Monday, April 19, 2010

‘Ministerial Interference’ as Fergus Ewing demands SLCC’s £1.5m reserves be handed to lawyers after Law Society lobbied Scottish Government

Fergus Ewing low resCommunity Safety Minister Fergus Ewing tells SLCC : Give lawyers a £1.5m refund or else we take away your independence. FERGUS EWING the Scottish Government's Minister for Community Safety has demanded the independent Scottish Legal Complaints Commission use its massive £1.5m surplus to lower the annual complaints levy which solicitors have to pay each year to cover the Commission’s costs of investigating complaints made by clients against their lawyers. The move has surprised many, as under the terms of the Legal Profession and Legal Aid (Scotland) Act 2007, the SLCC is independent of Government and the legal profession.

Law Society of ScotlandLaw Society of Scotland lobbied Scottish Government to reduce complaint levy which funds investigations against ‘crooked lawyers’. The unprecedented move by Mr Ewing, comes after the Scottish Government was lobbied directly by the Law Society of Scotland to intervene in the budget levy dispute with the SLCC, forcing a quick, quiet reduction of the complaints levy, after law campaigners and MSPs began to question why the Scottish Government had not asked the SLCC to repay its massive £2m formation costs to the public purse.

Mr Ewing’s direct intervention on behalf of the legal profession, coming just a few weeks after I reported Mr Ewing had announced plans for Ministerial appointments to the Law Society of Scotland’s Council had been withdrawn after some more lobbying from the Law Society, is being widely seen as nothing short of Ministerial interference in an ‘independent’ body, particularly after Mr Ewing apparently issued a threat to review Ministerial powers over the Scottish Legal Complaints Commission if it does not comply with the Law Society of Scotland’s desire to see the complaints levy reduced.

Communities Minister Fergus Ewing to Scottish Legal Complaints Commission 22 Feb 2010 Complaints levy  page 1Community Safety Fergus Ewing writes to Scottish Legal Complaints Commission, demands reduction of complaints levy for lawyers. The letter from Mr Ewing to the SLCC, recently released, states : “I note that you have used some of your reserves to offset any increase in the general levy and that is commendable, but I am strongly of the view that this does not go far enough. I understand that this financial year you have generated income of around £2.3m and that your predicted costs of £2.9m are now forecast to be £2.6m. The shortfall between income and expenditure will be met by your contingency fund should that remain untouched and in effect your budget will balance this year. However the surplus finds generated during your first 9 months of operation recorded as £1.5m are likely to remain untouched.”

Mr Ewing continued : “Whilst I recognise that during your initial year of operation the workload and consequently expenditure was difficult to predict, having built up an significant reserve fund in this financial year, it is essential that the Commission takes full account of this reserve in determining the amount of annual general levy and the complaints levy that is reasonably sufficient to meet its expenditure for the next financial year. When the Commission has existing reserves, it must ensure that, taking one financial year with another, the amount of the proposed general levy and complaints levy is reasonably sufficient to meet its expenditure, in particular, any estimated shortfall including for contingencies.”

Communities Minister Fergus Ewing to Scottish Legal Complaints Commission 22 Feb 2010 Complaints levy  page 2Community Safety Minister Fergus Ewing threatens a review of Ministerial powers over the SLCC if it refuses to lower the complaints levy. Fergus Ewing continued in his letter to the SLCC’s Chair, Jane Irvine : “I do not think it is sufficient to use these reserves to merely off-set an assumed increase in the proposed amount of the annual general levy for next year. I therefore invite the Commission to give early and serious consideration to reducing the proposed amount of the annual general levy and the complaints levy to ensure that these do not, taking one financial year with another, exceed what is reasonably sufficient to meet its expenditure.“I appreciate that this is important for the SLCC to manage their financial risks and hold some contingency funding and I know that officials here would be happy to discuss how this could be achieved in ways which do no to rely on large reserves. I appreciate also that, as the legislation stands, the levy is a matter for the SLCC to determine, and that Ministers have no powers to order the SLCC to take any particular action in respect of the levy. It is for the SLCC itself to ensure that the level of charge is justifiable, in the light of the demands on it. I trust that you will exercise that discretion appropriately, having regard to the views expressed by consultees.”

