Fifty Shades of Lay

First published in The Journal Online,  the publication of the Law Society of Scotland.

New rules on lay representation introduced this month, taken with the other schemes that continue in force, have resulted in an excessively complicated picture that should be simplified

The introduction of s 127 of the Legal Services (Scotland) Act 2010 into law should have been a time for celebration: it aimed to introduce wider rights of lay representation into the sheriff court and, therefore, wider access to justice.

Although this objective has been achieved to some extent, we should be cautious with our celebrations. We now have a system of lay representation and support in Scotland which is no longer clear and, with tongue partially in cheek, it could be said litigants would be wise to take legal advice before deciding on which rules they use.

The problem is there now exists a multitude of different types of lay representation in Scotland’s sheriff courts, not including those rules that provide for lay supports, and in some circumstances representatives and supports will now have to choose between the types of representation or support they wish to provide. This requires a knowledge of the system that the majority will not have.

Scope for confusion

The idea behind s 127, which amended s 32 of the Sheriff Courts (Scotland) Act 1971, was that it allowed the Court of Session to introduce a new type of lay representation into the sheriff court, and widen access to justice, by allowing representatives to appear in any category of civil action on behalf of a party and make oral submissions on their behalf. Such rules have now been implemented and have been in force since 4 April 2013.

These new rules are unlike previous lay representation rules in two ways. First, they allow the representation to occur in any category of civil action, whereas in the past such representation was only allowed in specific categories of actions; but secondly, the type of representation allowed is only to make oral submissions, whereas lay representatives previously were permitted, on the whole, to do for clients whatever they could do for themselves.

Prior to the new rules being implemented, the existing rules allowing lay representation related to actions under the Heritable Securities (Scotland) Act 1894, the Conveyancing and Feudal Reform (Scotland) Act 1970, the Consumer Credit Act 1974, the Bankruptcy (Scotland) Act 1985, the Debtors (Scotland) Act 1987, the Children (Scotland) Act 1995, the Debt Arrangement and Attachment (Scotland) Act 2002, the Bankruptcy and Diligence Etc (Scotland) Act 2007, and summary cause and small claim actions.

The new provisions now run parallel with these rules and also the rules for lay supports, which means that lay persons now have a choice between the rules they wish to use. What rules they choose will have a material effect on what they can and cannot do. For example, if someone asks the court to allow them to act as a lay support, this does not allow them to make oral submissions; whereas if someone applies to be a lay representative under the new provisions, they are not allowed to question witnesses, but they can do this if they apply to represent under existing small claim rules.

In addition to this, the tests that apply for sheriffs to decide whether someone should be allowed to act as a lay person vary depending on the type of representation or support that is applied for. Under the new rules, lay representatives are only allowed where this would assist the sheriff with their consideration of the case, whereas under older rules, such as in relation to small claims, the sheriff can only refuse where they believe the person is not suitable or indeed is not authorised to act as a representative. In relation to lay support, an individual can only act if the sheriff considers it would be in the interests of the efficient administration of justice to allow it.

Under the new rules, there are also specific provisions which stipulate that a condition of the representation is that the representative does not receive any direct or indirect financial remuneration from the case, whereas under the older and co-existing rules for lay representation, the provisions are silent on this.

Likewise, under the new rules the representative must make a written application to appear, but under other lay representation or support rules, no such requirement exists in relation to the sheriff court.

Rethink needed

Clearly, in such a situation only experienced in-court advisers will understand what their rights to act are as lay representatives; only the most experienced will understand what provisions they may wish to apply under.

On reviewing the rules we now have, it is hard not to think that the spirit of allowing lay persons into court has been lost. The idea was to increase access and assist the court in their consideration of the case when qualified legal representation was not available. The rules however are inaccessible, confusing and exist in parallel with existing provisions. They create obstacles by applying different tests and designating different functions to different roles, even though those roles go by the same name.

Without being overly critical about what was undoubtedly a genuine attempt to improve the ability of litigants to obtain representation and support in court, it has to be asked, is it not time that a rethink of this whole area of law was undertaken?

It must be possible simply to have two different types of lay persons: lay supports,with the right to make oral submissions and act in any category of civil action; and lay representatives, who can do for the litigant what they can do for themselves. This latter role could be performed by specialist advisers provided through advice agencies and trade unions, with a prerequisite that they must have sufficient professional indemnity insurance.

Scotland has been slow to warm to allowing lay persons into our courts: it took us nearly 40 years to introduce our own McKenzie Friends. Our rules have been developed in an ad hoc manner by both the UK and Scottish Parliaments, arguably because the courts have been slow to do it themselves using existing powers. It is now time to create a system that is genuinely accessible to all lay persons.