Law Society ‘warns’ Scottish Parliament : Solicitors (Scotland) Act 1980 ‘should not be repealed’ by msps or Scottish Government

Unwanted reforms : Law Society's Michael Clancy wades into campaign to repeal laws which allow Law Society power to protect lawyers against complaints. THE LAW SOCIETY OF SCOTLAND’S Director of Law Reform, Michael Clancy has written to the Scottish Parliament’s Petitions Committee expressing Law Society disapproval over a public petition asking MSPs to repeal the much hated, much questioned, much misused & infamously anti-consumer Solicitors (Scotland) Act 1980, the Westminster enacted thirty year old legislation which allows Scottish solicitors to ‘look after their own’ by investigating complaints against their own colleagues.

The petition, Petition PE1388, originally filed as an e-petition at the Scottish Parliament by a Mr William Burns calls “on the Scottish Parliament to urge the Scottish Government to repeal the Solicitors (Scotland) Act 1980, end self-regulation, and remove the independence of the legal profession, bringing it onside with true democracy.”.

I reported on events surrounding the petition in an earlier article, here : Law Society’s legislative powerbase 'is anti-consumer' as Holyrood to hear petition calling for repeal of the Solicitors (Scotland) Act 1980

Holyrood has consistently failed to address reform of complaints against solicitors & serious evidence of organised corruption at the heart of the Law Society. The letter from Michael Clancy to the Petitions Committee, available here to read (pdf) and reprinted in full, below, goes on to remind MSPs they have considered the issue of regulation of the legal profession several times in the parliament’s history, giving the Law Society's glossed-over view of how the various debates over complaints reform have been handled, to the point complaints against the legal profession are still considered & investigated by the legal profession itself, or those connected to it.

While Mr Clancy claims enough consideration has been given to the issue of regulatory reform of the legal profession, the reality is that msps have never addressed some of the most damming evidence of collusion between the Law Society & insurance firms to protect ‘crooked lawyers’ from losing their jobs or having to compensate their victims for millions of pounds of fraud committed against clients each year.

Michael Clancy’s letter to the Petitions Committee said the Law Society does not agree it should be put out of business on complaints & cover-ups. Mr Clancy, who, along with his Law Society colleagues are now dubbed “access-all-areas” by MSPs & MPs due to frequent use of ‘parliamentary passes’ to communicate the Society’s ‘political & legislative wishes’ reveals in his letter : The Society does not agree with the proposition that the Solicitors (Scotland) Act 1980 should be repealed. The 1980 Act is based on the Legal Aid Solicitors (Scotland) Act 1949 but has been amended at various stages since its consolidation in 1980, most significantly by the Law Reform Miscellaneous Provisions (Scotland) Act 1990, the Council of the Law Society of Scotland Act 2003, the Legal Profession and Legal Aid (Scotland) Act 2007 and last year by the Legal Services (Scotland) Act 2010.”

Regulation of the legal profession in Scotland has been the subject of searching enquiry by the Justice 1 Committee of the Scottish Parliament. In the first session of the Scottish Parliament, this Committee held an Inquiry into the Regulation of the Legal Profession. The Committee focused on the way in which the profession handled complaints which had been perceived to be the main source of public concern. The Committee also looked at the general arrangements by which the legal profession was regulated. The Committee concluded that the system of regulation should be retained but recommended that it should be reformed to make it more acceptable to consumers and more representative of the public interest.

Scottish Executive ‘Working Groups’ full of Law Society members studied how complaints should be best handled by lawyers, for lawyers. In 2005 the then Scottish Executive, issued a consultation paper on complaint handling arrangements which resulted in the introduction of the Legal Profession and Legal Aid (Scotland) Act 2007 and the creation of the Scottish Legal Complaints Commission. Simultaneously the Research Working Group on the legal services market in Scotland was considering the legal services market and also considered the regulatory framework for legal services in Scotland. The Research Working Group identified the following strands in the regulatory framework:-

i) The role of Parliament, Government and the Court. The Working Group identified that the United Kingdom Parliament and the Scottish Parliament both had legislative powers in relation to the Scottish legal profession. The Scottish Government and the Office of Fair Trading were also involved in the regulation of the legal profession with the policy lead lying with Scottish Ministers. The Court of Session and lower courts also exercise regulatory power over solicitors in terms of lawyers who practice advocacy before the courts who must conduct themselves in a manner which is acceptable to the Court.

ii) Regulation of solicitors – arrangements for the regulation of solicitors by the Law Society of Scotland are set out in the Solicitors (Scotland) Act 1980. The Society has a statutory responsibility for the promotion of the solicitors’ profession in Scotland and the interests of the public in relation to that profession. In carrying out its functions therefore the Society must not only have regard to the interests of the solicitors’ profession but also the public
interest.

Useless laws allow lawyers to cover up for each other, a fact which Mr Clancy’s letter omits to tell Holyrood’s Petitions Committee. The 1980 Act provides for the statutory basis for the Society, the right to practise, professional practice, conduct and discipline, and complaints and disciplinary proceedings relating to solicitors in Scotland. It has since been amended by subsequent legislation which has enhanced some of the statutory protections available to the client. In particular the regulatory objectives contained in Section 1 of the Legal Services (Scotland) Act 2010 will apply when that provision is brought into effect. The Council of the Society (which is to have a non solicitor component when the Legal Services (Scotland) Act 2010 is implemented, deals both with the Society's regulatory functions (e.g. the setting of standards for entry and education, rule making and monitoring and enforcement) and its representative functions (e.g. negotiating with Government, contributing to the development of the law and the system of administration of justice, representing the profession to the public and other stakeholders, services to members, marketing, and international activities).