Fergus Ewing ended his letter with an apparent threat : “I would wish to give fair notice that Ministers will review the situation following the setting of this year’s levies to see whether any change in the respective powers of Ministers and the Commission is desirable.”

A legal insider indicated the Law Society had decided to push the matter after they had become concerned calls for the SLCC to repay its millions to taxpayers might gain ground, and scupper the chance of solicitors getting a refund on the complaints levy.

He said : "Officials at the Law Society were furious some were suggesting the SLCC repay their £1.8 million start up costs met by the taxpayer and saw a real possibility this idea may gain ground particularly since the Commission is sitting on a £1.5 million cash reserve in a recession where the daily talk is of more cuts to public services.

It has also emerged there are at least four cases in the Court of Session where the Law Society of Scotland are taking legal action against the Scottish Legal Complaints Commission over the Society’s remaining duties to regulate conduct complaints. A legal insider today alleged the Law Society’s lobbying of the Scottish Government under the circumstances of it pursuing the SLCC in the courts “is entirely inappropriate”.

He said : “The Law Society calling in the Scottish Government to intimidate the Scottish Legal Complaints Commission over the complaints levy may well be a tactic connected with the Law Society’s court actions against the Commission, or an intent to disturb the SLCC’s regulatory function investigating complaints against the legal profession, a function which we all are very well aware the Law Society wants back within its grip.”

He continued : “In the light of this incident, there should be a full investigation of Mr Ewing’s conduct and the disproportionate lobbying access the Law Society of Scotland and legal profession appear to have with the Scottish Government. It cannot be that a Minister gets involved to such a degree in what are decisions the law says should be taken independently and without influence from Government”

Jane IrvineSLCC Chair, Jane Irvine. Jane Irvine, Chair of the Scottish Legal Complaints Commission gave reaction to Communities Minister Fergus Ewing’s intervention on behalf of the Law Society. Commenting on the SLCC budget consultation responses, Jane Irvine said: “In February, we received responses from the Faculty of Advocates, the Law Society of Scotland and comments from the Scottish Government Minister for Community Safety, Fergus Ewing.The Minister’s letter repeated some of the points raised by the Law Society of Scotland with regard to the SLCC reducing its reserves in order to reduce the Solicitors’ Levy. “The SLCC Board has, however, raised concerns at the Minister’s inference to the level of control the Scottish Government may wish to exert over the operation of the SLCC, should our Board decide against reducing the Solicitors’ Levy.”

slcc_logoThe Scottish Legal Complaints Commission are facing four cases ongoing in the Court of Session where the Law Society refuse to investigate certain conduct issues. Jane Irvine continued: “The SLCC has endeavoured to clarify for the Minister the rationale behind our reserves policy, explaining that reserves are for unforeseen events and reflect what the SLCC Board considers to be the risks facing the Commission. Every new complaints body faces an early tranche of appeals over the first 3-5 years of its operation as powers are tested, and currently we are dealing with four Court of Session appeals, lodged by the Law Society of Scotland, under which the Law Society infers that they do not wish to investigate these particular conduct issues. We must have sufficient reserves to defend legal actions and to be in a position to balance the strength of the legal profession as it raises appeals against the lesser strength of consumers, who will raise fewer appeals. It is simply not feasible for the SLCC to be acting in a defensive manner when making decisions.“

Jane Irvine continued: “We already know the SLCC is facing significant legal costs and, depending on the outcome of these appeals, we may need to change how the SLCC operates. “This could mean a review of our processes and procedures resulting in the need to substantially increase the size of our Gateway Team which is currently served by ten members of staff.“

The media release from the SLCC concluded by stating : “The SLCC Board will meet later this month to discuss the Minister’s comments regarding the independence of the SLCC from the Scottish Government and the legal profession, the level of reserves held, the implications of reducing the solicitors’ levy, our ability to meet the costs of appeals and our ability to fulfil our obligations to consumers should the Court decision result in changes to how we operate.”

