Undue Influence : Freedom of Information reveals how Law Society used Scottish Government Ministers to reduce complaints levy for crooked lawyers

Communities Safety Minister Fergus Ewing demanded ‘independent’ law complaints quango give solicitors a break on complaints charges. DOCUMENTS REVEALED under Freedom of Information legislation of a meeting chaired by the Scottish Government’s Community Safety Minister Fergus Ewing between the Scottish Legal Complaints Commission & Law Society of Scotland over arguments relating to ongoing court cases between the two regulators and the costs of the contentious Penman Levy ‘complaints levy’, will leave no one in any doubt about the close relationship between the Law Society of Scotland & the Scottish Government on issues the legal profession demand are raised in its favour.

I reported on Community Safety Minister Fergus Ewing’s intervention on behalf of the Law Society to reduce the complaints levy in an earlier article during April, here : ‘Ministerial Interference’ as Fergus Ewing demands SLCC’s £1.5m reserves be handed to lawyers after Law Society lobbied Scottish Government, however the recent release of the actual minutes of the meeting now reveal the extent of Mr Ewing’s involvement which resonates throughout the two pages as being clearly biased in favour of the Law Society’s stance over complaints levies and court challenges against the Scottish Legal Complaints Commission over complaints appeals.

Documents reveal meeting demanded by the Law Society secured Ministerial interference to reduce complaints levy. Community Safety Minister Fergus Ewing, himself a former solicitor & member of the Law Society of Scotland opened the meeting, held on 22 April at the Scottish Parliament, allegedly claiming its purpose was not to interfere with the duties of the SLCC or the Law Society, despite the Law Society having itself called for the meeting, which was attended by the Society’s current Chief Executive, Lorna Jack & Director of Regulation Philip Yelland. However, insiders today revealed the only issue the Law Society wanted to discuss (appearing as item 8 in the minutes) was the complaints levy and the massive £1.5 million surplus held by the Scottish Legal Complaints Commission, which the Law Society had asked the Scottish Government to consider while seeking a reduction in complaints levy charges for solicitors.

Item 8 of the released minutes read : “The Law Society confirmed that the points they had made previously about ‘over provision’ of reserves stood. The Scottish Government was concerned that the SLCC were being over cautious on risk, particularly given that most of the risk will be substantially mitigated in the course of the year.”

Scottish Government had received ‘numerous representations from the Law Society on the complaints levy. A Scottish Government insider today confirmed the Law Society had made numerous representations, both written & ‘in person’ to the Scottish Government over the society’s desire to further reduce the complaints levy, and on issues relating to the society’s court of session challenges against the Scottish Legal Complaints Commission. However he said “there was about as much chance of getting hold of these documents in an FOI request as the Edinburgh Trams project finishing on time”

A legal insider, studying the terms of the minutes, disputed the Community Safety Minister’s version of why the meeting had taken place and his attempt to distance himself from appearing to intervene on the part of one regulator against another.

He went on to point out Mr Ewing’s claim of not wishing to interfere in the running of the Scottish Legal Complaints Commission was very misleading, to the point of being dishonest, considering Mr Ewing had already sent a letter to the SLCC’s Chair, Jane Irvine, threatening there would be Ministerial intervention if the SLCC did not accede to the Minister’s wishes on the complaints levy & reserves, wishes which coincided with those of the Law Society of Scotland.

Tale of a Ministerial Threat : Community Safety Fergus Ewing demanded reduction of complaints levy as Law Society had requested. The letter from Mr Ewing to the Scottish Legal Complaints Commission, where insiders recently branded the letter ‘Ministerial intervention on behalf of the Law Society’, stated : “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 therefore invite the Commission to give early and serious consideration to reducing the proposed amount of the annual general levy …. 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.”

There have been successive reductions in the SLCC’s complaints levy since the ‘independent’, scandal-hit law complaints quango was created in 2007 as a result of the passage of the Legal Profession & Legal Aid (Scotland) Act 2007 – legislation which was passed after a collective campaign by many individuals, consumer organisations & campaign groups to reform widespread corruption in regulation of Scotland's legal profession.

