Call for radical Access to Justice (Scotland) Bill

The new Access to Justice Committee (AJC) of the Law Society of Scotland is calling upon members of the Scottish Parliament to support the introduction of a radical Access to Justice (Scotland) Bill as a top priority in the next session of the Scottish Parliament in 2011.

The AJC agreed at its first meeting in Glasgow yesterday to produce, as a matter of urgency, a detailed framework for a comprehensive and far-reaching Access to Justice (Scotland) Bill, which could immediately address a number of major deficiencies in accessing Scotland's systems of civil and criminal justice.

The Committee also agreed to identify, tackle and address the emerging risks to access to justice in Scotland which would flow from the announced cuts to welfare benefit spending by the UK Government, the forthcoming public sector cuts by the Scottish Government, and from the forthcoming decision of the UK Supreme Court in the case of Cadder v. Her Majesty's Advocate.

The Committee Convener Mike Dailly said:
"Access to civil or criminal justice in Scotland is a constitutional and human right. We believe that Scotland's legal system is a public service, not a commodity, which should deliver that right in the same way that schools deliver education, or the NHS delivers a health service. The courts must therefore be free at the point of use and should never be used as a means of generating income for the state"

"Accordingly, we believe that citizens in Scotland are entitled to access the appropriate legal advice, assistance, and representation, whenever their liberty, life, wellbeing, children, home, work, environment, and community are significantly threatened. We hold these principles to be self-evident".

"We have resolved to identify the key components for a wide ranging, and comprehensive Access to Justice Bill in Scotland, capable of meeting the needs of Scotland's people, its communities, and its legal system in the 21st Century".

"We would urge all MSPs and all Scottish political parties to embrace the need for a radical Access to Justice (Scotland) Bill in the next Parliamentary session, and to have regard to our analysis of the emerging risks to access to justice in Scotland in light of UK and Scottish Government welfare benefit and public sector cuts".

Committee Membership: in addition to the Committee Convener, the legal practitioner members are Patrick McGuire, solicitor advocate with Thompsons, whose career has been seeking compensation for victims of accidents, injury and disease; John McGovern, solicitor advocate with McGovern Solicitors and current President of the Glasgow Bar Association; Robert Sutherland, advocate and convener of the Scottish Legal Action Group; and Frances McCartney, solicitor and board member of the Environmental Law Centre Scotland. The lay members are Dave Moxham, Deputy General Secretary, Scottish Trades Union Congress; Danny Phillips, board member of Child Poverty Action Group; Geraldine Cotter, manager of Money Matters Advice Centre; Bob Hay of Glasgow University Student Representative Council, who has worked with a range of voluntary agencies and organisations on a consultancy basis; and Phyllis Craig, a senior welfare rights officer at Clydeside Action on Asbestos. Full biographical details of members are available here.

Law Society of Scotland's new Access to Justice Committee to meet

The Law Society of Scotland's new Access to Justice Committee meets tomorrow for the first time (Thursday, 2 September 2010) in Glasgow. 

Committee Convener, Mike Dailly said:  "It's a great honour to have been appointed by the Council of the Law Society of Scotland to convene its new Access to Justice Committee.  We've brought together an outstanding group of Scottish access to justice champions, which includes solicitors, solicitor-advocates, advocates, anti-poverty and social justice campaigners, trade unionists, welfare rights specialists, and experts in rights based advocacy and community empowerment.

"This is a committee of the 'coalface', members with direct experience of the myriad of access to justice problems that many citizens face every day in Scotland. We're going to take a fresh approach. Our job is to identify and demand radical improvements so that Scotland's system of civil and criminal justice is fit for its people, its communities, and the 21st Century".

President of the Law Society visits GLC new offices

President of the Law Society of Scotland, Jamie Millar, received a warm welcome and tour of Govan Law Centre's new Orkney Street offices today. Mr Millar congratulated Govan Law Centre, its staff and board members, on securing the newly refurbished premises at the Orkney Street Enterprise Centre (OSEC). 

The facilities at OSEC provide the local community with access to free legal advice and representation, prevention of homelessness services, money and financial inclusion advice, help and support to get back to work or into further education, and access to social work services.

Mr Millar was in Govan to discuss access to justice issues in Scotland, with the Society's new Access to Justice Committee convener, GLC's Mike Dailly. The Society's new Access to Justice Committee is scheduled to have its first meeting later this week.

GLC's Iain Nisbet to address Belfast conference on education law

GLC's Education Law Unit Director, Iain Nisbet, solicitor and partner, will address a legal conference on educational additional support needs in Belfast this week (Thursday 26 August 2010).

The conference is being organised by the Special Educational Needs Advice Centre (SENAC) in Northern Ireland, in conjunction with the Queen’s University Centre for Human Rights.

Iain's presentation will include an examination of the Scottish experience of the Education (Additional Support for Learning) (Scotland) Act 2004.  Other conference contributors include Brian Lamb OBE, Philippa Stobbs and Frances Ross-Watt.  Further details of the Belfast conference are available online here.