You can read the Response from the Law Society of Scotland (PDF 542 KB) and the Response from the Faculty of Advocates (PDF 72.3 KB) to the SLCC’s Budget for 2010-2011 : SLCC Budget levy consultations along with the letter of Ministerial interference from The Scottish Government Minister for Community Safety, Fergus Ewing MSP, (PDF 506KB)

james_kellyJames Kelly MSP, (Labour) Glasgow Rutherglen. James Kelly MSP, a member of the Scottish Parliament’s Justice Committee queried whether the SLCC could justify its huge £1.5m budget surplus under current financial conditions. He said : "At a time when budgets are under pressure it is correct that questions are being asked as to why the SLCC need to retain a surplus of £1.5m. If the SLCC are unable to justify this surplus then consideration needs to be given to the steps required to bring the monies back within the remit of the general budget."

Asked for reaction on Communities Minister Mr Ewing’s intervention on behalf of the Law Society of Scotland, a Scottish Government spokeswoman said: "The Minister is entitled to make his views known to the Scottish Legal Complaints Commission (SLCC), and any future changes which might be considered to ensure the SLCC operates efficiently and does not impose unnecessary burdens on the legal profession would ultimately be for Parliament to consider."

An official from a Consumer organisation condemned Mr Ewing’s intrvention on behalf of the Law Society of Scotland while the Scottish Government had refused to help members of the public who had lodged complaints against ‘crooked lawyers’.

She said : “What we now have here is a Scottish Government Minister saying he prefers that lawyers get a multi million pound refund rather than maintain dwindling public services. If Mr Ewing wishes to put lawyers before the Scottish public he should go back to being a lawyer instead of remaining in Government.”

Clearly the conduct of the Communities Minister Mr Ewing amounts to what many will view as Ministerial lobbying on behalf of the legal profession, coupled with a veiled threat of action if the aims of the lobbying (to reduce the complaints levy for solicitors) are not met.

In view of what has taken place, and the information with regard to the court cases involving the SLCC & Law Society of Scotland, which taken together, directly impacts on the ability of the SLCC, an independent regulator which was created by legislation designed to protect consumers from poor legal services, I support calls for a full investigation into the amount of lobbying power & access to politicians the Law Society of Scotland seem to enjoy – lobbying power which is now clearly not in the public interest for the Law Society, or legal profession, to retain …

41 comments:

Anonymous said...

Good report Mr Cherbi and your sources are spot on,Fergus Ewing should go back to being a lawyer and leave the rest of us alone!

Anonymous said...

"The Minister is entitled to make his views known to the Scottish Legal Complaints Commission (SLCC), and any future changes which might be considered to ensure the SLCC operates efficiently and does not impose unnecessary burdens on the legal profession would ultimately be for Parliament to consider."

Fine.How about the public's view on this ?
Handing over 1.5million to lawyers in the middle of a recession is NOT ON.

That's My View Mr Ewing.

Anonymous said...

Hi Peter, the last thing the public needs, is for an increase in their Gateway Teams numbers, as this will only allow the investigaters to do less, because this will create more obstructive communication towards genuine complainers?

A new broom is the answer and not one with a crooked shaft either!

Keep up the good work

Anonymous said...

This is quite disgraceful.

First Mr Ewing abandons the idea of government oversight of the Judiciary and leaves them to form their own 'new', 'independent' Court Service ; now the Scottish taxpayer is left to whistle for a refund of any part of the £2 million pound setup costs while any and all monies go into the pockets of the legal profession.

No surprise to learn Mr Ewing is a lawyer.

Peter Cherbi said...

# Anonymous @ 16.01

Thanks .. and in the light of his intervention with the SLCC .. I would agree !

Of course, the SLCC only have themselves to blame for this funding issue ... if they had been more sensible and arranged to pay back, even by installements, the millions in public money used to create the Commission, there would have been much less of a surplus, and much more of a moral leg for the regulator to stand on when attempting to argue why it should maintain such a sizeable surplus.

Clearly the argument of maintaining such funds in the event of legal challenges indicates the organisation is suffering from a lack of power and lack of Government backing ...

# Anonymous @ 16.10

I agree. Nearly 70 nursing positions could be created with that money ... much more use to the community at large than simply handing the surplus back to the legal profession ...

