Solicitors (Scotland) Act 1980 : Scottish Government refuse to repeal Law Society’s self regulating powers of lawyers investigating themselves

One in the same ? : Scottish Government side with Law Society against Holyrood petition to repeal complaints whitewash law. THE SCOTTISH GOVERNMENT has pointedly & expectedly, sided with the Law Society of Scotland over the debate on consistently poor regulation of Scotland’s solicitors & legal services market, telling the Scottish Parliament’s Petitions Committee it will not repeal the much hated, much questioned, much misused & infamously anti-consumer Solicitors (Scotland) Act 1980, the Westminster enacted thirty year old legislation which allows the Law Society of Scotland to ‘look after & cover up after their own’ by investigating complaints against their own solicitor colleagues.

Colin McKay, image sourced from Scottish Government online documentation. COLIN MCKAY, the Deputy Director of the Scottish Government’s Legal Systems Division, responding on behalf of the current SNP minority Scottish Government which has done little for consumer protection against ‘crooked lawyers’ in Scotland’s monopolistic legal services market, currently dominated by the Law Society of Scotland, said “The Scottish Government has no plans to repeal Solicitors (Scotland) Act 1980 (“the 1980 Act”), to fundamentally alter the current regulatory arrangements for solicitors, or to remove the independence of the legal profession. A strong and independent legal profession, with core values that protect the interests of justice and of the public, is a fundamental part of our democracy.”

Kenny MacAskill’s Justice Department laughably claims regulation of lawyers in Scotland ‘is robust enough’. The terse Government response from Mr McKay, which goes on to laughably argue Scottish lawyers face “a robust … regulatory system already in place”, comes in response to a petition, Petition PE1388, originally filed as an e-petition at the Scottish Parliament by a Mr William Burns calling “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.”. The online petition drew some 161 signatures, and a number of discussion comments highly critical of the Law Society of Scotland and its regulation of complaints against solicitors.

Mr McKay’s questionable references to a ‘robust regulatory system already in place’ for the Scottish legal profession may refer to the hapless, anti-client Scottish Legal Complaints Commission, who as I reported late last month, has only managed to uphold one complaint against an unknown solicitor or law firm in three years : ‘One complaint upheld’, 928 more sent back to Law Society & £1.8million spare cash : Scottish Legal Complaints Commission's 2010 annual report

‘Robust regulation’ or the usual anti-consumer, anti-client bias towards complaints against ‘crooked lawyers’ ? The SLCC’s second annual report, almost identical to it's 2009 annual report reveals the ‘robust’ Scottish Legal Complaints Commission received a total of 3,561 enquiries during that period, resulting as it claimed, in 1,452 cases classified as “legal complaints”. However, the majority of these cases (928) were sent back to the Law Society of Scotland or Faculty of Advocates under the SLCC’s controversial policy of refusing to deal with any legal business or cases involving instructions given to solicitors which occurred prior to 1 October 2008, the date the SLCC formally began operating, while others were apparently closed ‘as being out of the SLCC’s jurisdiction’.

SLCC fiddled while complaints burned : Statistics reveal one single complaint upheld in three years ! Buried deep in the annual report, the sobering statistics of Mr MacAskill’s ‘robust regulator’ reveal that of the 204 complaints the SLCC reported it had or was actually dealing with during the last year, amazingly, the law complaints quango only managed to fully uphold one single complaint, along with a handful of others being ‘mediated’ or ‘resolved’ in ways not fully described. The Annual report states : *17 complaints were resolved through mediation and 17 others still under consideration for mediation at the end of the year; * 170 complaints went to investigation, of which 92 were still in hand at the end of the year; * of these, 23 were resolved at or before the stage of an investigation report; * seven were withdrawn by the complainer; * 48 complaints were referred for determination, of which eight were partially and one fully upheld, 15 were not upheld, one was withdrawn, and 23 were still being considered at the end of the year.

Robust regulation ? … well its a good thing the SLCC & Law Society of Scotland are not in charge of the Police, or there would be no prosecutions of criminals in Scotland, ever !