The complaints levy initially stood at £409 in 2008, a levy charged to each solicitor to fund the Scottish Legal Complaints Commission’s work investigating complaints against ‘crooked lawyers’. However, after a year of bickering between the SLCC & Law Society, the SLCC’s complaints levy was reduced dramatically in 2009 from £409 to £275, and the £200 charge for mediation between solicitors (who were involved in complaints) & their clients, dropped.

Lorna Jack, Chief Executive of the Law Society. The Law Society welcomed Fergus Ewing’s intervention to reduce the complaints levy, issuing a press release a few days after the meeting took place, apparently rubbing in their ‘Ministerial assisted’ victory over the SLCC. Lorna Jack, Chief Executive of the Law Society of Scotland, announced : “We are delighted the representations made by the Society have resulted in a reduction in the levy on our solicitors. The Society did make strong representations to the Scottish Legal Complaints Commission on behalf of the profession.”

Scottish Legal Complaints Commission were branded ‘liars’ by Law Society over Court actions. Ms Jack went on to chastise the Scottish Legal Complaints Commission over what she viewed as ‘necessary’ court challenges against complaints decisions : “Whilst we are pleased that they have listened to some of our points, we are extremely disappointed that the SLCC has used the excuse of the unknown outcome of appeals currently at the Court of Session as a reason for keeping their budget and reserves so high. These appeals were necessary and indeed the only course of action open to the Law Society to clarify a difference of understanding of the law which the Society and SLCC have over whether certain complaints are conduct complaints that the Society can investigate.”

Law Society ended Press Release with ‘veiled threat’. Ms Jack ended her press release with a veiled threat against the independent SLCC, inferring the Law Society would be back in the fight to get its way further on complaints levies : “We will continue to talk to the SLCC about how they can work within the legislation and improve their structures and systems to avoid this type of issue arising in future at an unfair cost to the profession. The Society has a right to challenge the SLCC’s budget, as one of the professional bodies representing the legal profession which pays for its running costs, and we think the SLCC have failed to take a proportionate approach to the risk involved.”

A senior official from one of Scotland’s consumer organisations said today the terms of the meeting, taken in context with the earlier letter from the Community Safety Minister to Jane Irvine, the SLCC’s Chair, made for a venue of intimidation likely to produce “a favourable result for the Law Society of Scotland, which is in fact, what has occurred”.

He said : “I think consumers would rightly view it is entirely inappropriate for the Scottish Government, acting on behalf of the Law Society of Scotland to intervene with the independent Scottish Legal Complaints Commission, where there is without doubt a clear bias in favour of the Law Society who had approached the Minister for help in seeking a reduction in the complaints levy & the amount held by the SLCC in its reserves.”

He continued : “The Scottish Government, let alone a Government Minister would never even consider offering to chair meetings between consumers who are having problems with either the SLCC or the Law Society where either or both regulators have failed to properly investigate complaints made against Scottish solicitors.”

“Mr Ewing’s interference has effectively killed the SLCC’s public credibility and put the Law Society on notice it can call in Scottish Ministers at any time to get its own way. A poor example for Mr Ewing to set considering the long history of problems with regulation of the legal profession.”

A Justice Department insider, asked today if the FOI released minutes truly reflected the tone of the meeting & what had all been discussed, replied with a wry smile, saying : "What do you think ?”

Well, I know what I think … and coincidentally of course, the SLCC did agree to freeze the complaints levy, as well as draw down on their reserves, just as the Law Society of Scotland had demanded the willing Scottish Government Minister ensure took place;

So, as easily as a gamekeeper may call his Jack Russell Terrier to heel before ordering it down a rabbit hole, details of meetings demanded by the Law Society over financial benefits for its member solicitors indisputably show Scottish Government Ministers will apparently follow the society’s wishes to the letter, in this case, where the Law Society had demanded further reductions in the annual complaints levy charged to all solicitors which funds the Scottish Legal Complaints Commission.

What chance is there of independent, transparent regulation of the legal profession in Scotland, when the Law Society can call in Scottish Ministers to bully any regulator into speedy subjugation ? No chance at all … and consumer protection against inadequate legal services ? in Scotland .. such an idea is a myth under the current administration.