Good morning, ladies and gentlemen. I hope that you understand that the petition is about not just me but a gross imbalance in the law regarding all persons in Scotland who find themselves being a party litigant—that is, someone who has to represent themselves in court. We are lucky enough to live in a democratic society in which that is possible.
As I said in my petition, in “A guide to bringing a case to The Supreme Court”, paragraph 1.8, which is headed “Appeals from the Court of Session in Scotland”, states that, although
“permission to appeal is not required from an interlocutor of the Inner House of the Court of Session”,
the appeal
“must be signed by two Scottish counsel”.
That is where the flaw is.
As we all know, a party litigant is a person who, for whatever reason, such as a lack of funds for a solicitor, represents themselves. Nowadays, people are more likely to represent themselves because of a lack of funding for solicitors from the Scottish Legal Aid Board. I myself have seen solicitors demonstrating about the issue. We will have a situation in which more and more people will be forced to represent themselves in court.
When a party litigant represents themselves in the Court of Session, loses their case, then appeals and loses that appeal—I learned through a freedom of information request that there are no statistics on how many party litigants have won their case in the Court of Session—they are also then denied the right to appeal to the Supreme Court, which, according to the European Court of Human Rights, is deemed to be the highest court in the United Kingdom. On the Court’s website, which is www.echr.coe.int, frequently asked question 26 states that an individual must have taken their case to the highest court in the land before they can put it to the European Court of Human Rights.
The fact is that people are being denied their human rights; in this case, the relevant article is article 6, on equality of arms. Everyone deserves a fair hearing. We should be on a level playing field, not divided between the have and have-nots in society. Party litigants lose their right to appeal because of paragraph 1.8, which states that two Scottish counsel must sign the appeal, while the experience of all party litigants is that they cannot approach Scottish counsel in their chambers or in the Court of Session, and certainly not at the advocates library. The only way to approach counsel is through a solicitor, which is where the even larger difficulty lies.
The solicitor has only 42 days to read a case that might have been going on for many years. They then need to speak to two counsel and have them read the case, print their opinion and apply for an appeal to the Supreme Court. Although in theory that process can happen, in practice it cannot and does not happen. Legal aid has to be applied for, which takes time. If legal aid is granted, the solicitor can then contact counsel—I said “if” it is granted; the committee should please take into consideration the cuts to legal aid.
The real problem is that solicitors are wary of taking on a case at such a late stage. As part of my research, I obtained a list of 38 solicitors via Law Society of Scotland recommendations. Having telephoned all 38 with the scenario I have just described, I found that not one of them was willing to take on such a Herculean task. The reasons cited by many of them included conflict of interests, lack of funding, too many hurdles, and, last but not least, the fact that the pursuer in the appeal has been a party litigant, in relation to which the legalities are a minefield that a solicitor would be reluctant to enter. It is not the solicitors’ fault; it is the fault of paragraph 1.8, which denies party litigants their rights.
In paragraph 6 of its response to the consultation on the Courts Reform (Scotland) Bill, the Faculty of Advocates states that it knows that party litigants have difficulty with obtaining signatures from counsel. It goes on to say:
“It has also become increasingly burdensome. The number of such cases has been increasing: between 2005 and 2010 the Faculty received five such requests from party litigants”.
That is five requests in five years. “Burdensome” is defined as heavy, onerous, troublesome and hard to deal with, so we can deduce that the faculty does not think highly of party litigants.
I am still waiting for a response from the Faculty of Advocates to my freedom of information request about how many party litigants it has helped to appeal to the Supreme Court, but I have also contacted the Supreme Court and I already know the answer. Not one party litigant from Scotland has ever been granted the right to appeal to the Supreme Court, so they cannot fulfil the criteria for making an appeal to the European Court of Human Rights.
Paragraph 1.8 denies a party litigant the right to appeal to the Supreme Court and to appeal to the European Court of Human Rights. That is a blatant human rights issue. The theory is there but, as I say, the practicalities deny a party litigant the right of appeal. Everyone must be treated equally, with fairness and respect. The current situation contradicts the Human Rights Act 1998 severely. This is a flaw in Scottish justice. The system that is in place is not fit for purpose. It places insurmountable barriers in the way of the party litigant. That happens in any civil case, and civil appeals show that party litigants have fewer rights. The Scottish Government has clearly recognised that there is a problem. Mr MacAskill mentions the issue in the Courts Reform (Scotland) Bill, but nowhere do the two words “party litigant” appear in the bill.
I believe that my petition could serve to support any further planned measures to bring relief in such cases, so I feel that it is in the interests of justice and of all party litigants for the committee to consider it.