Colin McKay’s full response to Petition PE1388 can be downloaded from the Scottish Parliament’s website HERE (pdf), and is reprinted below in full :

The Scottish Government has no plans to repeal the Solicitors (Scotland) Act 1980 (“the 1980 Act”), to fundamentally alter the current regulatory arrangements for solicitors, or to remove the independence of the legal profession. A strong and independent legal profession, with core values that protect the interests of justice and of the public, is a fundamental part of our democracy. A robust system of regulation for the legal profession is also vital, and the Scottish Government believes that such a system is currently offered by the Law Society of Scotland (“the Society”), one of the objects of which, set out in section 1 of the 1980 Act, is to promote the public interest in relation to the solicitors’ profession.

Furthermore, any complaints relating to the services provided by solicitors are handled by an independent body, the Scottish Legal Complaints Commission (SLCC), which was established by the Legal Professional and Legal Aid (Scotland) Act 2007. Complaints relating to misconduct are investigated in the first instance by the Society, which can refer cases to the Scottish Solicitors’ Discipline Tribunal, an independent body which has equal numbers of solicitor and non-solicitor members, appointed by the Lord President.

The SLCC has the power to investigate the way a conduct complaint was handled by the relevant professional body (in this case, the Society). This is known as a handling complaint and the SLCC can produce a report including making certain recommendations relating to the way the complaint was dealt with. The professional body then has a period of three months in which to notify the SLCC, the practitioner concerned, and the person who made the handling complaint of any actions it has taken to comply with the recommendations. If no action has been taken, it must specify why not, and can actually be required to take action by the SLCC.

In response to the Petitions Committee’s question to the Scottish Government : “More generally, what is your response to the points made in the petition?”, Mr McKay replied :

The petitioner raises concerns about the “self-regulation” of the legal profession and, in particular, about the tension between the Society’s duty to the public and its duty to its members. While the Scottish Government believes that the Society currently has a robust system of regulation in place, it does recognise that modern regulatory systems must be seen to be independent. In particular, it believes that regulatory functions such as those exercised by the Society must be carried out by a body with significant lay membership, to ensure such independence and a focus on the public interest.

The Scottish Parliament recently had an opportunity to consider such matters, and the regulation of the legal profession in general, through the consideration of the Legal Services (Scotland) Bill. Although this Bill (which received Royal Assent in November 2010) was primarily directed at creating a regulatory framework for new forms of legal business structures, it also made significant changes to the 1980 Act in relation to the regulation of solicitors. These changes include provision to ensure that there is a clear split between the regulatory and representative functions of the Society, through the creation of an independent regulatory committee with at least 50% lay membership (section 133). That committee will be responsible for the exercise of all the regulatory functions of the Society, and will carry out those functions independently of the Council of the Society (and of any other person or interest). In addition, the Act will introduce certain “regulatory objectives” which will apply to all regulators of legal activities, including the Society. These objectives include promoting and protecting “the interests of consumers” and “the public interest generally” (see section 1).

Given these planned amendments to the 1980 Act (which the Scottish Government plans to implement this year), and the robust nature of the regulatory system already in place, the Scottish Government does not believe repeal of the 1980 Act, or the other measures suggested by the petitioner, to be necessary or desirable.

A campaigner speaking to Diary of Injustice on Friday afternoon said the Scottish Government’s reply to the aims of the petition sounded more like an advertisement for retaining the Law Society of Scotland as a complaints regulator in perpetuity.

He said : “I have to wonder which side the Scottish Government are on when it comes to protecting clients against crooked lawyers & poor legal representation when they sit back and simply allow solicitors to continue covering up complaints against their own colleagues. The response from Mr McKay is so similar to the Law Society’s letter from Mr Clancy, it is beginning to look obvious to all the Law Society are in charge of the Justice Department and Government policy on anything to do with the justice system or anything to do with reforming the way lawyers & the courts regulate themselves.”

My earlier coverage of the ‘anything-but-robust’ Scottish Legal Complaints Commission and its much less than expected performance as a regulator of complaints against Scotland’s legal profession, can be read here : The Scottish Legal Complaints Commission – The story so far