# Anonymous @ 16.37

Indeed yes ...

# Anonymous @ 17.23

Clearly the current Scottish Government are out to kill off any idea of independent regulation of the legal profession ... and yes, no surprise that Mr Ewing, a lawyer himself is up for destroying what is left of the regulation reforms of the LPLA Act.

Anonymous said...

Looks like the Scotsman beat you to it this time Peter:
http://business.scotsman.com/legalissues/Fergus-Ewing-tells-complaints-body.6235750.jp

Fergus Ewing tells complaints body to lower lawyers' levy or face a 'review'

Published Date: 19 April 2010
By Christopher Mackie

A SCOTTISH minister threatened the independence of the Scottish Legal Complaints Commission after it refused to reduce the levy it charges for lawyers to fund its work, The Scotsman can reveal.

Fergus Ewing said he would "review" the relationship between ministers and the commission after this year's levy was set, issuing a threat that power could be shifted away from the body towards the Scottish Government should the commission not use its "discretion" to shape its budget appropriately.

Political opponents called on him to retract the threat immediately and his intervention was described as "concerning" by the SLCC, a body that reports to Parliament and has the legal right to independently set its own budget and levy structure.

It comes amid ongoing disquiet among solicitors over the level of influence Scottish ministers seek to wield over lawyers.

Last month, Mr Ewing was forced to withdraw controversial measures in the forthcoming Legal Services Bill that would have given ministers the power to step in and regulate law firms should ongoing legal reforms not produce a "suitable" regulator. The plans would have also permitted the Scottish Government to dictate the make-up of the Law Society's council, a move many lawyers found intolerable and one that has led to a growing schism within the profession, with the Law Society under pressure over its perceived close relationship with ministers.

The SLCC wants to retain a surplus of £1.5 million in its budget for next year amid uncertainty about the extent of its responsibilities that will be subject to test cases in the Court of Session.

The Law Society of Scotland is lobbying for that money to be used to drop the annual levy to solicitors, who pay between £90 and £275 a year to fund the SLCC's work. They have now been joined in their campaign by Mr Ewing, who appears to have acted after a request made by the Law Society. The society admits it lobbied Mr Ewing, but insists it has no power to direct the minister's behaviour.

SLCC chair Jane Irvine said: "The SLCC board has raised concerns at the minister's inference to the level of control the Scottish Government may wish to exert over the operation of the SLCC, should our board decide against reducing the levy."

John Lamont, the Tory community safety spokesman, called for the threat to be withdrawn.

And Julia Clarke, the Scottish spokeswoman for consumer body Which?, a body that campaigned for the SLCC to be set up, said she was concerned.

But a spokeswoman for the Scottish Government defended Mr Ewing's actions, and said: "The minister is entitled to make his views known to the SLCC, and any future changes which might be considered to ensure the SLCC operates efficiently and does not impose unnecessary burdens on the legal profession would ultimately be for Parliament to consider."

Peter Cherbi said...

# Anonymous @ 19.19

Yes, although I knew the story was coming, and as I ran the Masterman resignation exclusive last week I was content to see the "Fergus Ewing threatens the independence of the SLCC after lobbying by the Law Society" story get a wider airing in the Scotsman before I had a go at it.

Remember wider circulation is the key to informing the public, and in Scotland, that still means getting stories into the printed media ...

Anonymous said...

but you are behind the whole episode anyway so no surprise the slcc and ewing are at each other's throats

dont you ever fear for your life causing all these stooshies ?

Anonymous said...

This one could be filed under "Minister refused to listen to his advisers over what to say in letter".

Nice headline.Says it all really.

Anonymous said...

"Remember wider circulation is the key to informing the public, and in Scotland, that still means getting stories into the printed media"

A round of applause for common sense Peter.I really dont know why some newspaper doesn't come along and scoop you up with all these scandals you bring to light!

Keep up the good work!

Anonymous said...

I dont wish to appear ignorant but why is the Minister for Community Safety intervening in a subject clearly the domain of the Justice Secretary Kenny MacAskill.