Law Society listed its many powers, mostly used to protect solicitors who find themselves the subject of client complaints on everything from embezzlement to criminal activities. The 1980 Act provides the Society with powers to:-

• make regulations in respect of admission to the profession and training within it (section 5);
• make rules in relation to applications for and issue of practising certificates (section 13);
• make rules relating to admission as a solicitor with extended rights of audience (section 25A);
• make rules relating to professional practice, conduct and discipline (section 34);
• make rules relating to the keeping of accounts (sections 35, 36 and 37(6));
• make rules relating to professional indemnity insurance (section 44);
• control and manage the Scottish Solicitors Guarantee Fund (section 43, Schedule 3, Part I);
• handle compliance, enforcement and disciplinary issues arising out of the rules of the Society; and
• handle conduct complaints about solicitors (sections 38 - 42C). Service Complaints are dealt with by the Scottish Legal Complaints Commission.

All rules require the consent of the Lord President before they come into effect.

When the Legal Services (Scotland) Act 2010 comes into effect a regulatory committee (which will be composed of equal numbers of solicitors and non solicitors) will undertake the regulatory work of the Council in terms of Section 133 of the 2010 Act.

iii) External regulation – members of the Law Society of Scotland are subject to external regulation:-

The Court of Session : In the case of professional misconduct by a solicitor, the Court of Session on appeal from a decision of the Scottish Solicitors' Discipline Tribunal may exercise certain powers.

Scottish Solicitors’ Discipline Tribunal : The Tribunal is a statutory body empowered to adjudicate on complaints about professional misconduct and unsatisfactory professional appeals. The composition of the Tribunal is defined in statute and must consist of equal numbers of solicitor members and non solicitor members, all appointed by the Lord President of the Court of Session

Mr Clancy held up the Scottish Legal Complaints Commission as an example of independent regulation, however most feel the SLCC is an example of a Law Society ‘front company’, the SLCC itself staffed mostly by former Law Society employees & Committee members. Scottish Legal Complaints Commission : The Scottish Legal Complaints Commission was created under the Legal Profession and Legal Aid (Scotland) Act 2007. It is the single gateway for all complaints against legal practitioners. The SLCC is an independent statutory body accountable to Parliament. Its Board is appointed by Scottish Ministers in consultation with the Lord President.

iv) External regulators also include profession specific activities. These include:-

a) The Scottish Legal Aid Board under the Legal Aid (Scotland) Act 1986;
b) The FSA under the Financial Services and Markets Act 2000;
c) The Department for Business Innovation and Skills in respect of insolvency practitioner regulation and consumer credit regulation; and
d) The Immigration Services Commissioner under the Immigration and Asylum Act 1999.

Highly regulated or highly insulted & protected from the law ? : Mr Clancy’s letter to MSPs concludes, rather mockingly considering copious media coverage of ‘crooked lawyers’ in Scotland, that : “The solicitors’ profession is highly regulated and has been the subject of searching and consistent parliamentary scrutiny over the past 20 years. The petition fails to acknowledge this and the points raised in the petition have been adequately covered by parliament, especially in the last year with the passage of the Legal Services (Scotland) Act 2010.”

One MSP who read the Law Society’s letter commented this morning : “The Law Society may have all these rules & regulations behind them but it doesn't look like the Solicitors Act and related legislation are being used very well if at least twenty different cases brought to my attention by constituents who have problems with their lawyers, problems with the Law Society and problems with the Scottish Legal Complaints Commission are to be believed.”

He continued : “The terms of the Solicitors (Scotland) Act clearly grants too much power to a single professional regulator in today’s world of consumer protection. Clearly reform is required and perhaps it is now time for the Scottish Parliament to do what Westminster could not achieve with the 1980 Act, in giving power back to consumers, along with an independent body to represent their interests.”

A consumer official speaking to Diary of Injustice this morning agreed it is time to reform the way complaints against solicitors are handled by the legal profession, commenting that present ‘improved’ arrangements on complaints by way of the Scottish Legal Complaints Commission are proving “a disappointment” to many clients.

Scottish Parliament’s Petitions Committee considers petition calling for repeal of laws which allow Law Society to protect crooked lawyers from complaints (click image below to watch video)

The Scottish Parliament’s Petitions Committee considered Petition PE1388 during its session last week, 25 January 2011. The Parliament’s official report official report on the meeting stated :

Solicitors (Scotland) Act 1980 (Repeal) (PE1388)

The Convener: The final new petition today—indeed, the final new petition of this session—is PE1388, by William Burns, on behalf of the crusade for the protection of true democracy, seeking a repeal of the Solicitors (Scotland) Act 1980. I seek members' views on how to take the petition forward.

Bill Butler: We should continue the petition and write to the Scottish Government, asking whether it will repeal the 1980 act, end self-regulation and remove the legal profession's independence. I realise that the proposals are radical, but they are worthy of a response at the very least. After all, the petitioner says that these measures will bring the profession on-side with true democracy, so we should ask the Government whether it will accede to the suggestions made in the petition and, if not, why not. To be fair, we should also ask the Law Society of Scotland and Consumer Focus Scotland for their response to the petition's fairly radical proposals.

John Wilson: As well as writing to Consumer Focus Scotland, we should also seek Citizens Advice Scotland's views.

The Convener: Do members agree to continue the petition?

Members indicated agreement.

The Petitions Committee decided to write to the Scottish Government, Law Society of Scotland, Consumer Focus Scotland & Citizen’s Advice Scotland.

The committee’s letter to the Scottish Government asked : “Will you repeal the Solicitors (Scotland) Act 1980, end self-regulation, and remove the independence of the legal profession, bringing it onside with true democracy as called for by the petitioner? If not, why do you consider this to be unnecessary? More generally, what is your response to the points made in the petition?”

I will continue to report on events surrounding the petition as they unfold.