Saturday, February 26, 2011

Scottish Parliament raise questions over senior lawyer’s resignation, legal threats & claims Law Society has “a fundamental dishonesty at its core”

Petitions Committee raised questions over high profile Law Society resignation. CLAIMS from a leading lawyer the Law Society of Scotland has “a fundamental dishonesty at its core” which were made by former Glasgow Bar Association (GBA) President John McGovern who spectacularly resigned last week from the ruling Council of the Law Society of Scotland, have been raised at the Scottish Parliament’s Petitions Committee who are currently considering a petition Petition PE1388, which calls for the repeal of the Solicitors (Scotland) Act 1980 and an end to lawyers investigating complaints against themselves.

Scottish Law Reporter’s report on McGovern resignation amid Law Society dishonesty claims. It was reported earlier this week by Scottish Law Reporter, quoting reports from the independent law publication “The Firm that former GBA President John McGovern had resigned from the Law Society of Scotland’s Council after a string of disagreements with the Law Society on everything from alternative business structures to the Society’s role over representation of solicitors & complaints handling. Mr McGovern apparently accused the Law Society of being “fundamentally dishonest at its core”, something many individuals from clients to journalists to politicians who have come into contact with the Law Society over regulation issues, have known for years.

According to Scottish Law Reporter, The Firm’s website reported on the 16th February 2011 : “John McGovern, the former President of the Glasgow Bar Association and Law Society Council member for Glasgow and Strathkelvin resigned from the Law Society Council last night, claiming the Society has "a fundamental dishonesty at its core". He has resigned with immediate effect.”

The report goes onto say : “McGovern, who was elected to Council in May last year, has been critical of the Society's policy on ABS, and has campaigned against the dual functions of representation and regulation being vested in the Society, amongst other issues.”

The Herald newspaper reported on a possible legal challenge to the Law Society’s authority. A few days later in the in the Herald newspaper on 18 February, it was reported the Glasgow Bar Association may mount a legal challenge to the Law Society’s requirements solicitors be a member before they can practice law and within the Herald’s story, David O’Hagan, a former president of the GBA was quoted as saying : “The credibility of the Law Society as a representative body is now at rock bottom for many Glasgow solicitors. The GBA are now actively looking at a legal challenge to end compulsory membership of the society and with a view to setting up their own independent representative body for its members.”.

However, any hope the GBA might strike a blow for consumer protection seems to have ebbed away by the time the papers reported the story, after a spokesman for the Glasgow Bar Association, also quoted in the Herald story said : “We have no problem with the Law Society’s regulatory role – we just don’t think it should represent us as well.”

So it would appear while the Glasgow Bar Association may not be happy their solicitors must be members of the Law Society of Scotland to practice, the GBA happily accepts the Law Society’s highly prejudicial anti-consumer role over regulation of complaints, where lawyers investigate their own colleagues. If Mr McGovern’s reported claims of dishonesty at the Law Society are to be believed, this amounts to a clear case of double standards or perhaps do as I say, not as I do.

After the lurid headlines where clearly it seems to have been acknowledged from within the ever self-interested legal profession itself the Law Society is indeed, rotten to the core, campaigners who have lodged a petition at the Scottish Parliament calling for the repeal of the Solicitors (Scotland) Act 1980, the legislation which gives the Law Society of Scotland powers to self-regulate complaints against its own members, drew the now very public argument between the Glasgow Bar Association & the Law Society to the attention of MSPs, who raised the issue at this week’s Petitions Committee meeting.

Petition PE1388 : John Wilson MSP raised issue of lurid headlines over Law Society resignation at Holyrood’s Petitions Committee (click image to view video)

As the debate proceeded, there was an initial attempt to close the petition by Bill Butler MSP (Scottish Labour), who felt the Scottish Government would not budge from their position of refusing to repeal the Solicitors (Scotland) Act 1980, due to the “very precise terms of the petition”,

Another member of the Petitions Committee, John Wilson MSP (SNP) then raised the very public reports of John McGovern’s resignation saying he “.. thought it might be worthwhile writing to the Government seeking its views on the resignation of the individual and the headlines which were associated with that resignation, should raise concern with many people because of the allegations that have been made”

John Wilson continued : “I would like to continue this petition and ask the Scottish Government what action or what its views are in relation to the public statements made by a leading member of the Glasgow Bar Association in relation to this issue because clearly the petitioner has raised a number of issues and the Scottish Government have responded to the petitioner but given the situation in the last week in terms of the public statements that have been made I think there is a need to continue this petition and seek assurances from the government that they are looking into this matter and in particular the allegations that have been made by the individual who resigned.”

