New rules that allow lay representatives to speak on behalf of party litigants in sheriff courts came into force last week.
“Lay representative” is the term chosen in Scotland as the equivalent of “McKenzie Friend”, as used in most English-speaking common law jurisdictions.
A statutory instrument giving effect to the Act of Sederunt (Sheriff Court Rules) (Lay Representation) 2013 was laid before the Scottish Parliament on 7 March, the final stage of a process that began in 2009 with a petition to the Scottish Parliament by Stuart Mackenzie seeking to introduce McKenzie Friends to Scotland. The Gill review of the civil courts also foresaw a role for McKenzie Friends.
The new rules allow a party litigant, to ask the sheriff to allow a named individual to make oral submissions to the court on his or her behalf. The request can be made on the day of the hearing. The lay representative will have to sign a form confirming that he or she will not be paid, has no interest in the case and listing any previous convictions. Previous convictions will not necessarily prevent someone from acting as a lay representative.
Unlike the Court of Session, which has recognised lay representatives since January, there is no requirement to enrol a motion and pay a £40 fee. Permission will be given at the discretion of the sheriff on the basis that the lay representative will be of assistance to the court. Lawyers or others with a right of audience may not act as a lay representative.
Lauren Wood, of Citizens Advice Scotland, says: “The broadening of lay representation is a positive development, particularly given the changes that are being made to legal aid, and the uncertainty about what its future will be. Against that background, anything that improves people’s access to justice has to be a good thing.”
It is anticipated that lay representatives will be of most assistance initially in small claims courts where neither party is legally aided. The rules do not permit the lay representative to examine or cross examine witnesses. That will remain with the party litigant.
Ian Maxwell, national manager of Families Need Fathers Scotland, has already acted as a lay representative. He says: “This change doesn’t mean that non-lawyers will have unrestricted scope to act in court, but it will help in situations where people representing themselves find it difficult to speak up because of language difficulty, lack of confidence, strong emotions or lack of understanding of the court process and terminology. They will be allowed to attend family court hearings which are closed to the public, but have to agree to keep the details of the case and court papers confidential.”