Anonymous said...

I dont think the Minister is entitled to do anything of the sort suggested by the Spokeswoman for the Scottish Government.The SLCC,love it or hate it is supposed to be independent and free of Government meddling.
Mr Ewing has a lot to answer for.It is he who should resign.

Anonymous said...

Without a doubt a fine example of Ministerial interference however under the Alex Salmond dictatorship running Scotland dont expect too much be done about it.

Anonymous said...

A strong yet unconvincing statement from Jane Irvine.

Sorry I dont think the SLCC has much credibility and I think you are right on the money with your analysis.

The SLCC are themselves to blame for this mess.Their arrogance has allowed Ewing to come in on the side of the Law Society.

The Scotsman version of this contains a glaringly obvious quote of guilt from the Law Society, who said : "The society admits it lobbied Mr Ewing, but insists it has no power to direct the minister's behaviour"

Clearly that is a lie.The Law Society asked for Mr Ewing to step in and bully the SLCC and that is exactly what they got via the letter he wrote you have posted.

Perhaps the more worrying thing is that Mr Ewing's letter is so obviously the result of the Law Society's lobbying it must now be acceptable for Ministers in Scotland to be bought and paid for by the professions.

Expect more smoke & mirrors very soon.

Anonymous said...

She said : “What we now have here is a Scottish Government Minister saying he prefers that lawyers get a multi million pound refund rather than maintain dwindling public services. If Mr Ewing wishes to put lawyers before the Scottish public he should go back to being a lawyer instead of remaining in Government.”

First prize to your consumer lady and her comment.I think Fergus Ewing should do exactly that and go back to being a lawyer as he seems to love them so much.

Anonymous said...

Nothing short of Fergus Ewing's resignation to clear this up.Stinks to high heaven of political corruption and fat brown padded envelopes from the Law Society crooks

Anonymous said...

Little doubt now the SNP have totally destroyed the slcc's credibility although I'm sure that was their plan from the very start considering who they all appointed to it.

Anonymous said...

Where are the loudmouths from the GBA who were shouting at the same ministerial interference in the Legal Services Bill ?

or is ministerial interference fine when its on behalf of the profession but not on behalf of the public ?

Anonymous said...

Lawyers are controlling the policymaking process for their self protection and financial gain, a scandal.

Anonymous said...

How much did Ewing's intervention cost the Law Society I wonder ?

Free legal services forever or a firm & job waiting when the SNP finally get kicked out ?

Anonymous said...

Mike Dailly was shouting about the same ministerial interference so much Fergus Ewing gave him what he wanted
Now we have Ewing coming in on the side of the Law Society doing the same ministerial interference and probably he will get away with it again.

CORRUPTION RUNS SCOTLAND

Anonymous said...

The letter from Fergus Ewing states "we will arrange for this response to be published on our website" and by that he obviously means the Scottish Govt website.

Its not there Fergus.Did you just put that in as a bluff ?

Also what about the meeting with Irvine ? Did it go ahead and why is Ewing meeting with Irvine when it should be the Justice Secretary dealing with all this or is MacAskill being kept away from official business for some reason(s) ?

Anonymous said...

Yes Peter I agree with you there should be an investigation into how much lobbying power the Law Society has over our politicians especially with the evidence of Fergus Ewing overtly intervening with the slcc.

Keep up the good work !

Anonymous said...

Good to see the Scotsman getting in on the act but are they for or against the Law Society ?
Difficult to make out really.

FEEL THE POWER said...

You see this is how it works Mr Cherbi.
We the legal profession can call in any politician we like and they do as they are told.

Feel the power!

Anonymous said...

Mr Ewing will end up the President of the Law Society yet!

Anonymous said...

Looks like the SLCC are in need of a strong voice to save it.How about you join up and give Fergus & co a good lashing in defense of clients?

Anonymous said...

Odd the whole thing really.I wrote to Kenny MacAskill over an issue he said he couldn't become involved in as the body dealing with my case is independent from the Government.

However Fergus Ewing jumps straight in for the Law Society against a supposedly independent body and has no qualms about threatening them if they dont do as they are told.