Bill Butler commented after hearing John Wilson’s comments he had no objection to the petition being continued in the terms which Mr Wilson had described. Petitions Committee Convener, Rhona Brankin MSP then asked that a prompt response be obtained by email from the Scottish Government, who duly obliged with a letter dated the next day, 23 February.

In the words of a Holyrood insider who passed a copy of the [now published] Scottish Government’s response to Diary of Injustice, Justice Department officials have apparently misled the Petitions Committee over the resignation of Mr McGovern, withholding any mention of media reports directly mentioning Mr McGovern’s claim the Law Society had “a fundamental dishonesty at its core”.

Scottish Government letter omitted the now very public allegations the Law Society are dishonest, claimed regulation of crooked lawyers is robust ! The Scottish Government’s response to the Petitions Committee, signed by Jill Clark from the Legal System Division, states : “We understand that Mr McGovern has stood down from the Law Society’s Council and not the Law Society itself. According to press reports this was because he was unhappy with the society’s role in negotiating legal aid fees. Mr McGovern has obviously made a personal decision and the Scottish Government has no comment to offer on the reported reasons for his resignation. It is not clear why this resignation would have any implications for our position on this petition. The Scottish Government is of the view that there is a robust system of regulation in place for the legal profession and that our position remains as set out in our earlier reply of 1 February 2011.”

The insider, speaking to Diary of Injustice accused the SNP controlled Scottish Government of being afraid of the Law Society. He said : “The Scottish Executive is afraid to tackle any allegation the Law Society is dishonest, as the Executive relies on the Law Society’s help over a wide range of legal issues and cannot afford to upset its Council or raise any doubt over the Society’s powers of regulation.”

A legal reform campaigner speaking on the issue of the petition earlier today called for the Justice Secretary Kenny MacAskill to be brought before the Parliament’s Petitions Committee and answer questions on the role of the Law Society of Scotland.

He said : “The Justice Secretary Kenny MacAskill should be made to appear before the Petitions Committee and submit to proper questioning on just why the Law Society should have these special laws which control how lawyers can investigate themselves at the expense of their clients and the rest of us.”

He continued : “It is just not fair what is going on with the Law Society and these MSPs know it full well. Its time the Justice Secretary himself stands up and justifies this claim of robust regulation which is just nonsense.”

It would certainly be interesting to see how Mr MacAskill manages to answer in public just how robust the Law Society of Scotland is when it comes to regulation of the legal profession. He could also answer just why there is so much corruption within the Law Society, which his Cabinet colleague, John Swinney did an excellent job of bringing into the public domain, over four years ago.

To answer Mr McGovern’s claim simply, does the Law Society of Scotland have “a fundamental dishonesty at its core” ?

The answer of course, is “Yes”. Will Mr MacAskill admit such a thing ? I doubt it, even though most of us (including some solicitors) already know how dishonest the Law Society of Scotland really is.

Thursday, February 24, 2011

Where There’s A Will There’s A Crook : OFT say choose your will writing service wisely, consider costs, avoid making a solicitor your executor

will photo stockSurveys reveal consumers frequently make poor choices in will writers & executors. EVERY ONE of us should ensure our assets & financial affairs are put in order after we die, however the dangers of writing a will with an unscrupulous professional such as a crooked lawyer or an overcharging bank are well known to many families & relatives across Scotland who, after the death of their loved ones, have ended up being forced to deal with complicated complaints procedures put in place by biased self regulators such as the Law Society of Scotland or some rather dubious Ombudsman with little or no powers to put right the inevitable financial disaster for the beneficiaries, while the solicitor or bank pockets the remains of the will.

oft2OFT say consumers should not be led to appoint a professional solicitor as an executor. Today, the will writing services of the banks has come under wider public scrutiny as the Office of Fair Trading (OFT) announced the big four banks, Barclays, HSBC, Lloyds Banking Group & Royal Bank of Scotland have all voluntarily agreed to review and, where necessary, improve the way they sell will-writing and executor services. The move follows discussions with the OFT during 2010 as part of a wider effort to improve the will-writing market for customers and their beneficiaries, following concerns that some (well, most) consumers are appointing professional executors without fully understanding the likely costs and the alternative options.