Justice Secretary refuses to consider access to justice problems

Scotland’s Cabinet Secretary for Justice has refused to review the problems thrown up in Scottish bank charge cases, and denied there is any problem in Scots being able to take their bank to court to try and recover unfair overdraft charges. Recently, Scots using the accessible and consumer friendly small claims system have had their claims remitted to the ordinary sheriff court, at the request of UK banks, where legal expenses are potentially unlimited.

Following access to justice problems identified in the case of Walls v. Santander UK plc  the Shadow Cabinet Secretary for Justice, Richard Baker MSP, raised concerns over access to justice in such cases with Kenny MacAskill MSP. In a written response, Mr MacAskill said ‘I do not accept the argument that ordinary citizens in Scotland are denied basic rights to access justice’ and refuted any suggestion that there was a problem for Scots trying to recover unfair bank charges through the small claims court.

Mr MacAskill endorsed the sheriff’s conclusion in Walls v. Santander, that Scotland’s current civil court structure and legal aid system provided ‘sufficient’ access to justice from a human rights perspective. Mrs Walls has since lodged an application with the European Court of Human Rights in Strasbourg. Mr MacAskill also stated that he was unable to review the small claims rules due to his ongoing consideration of Lord Gill’s Scottish Civil Court Review.

GLC's Mike Dailly said: “The Justice Secretary’s denial is a mantra which makes no sense. It displays an arrogance and failure to grasp some fundamental facts and principles. UK banks are successfully moving small claim bank charge cases to the ordinary sheriff court, and Scottish consumers are faced with dropping their claims for fear of expenses, or trying to get legal aid if they can – and even then, possibly having to pay a contribution to the legal aid board bigger than their claim”.

“What is particularly puzzling is that Mr. MacAskill refuses to accept any concern whatsoever about access to justice, but our client (Mrs Walls) would have had to drop her claim, had we not been able to get her case sisted pending an application to the European Court of Human Rights".

"The whole point of the small claims court is to provide access to justice for citizens without fear of cost: a remedy which is proportionate in cost to the level of the monetary dispute. But that fair principle of proportionality is being knocked out of the ball park by the current practice of UK banks in bank charge litigation. We don’t have class actions in Scotland, so individual consumers are finding it impractical or impossible to challenge bank charges in court”.

“Kenny MacAskill could easily fix this problem by changing the rules on expenses. We’ve suggested the cap on small claims expenses could travel with the case where it is remitted to the ordinary sheriff court. However, the Justice Secretary says he cannot even look at this issue because he is considering the Scottish Civil Courts Review. That is a non-excuse, which sends a very clear message to the 1 in 5 Scots hit with overdraft charges: the Justice Secretary isn’t interested”.

Consumer bank charges in China and the UK

China Radio International (CRI) reports from Beijing that commercial banks in some parts of China have recently raised the fees charged to customers for withdrawing cash from other banks ATM's. 

An online survey conducted by Chinese website Sina.com showed that almost 90 percent of respondents think the increased charge is exploitative, and will have a negative impact on what is known as the cross-bank withdrawal business.

Now China's Banking Regulatory Commission says that to improve customer service it's considering revising the banks service pricing regulations.  The issue has also raised concerns about the way banks make their profits and how they charge customers for their services.

CRI's current affairs show, People in the Know, speaks to Professor Zhao Xijun of the School of Finance at Renmin University for the Chinese experience of bank charges, and Govan Law Centre's Mike Dailly for the UK perspective of bank charges.

Today's show is available online here.  It can also be heard on smart phones here.

Sheriff reduces property factors bill by 55%

In the case of Walker Sandford Property Management Ltd v. Mushtaq, Sheriff Ross ruled today that a property factor was not entitled to charge a Glasgow consumer monthly interest at 2.5% (equating to 30% APR) as the consumer had never agreed to the factor's contractual terms and conditions.  

Terms and conditions needed to be expressly or impliedly agreed at the outset of the arrangement or adopted by the parties' clear, specific, unequivocal actions. Simply adding the terms and conditions to an invoice was never a way of having conditions adopted. Accordingly, the factor was only entitled to payment in terms of the title deeds, and no interest was chargeable at all in terms of the title deeds.  Such charges therefore fell to be deleted.

Sheriff Ross also reduced the sum charged for second and subsequent monthly reminder/demand letters by one-third from £12 to £8.  Overall the sum sued of £2,678.55, was reduced to £1,213.13, resulting in a 55% reduction in the customer's bill. The action was dismissed with no expenses due to or by either party. The defender was represented by GLC's Iain Nisbet, solicitor and partner, and the pursuer's by Messrs Peacock Johnson Solicitors.

In cases highlighted by BBC Scotland last year, Sheriff Rae expressed concern at the amount of penalties levied by Walker Sandford Property Management Ltd, and in the end the company agreed to drop all penalty charges and interest.  In the past, Walker Sandford had previously issued remider/demand letters on a weekly basis, but now do so on a monthly basis for customers in arrears.