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Opinion: Judges back out of McKenzie Friend reforms, saying it is a matter for the Government
Date:1 MAR 2019
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Rebecca Ranson, of Maguire Family Law, discusses the response of the Lord Chief Justice and the Judicial Executive Board to the McKenzie Friends consultation.

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The Judiciary has finally responded to the well-backed McKenzie Friends reform consultation after 2 years of deliberation.

Consultation

“Reforming the courts’ approach to McKenzie Friends” was issued by the Judicial Executive Board (JEB) in February 2016 and aimed to help litigants in person navigate their way through the judicial system without the assistance of lawyers.

The consultation also requested changes to the court’s approach regarding unqualified individuals conducting litigation on behalf of litigants in person, and suggested that these people, known as McKenzie friends should be able to exercise a right of audience before the court.

10 questions were posed in the consultation, which was responded to by over 250 individuals. These questions included:

  • Do you agree that the term ‘McKenzie Friend’ should be replaced by a term that is more readily understandable and properly reflects the role in question? Please give your reasons for your answer.
  • Do you agree that the term ‘court supporter’ should replace McKenzie Friend? If not, what other term would you suggest? Please give your reasons for your answer.
  • Do you agree that the present Practice Guidance should be replaced with rules of court? Please give your reasons for your answer. Please also give any specific comments on the draft rules in Annex A.
  • Do you agree that such a notice should contain a Code of Conduct for McKenzie Friends, which the McKenzie Friend should verify that they understand and agree to abide by? Please give your reasons for your answer.
  • Irrespective of whether the Practice Guidance (2010) is to be revised or replaced by rules of court, do you agree that a Plain Language Guide for LIPs and McKenzie Friends be produced? Please give your reasons for your answer.
  • If a Plain Language Guide is produced, do you agree that a non-judicial body with expertise in drafting such Guides should produce it? Please give your reasons for your answer.

Summary of responses

The responses were fairly even regarding the potential name change for ‘McKenzie Friends’, however it was noted that previous attempts to change the name have failed, for example the perceived attempt to change the name to ‘unqualified legal adviser’ in R v Leicester Justices, ex. Parte Barrow [1991] 2 QB 260. That being said, a narrow majority of responders did feel that the term should be replaced with ‘court supporter’.

Many of the responses to the consultation highlighted the need for updated Practice Guidance on McKenzie Friends setting out the rules of court. The current guidance has not been reviewed or updated since 2010, when it was first issued.

The responses were strongly in favour of the introduction of a Plain Language Guide for LiPs and McKenzie Friends. They were also overwhelmingly supportive of the guide being produced by a non-judicial body for the assistance of LiPs. This was entirely agreed by the JEB.

Conclusions of the JEB

Once the vast number of consultation responses, had been considered, the JEB reached the following conclusion:

  • The growth and popularity of McKenzie Friends has shown a steady increase since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force – i.e. when legal aid was reduced and only provided to individuals in certain exceptional circumstances.
  • As the government has the overall impact of the legal aid cuts on its agenda already, the JEB has determined that the clear links between reliance on McKenzie Friends (particularly fee-charging ones) and legal aid mean that this issue should be dealt with by the government.
  • The JEB went on to say that it is for the government to consider what steps to put in place to assist litigants in person who do not have the financial means to instruct solicitors or barristers privately.
  • The role of the judiciary is to apply the law concerning the provision of legal assistance, the right to conduct litigation and rights of audience as per the Legal Services Act 2007, the common law and precedent

Despite determining that the funding cuts and subsequent difficulties faced by litigants in person should be addressed and remedied by the government, the JEB remain deeply concerned about McKenzie Friends and their role in the system.

McKenzie friends are generally unqualified, unregulated and uninsured individuals who provide professional ‘assistance’ to litigants in person.  They have no duties to uphold and no one to answer to; and they will have had little to no training on the law. Despite this, those who charge for their services still charge around £100 per hour.

Read the full consultation here:
https://www.judiciary.gov.uk/wp-content/uploads/2016/02/mf-consultation-paper-feb2016-1.pdf

The full responses are published here:
https://www.judiciary.uk/wp-content/uploads/2016/02/MF-Consultation-LCJ-Response-Final-Feb-2019.pdf

Rebecca Ranson, solicitor at Maquire Family Law

 


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