Corruption definitely as far as I am concerned and Ewing should be made to resign along with those from the Law Society who put all this in motion.

Thanks to Peter we know all about it now.

Anonymous said...

revolting behaviour from Ewing I wont be voting snp thats for sure

Anonymous said...

Just out of interest what would be the process for investigating Fergus Ewing's conduct ?
Would it be Parliament or the Government itself ?

Anonymous said...

Lawyers are the largest lobby group in Parliament according to an English qc so its little surprise the same exists in Scotland.

Anonymous said...

What on earth is Mr Ewing, the Community Services Minister doing involving himself in an area outside his remit?

The answer is simple, he would not be acting as he has without the approval of those higher up whose cover has alredy been blown, namely Mr McAskill.

Anonymous said...

Good work Peter.Hope something more comes of this than the usual whitewash !

Anonymous said...

Big surprise (not) All the lawyers accused in the Davinci painting theft are off the hook !


http://news.bbc.co.uk/1/hi/scotland/south_of_scotland/8630172.stm
Five cleared over da Vinci plot
Clockwise from top left, Robert Graham, John Doyle, Marshall Ronald, David Boyce and Calum Jones
Clockwise from top left, Robert Graham, John Doyle, Marshall Ronald, David Boyce and Calum Jones all denied the charges

Five men accused of conspiring to extort £4.25m ($6.5m) for the safe return of a Leonardo da Vinci painting have been cleared.

The case was found not proven against Marshall Ronald, Robert Graham and John Doyle, all from Lancashire.

Glasgow solicitors Calum Jones and David Boyce were found not guilty.

The men were accused of seeking the funds for bringing back the Madonna of the Yarnwinder, which was stolen from a castle, near Dumfries, in 2003.

At the High Court in Edinburgh, all five men had denied the charges.

The offences were alleged to have taken place between July and October 2007.
Madonna of the Yarnwinder
The Leonardo painting was stolen from Drumlanrig Castle near Dumfries

The men were charged with plotting to extort the money for the return of the artwork, which had been taken from the Duke of Buccleuch's Drumlanrig Estate, north of Dumfries, four years earlier.

They were not accused of carrying out that raid.

A jury took eight hours to deliver its verdict after a trial lasting more than seven weeks.

During the trial the court heard details of an undercover police operation to recover the artwork.

Prosecutors praised their efforts, claiming the officers involved had "turned the tables" on the accused.

They said a video the men had produced showing the valuable painting alongside a copy of a newspaper was a "hallmark of kidnapping and extortion".

Those claims were dismissed by lawyers representing the accused.

They described the assertion that their clients were involved in a conspiracy as a "colourful tale" and a "mad idea" which was "wholly incredible".

IF ANYONE VALUES THEIR LEGAL BUSINESS AS WELL AS THEIR PAINTINGS THEY WILL STEER CLEAR OF SCOTTISH LAWYERS FOREVER !

Anonymous said...

The comment at 16:45

No surprise to me.Its Scottish lawyers we are talking about - they get away with murder so dont expect any court to convict one of stealing a little painting (allegedly) !

Anonymous said...

Very good write up and at least you gave both sides a fair hearing.
Mr Ewing certainly went out on a limb on this one so there must be a lot at stake.
Find out more about that proposed meeting and make sure you report on it soonish because people who matter in this debate are reading your blog.

Anonymous said...

Fergus overstepped the mark in his letter.If it were a normal Government he might pay the price but as its the Scottish rabble you can forget any slap on the wrist - they will just ignore the whole thing and talk about Robert Burns instead.

At least the SNP are doing one good thing - advising the English to vote for the Liberal Democrats.This should make a Conservative or Labour majority easier as the English wont let the SNP tell them who to vote for.

Carry on !

Anonymous said...

*cough cough* someone incapable of performing their duties hence second 'minister' brought in to speak *cough cough*

Anonymous said...

@12:19

d*unk ?

Anonymous said...

Mr Ewing is ever such a good landlord.You should check out more on that for a good tabloid headline..

Anonymous said...

I think the Minister was bought off by the Law Society.How else would they secure his intervention?
Politicians do NOTHING for free!