Holyrood challenges Court of Session over right to ask lay speakers to declare offences

By JOHN FORSYTH
Published on 23/07/2012 00:00

New rules this month giving lay representatives the right to speak in the Court of Session have generated a challenge from the Scottish Parliament to the court’s Rules Council.

The Legal Services (Scotland) Act of September 2011 conferred power on the Court to “make rules to permit a lay representative, when appearing at a hearing in any category of cause along with a party to the cause, to make oral submissions to the court on the party’s behalf”.

In the following months the separate Rules Councils of the Court of Session and Sheriff Courts discussed how to devise rules that would give effect to the new right of an individual who is not a solicitor or advocate or holder of any other right of audience to speak in support of a party litigant on points of law or make submissions to the court but not examine or cross examine a witness.

Most of the discussion concentrated on ensuring that lay representation could not become an alternative profession by spelling out that he or she should not be paid a fee or even recover expenses, though the Sheriff Court Rules Council did show interest in allowing a company to pay an upfront fee to a lay representative. The Court of Session Rules Council dismissed that idea out of hand.

However, there was also protracted discussion about “the character” of prospective lay representatives and the Act of Sederunt 189 that came into force on 9 July includes form 12B.2, by which the applicant has to confirm that she or he is not a vexatious litigant, will respect confidentiality of documents, has no financial interest but, crucially, must declare past criminal convictions.

That is the point that has come under fire from the Holyrood Subordinate Legislation Committee. At its meeting on 26 June, the Committee pointed out bluntly that the Rules Council is not entitled to override primary legislation on the rehabilitation of offenders which establishes various time frames under which offences become spent and do not have to be declared.

The committee, convened by Nigel Don, has referred the matter to the Holyrood Justice 
Committee.

“This raises an important constitutional point about the respective functions of the parliament and the rule-making authority,” said Don. “The committee was quite simply not convinced that the courts have the power to bring in a substantive provision like this, that modifies the rights and protections of individuals and disapplies primary legislation.”

Duncan Murray, chief executive of Morton Fraser and member of the Court of Session Rules Council, said: “My personal view is that it is important to protect party litigants from individuals who may offer their services but are not of good standing. The rules as drafted don’t automatically rule out anyone with previous convictions but allow the court discretion.”

The Lord President’s Office is said to be considering whether it will revise the two-week-old rules and the Sheriff Court Rules Council is holding back publication of its regulation of lay representatives until the standoff is resolved.