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LETTER FROM THE LORD PRESIDENT TO THE PUBLIC PETITIONS COMMITTEE
PE1247/Z LETTER FROM THE LORD PRESIDENT TO THE PUBLIC PETITIONS COMMITTEE IN RELATION TO PETITION PE 1247 (STEWART MACKENZIE) 19 February 2010 Franck David Esq Assistant Clerk to the Public Petitions Committee Scottish Parliament TG.01 Edinburgh EH99 1SP Dear Mr David CONSIDERATION OF PETITION PE 1247 I refer to your letter of 10 February 2010. Following my letter to you of 2 November, I asked two of my colleagues (being the judges responsible for administrative management in the Court of Session) to consider the matter of McKenzie Friends and to report back to me. In view of their report, I intend to bring forward for consideration at the next meeting of the Court of Session Rules Council (on 10 May) a draft of an Act of Sederunt amending the Rules of Court to give effect to the following policy: 1. To acknowledge the possibility of lay assistance to the extent of (a) providing moral support; (b) helping to manage court documents and other papers; (c) taking notes of proceedings; and (d) quietly advising the party litigant on (i) points of law and procedure; (ii) issues which the party litigant might wish to raise with the court; (iii) questions PE1247/Z which the party litigant might wish to ask witnesses. The lay assistant would be able to sit beside or behind the party litigant in court, as he or she wished, and accompany the party litigant at a hearing in chambers. The party litigant would be responsible for any expenses incurred by the lay assistant. 2. The lay assistant would not be able to act as the party litigant’s agent. He or she would have no authority to sign court documents. The lay assistant would have no right to address the court or examine witnesses. 3. There is a procedure whereby the party litigant informs the court of the intention that there should be such assistance and obtains the approval of the court of the person in question taking on the role. This is done by motion in the process which is intimated to the other party and which would normally be granted without a hearing if unopposed. 4. The party litigant would be entitled to communicate to the lay assistant information, including the court papers lodged in process, which otherwise he or she would not be entitled to see. Such papers may well be of a private and sensitive nature. There would therefore be a mechanism by which the lay assistant would acknowledge a duty of confidentiality and give an undertaking to use the information obtained from other persons in the process (whether parties or third party havers) solely for the purpose of the litigation. To enable the court to police the behaviour of a lay assistant and, in an extreme case, to exercise a sanction against him or her, the party litigant and the intended lay assistant should complete and sign a certificate to be lodged in process with the motion. 5. The certificate should (i) state the name and address of the intended lay assistant; (ii) give a brief summary of the lay assistant’s relevant experience and state whether he or she is related to the party litigant; (iii) confirm that the lay assistant has no interest in the case and is to receive no remuneration for his or her services in any form; and (iv) state the lay assistant’s understanding of the duty of confidentiality and his or her undertaking not to use any documents recovered in the process for any purpose other than the litigation. There would be an appropriate form containing the undertaking with boxes to be completed. 6. There would be a “presumption” in favour of allowing a party litigant to have a lay assistant. This would be achieved by providing that the PE1247/Z court should grant the motion unless it is satisfied that it would be contrary to the efficient administration of justice to do so. The court would have the power to revoke the permission if the lay assistant were to behave irresponsibly or were otherwise to impede the efficient administration of justice. That should assist to clarify the position in the Court of Session. Subject to the Council’s views, I would intend that the Court makes the Act of Sederunt in May and that it is brought into force in June. It remains my view that going any further and allowing a lay representative rights of audience in the Court of Session is a matter for primary legislation. I do not therefore propose to take any further action in relation to this, save to say that this is of course a matter about which the Civil Courts Review has made a recommendation and that the Scottish Government will no doubt adopt a position on that recommendation in due course. The burden of the matter in relation to the Sheriff Court lies with the Sheriff Court Rules Council. Different considerations may apply there, given that in certain circumstances it is already possible (by virtue of legislative intervention) for lay representatives to address the court. Nevertheless, I have made the Sheriff Court Rules Council aware of the action I am taking in relation to the Court of Session and I understand that the matter has been referred to one of their working groups for consideration in early course. I hope that these developments are sufficient for the Committee’s purposes. But I am of course happy to correspond further with the Committee if that would be helpful to it in its consideration of the matter.
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