Top judge putting Scotland 'in dark ages' with reform block

Published on Wednesday 24 February 2010 21:46

SCOTLAND'S top judge has been accused of putting the Scottish legal system "back into the dark ages" in an escalating row over the help afforded to party litigants in civil court cases.

Campaigner Stewart Mackenzie claims Lord Hamilton is obstructing legal reform by placing unreasonable conditions on the use of "McKenzie friends" in Scotland's courts.

Mr Mackenzie has lodged a petition in the Scottish parliament calling for the introduction of a system that allows people representing themselves in civil court actions to nominate a lay helper to help them take notes, organise papers or prompt them with questions for witnesses.

The system, named after a litigant in an 1970 English divorce case, is widely operated in courts in England, Canada and New Zealand, but its official introduction has so far been resisted by the judiciary in Scotland's courts.

In November, Scotland's most senior judge, Lord Hamilton, wrote to the Scottish Parliament's petitions committee insisting legislation to introduce McKenzie friends was not necessary, as Scottish judges already had the power to allow the use of lay helpers.

But court officials later denied this was the case, and a letter submitted to the petitions committee this week suggested the Lord President had performed a U-turn, as he indicated the rules in Scottish courts would now be amended to allow McKenzie friends.

Petitioner Stewart McKenzie, of Perthshire, has now hit out at the judge's proposals, criticising the conditions Lord Hamilton intends to place on the operation of the new system. Under the changes to be agreed at the Court of Session Rules Council on 10 May, McKenzie friends will be forced to sign a certificate outlining their "relevant experience" in court as well as declaring whether they are related to the party litigant.

Mr Mackenzie told The Scotsman: "There are a couple of serious issues that mean Lord Hamilton is going to put us back into the dark ages with what he proposes.

"A McKenzie friend could be your brother, your sister, your granny, it could be a pal who is a plumber. None of them have relevant experience, so goodness knows where this comes from."

He went on: "The other thing he says is a McKenzie friend must state whether he or she is related to the litigant. You might have your brother, your sister, your auntie or your granny helping you. Relationship to the litigant has got nothing to do with it."

Mr Mackenzie, who has now been asked to provide his reaction to Lord Hamilton's proposals, added: "Scotland has a history of obstructing any changes in law."

Murdo Fraser MSP, who sits on the petitions committee, said: "It is difficult to see why the court would have an interest in what the experience is of the lay assistant, or whether or not they were related to the litigant. I would want to know what Lord Hamilton's reasoning was for stipulating these particular requirements."

A spokesman for the Lord President refused to comment.