the Blair team was largely relieved, the entire row was inadvertently sparked by Labour supporters.

It was a senior MP's private joke with opposition parties - suggesting that without party donors, the House of Lords would be empty - that sounded the alarm for one inexperienced MP.

The indiscretion was seized on by Angus MacNeil, the SNP MP for Na h-Eileanan an Iar, who was also incensed by Geoff Hoon, then Commons Leader, shrugging his shoulders when confronted with the allegations.

Mr MacNeil's researcher, Ann Harvey, then dug out an obscure piece of legislation that was still on the statute books: the 1925 Honours (Prevention of Abuses) Act.

A letter was fired off to Scotland Yard by the new MP, without much expectation by anyone at Westminster.

But a seed had been planted by one of the party's key supporters just a few days earlier.

Chai Patel, head of the Priory rehabilitation clinics, had protested to the Lords Appointments Committee - which vets peers - that his nomination for a peerage had been blocked.

It transpired that he had loaned the Labour party £1.5 million.

Two other wealthy donors had also had their peerages stopped.

That revelation led to Jack Dromey, Labour's treasurer, saying he did not know anything about loans made by wealthy businessmen to the party.

It appeared that the deals had been brokered directly between No 10 and the donors.

The simmering scandal was brought to boiling point when John Yates, assistant commissioner of the Metropolitan Police, declared he would indeed investigate the complaint.

It reached new heights when Mr Yates arrested his first suspect less than a month after the MP had written to him.

Des Smith, a former headmaster and adviser on city academies to the government, had been caught by a tabloid trap, saying donations to the controversial programme could lead to an honour.

The other man arrested in the investigation, biotech entrepreneur Sir Christopher Evans, was furious yesterday, accusing an unnamed Serious Fraud Office official of a dirty tricks campaign.

Sir Christopher, who was arrested as police looked into a £1 million loan he made to Labour in 2005, accused the SFO member of making "a completely untrue, malicious" allegation to police that he was expecting a peerage in return.

Amid the relief came fury from Labour. Lord Foulkes, who is a Labour MSP, said it was "astonishing" that the police had "fallen for an SNP stunt".

He added: "I think some apologies are now due to some people who have suffered extensively over the last 16 months."

But perhaps most furious was Mr Yates himself. He made no apologies for the length of the inquiry, hinting that he blamed obfuscation and stalling from some witnesses for the delays.

The row has also re-ignited the debate over Lords reform.
Politicians and police furious over CPS decision

THE cash for honours row raged on last night, despite the decision by the Crown Prosecution Service that no one would face criminal charges.

There was fury from Labour and those implicated in the police investigation over how the inquiry had been dragged out. Police have also made clear their displeasure at the controversial decision.

Carmen Dowd, head of the CPS specialist crime division, concluded: "Having considered all of the evidence in this case I have decided that there is insufficient evidence to provide a realistic prospect of conviction against any individual for any offence in relation to this matter."

But Glyn Smith, chairman of the Metropolitan Police branch of the Police Federation, said the public should "judge for themselves" whether charges could have been brought.

Officers are prepared to hand over the documents acquired during the 16-month investigation to MPs on the Public Administration Select Committee. The committee suspended their own probe into honours so as not to prejudice the police inquiry and will meet on Tuesday to decide its next course of action.

Metropolitan Police Assistant Commissioner John Yates defended the time his investigation had taken, saying: "It is a search for the truth." He also appeared to blame the delays on some of the individuals quizzed.

"With any investigation you go where the evidence takes you and during the course of the investigation it became necessary to consider whether there had been a conspiracy to pervert the course of justice. This investigation would have been concluded much earlier if this latter aspect had not arisen," he added.

Angus MacNeil, the SNP MP who made the original complaint to police, said the senior officer had the right to be furious that his hard work had amounted to nothing.

He added: "It is extraordinary that this investigation has gone on for so long without any charges. There is much circumstantial evidence that people were raking in funds in exchange for the expectation of honours and indeed that such transactions were being kept secret."

Those arrested in the investigation are furious at the length of time and style of the inquiry and the way their reputations had been inevitably trashed.

• PARTY funding has been ratcheted to the top of the political agenda by the cash-for-honours row, with the main leaders agreeing there is a need to move towards some form of state funding.

A review led by Sir Hayden Philips, a senior civil servant, gained fresh impetus in its search for a solution after party co-operation stalled over whether Labour should be allowed to continue to rely financially on single unions.

David Cameron, the Conservative leader, said the way politics was financed now had to change. " It is not healthy," he said.

Mr Cameron said there should be limits on party donations from businesses, trade unions and individuals. "We need to make sure that not so much money is wasted and we need to cut the cost of politics," he added.

The Prime Minister's official spokesman also pointed out the parties were all still in talks with Sir Hayden about how to take funding forward. Sir Hayden wants parties to reach agreement by next month.

Any move to state funding is opposed by the SNP, however, which insists that taxpayers should not be forced to pick up the tab.

Cash for Honours Scandal