The OFT’s announcement states the big four banks have agreed to meet three key principles, to ensure customers are able to make well-informed decisions.

  • Consumers making a will should not be led to believe that appointing a professional executor is essential or the norm.
  • Consumers should not be encouraged to appoint a professional executor unless it is clearly in their best interests.
  • Providers should be satisfied, before the will is drafted, that the consumer has the information necessary to make an informed choice. The consumer should understand the options around executor appointments and be aware of the likely basis of charging for the professional executor service.

The OFT reported all four banks are currently reviewing their product literature and processes and any necessary changes should be in place within six months at the latest. Barclays Bank, HSBC, Lloyds Banking Group and RBS Group are the only banks that currently offer will-writing and executor services, however consumers may not always be aware that each bank outsources the preparation of wills to external solicitors, although the bank provides the executor service itself.

While the OFT survey applies only to will writing services of banks, services which are used perhaps more so in England & Wales than in Scotland, many Scots consumers who are thinking of writing a will usually end up blindly walking into a solicitors office somewhere in the country, with absolutely no knowledge of what to expect from their solicitor or bank in terms of what kinds of services are offered, how much a will could cost to be implemented after death, and what action could be taken by beneficiaries if there is poor or negligent handling of a will by the executor, the bank, the solicitor or the will writer who drew up the will in the first place.

If the lack of information on costs of handling a will and how to put things right if its handled badly isn't confusing enough, the serious question of who to appoint as executor is often handled poorly by consumers, who, almost unbelievably in 2011, end up appointing the same solicitor who writes the will, which is almost like giving a blank cheque to a house burglar who will more often than not charge as much as they can for handling a will after death, to the point in some cases, there is no money left for anyone except themselves.

The OFT today reminded consumers there is no requirement in law to appoint a professional executor, although, according to a survey published by the OFT last year, some 43 per cent chose to appoint (usually through ignorance) the same professional will-writer or solicitor who wrote their will.

While the costs for preparing a will can be relatively modest, the costs for a professional executor to administer an estate can be high and vary considerably. For an average estate, consumers can pay between £3,000 and £9,000. Failing to shop around for executor services could be costing UK consumers around £40 million a year, according to OFT estimates.

David Stallibrass, Director in the OFT Services and Public Markets Group, said: “The wrong decision when appointing executors could mean a potentially expensive professional service is chosen, when a family member or friend may be quite capable of handling the task either alone or with professional support. We are pleased that each of the banks has agreed to review its selling practices and marketing literature to ensure customers are getting the information they need to make informed choices.”

When a will is prepared, thought will usually be given to who is legally responsible for administering the estate according to the provisions set out in the will. When appointed under a will, these persons are known as 'executors'. Lay executors - such as friends or family members - can be appointed instead of appointing a solicitor who can end up charging what they like for administering the provisions set out in the will.

The alternative is that consumers can employ a professional executor, who will administer the estate in return for a significant fee - often a sizeable percentage of the value of the estate or possibly even the entire estate if the actions of some solicitors are taken into account. Any consumer ignorant enough to appoint such a person who is covered by their profession’s self regulator may end up appointing the same person or firm who wrote the will such as a solicitor. Bad decision in nine out of ten cases.

Speaking from a personal perspective as a victim of the legal profession over a will rip off, if you do end up appointing a solicitor as your executor, you may well end up with an Andrew Penman, or a Norman Howitt which means you are basically giving all your money, property, possessions etc over to a lawyer so they can enjoy it. Bad decision.

Don't do it. Don't fall into the trap of trusting the person behind a desk in a lawyers office just because they sit in an office and give the appearance they can be trusted. The experience of many people each year in Scotland indicates when it comes to wills and solicitors, the phrase Where there’s a will, there’s a crook has considerable weight.

SLCC LAW SOCIETYCase after case has proved the Law Society & SLCC take no action against lawyers who rip off wills & bereaved families. Do you really want to put your remaining family, friends or loved ones through the nightmare of dealing with a crooked lawyer, crooked law firm, or even worse, having to go through the self protecting Law Society of Scotland or the anti-client Scottish Legal Complaints Commission ? Take my advice, avoid it all and make sure you never appoint someone such as a solicitor or an accountant as your executor, certainly not in Scotland, because there are absolutely no safeguards to poor, negligent or even the criminal handling of wills by Scottish solicitors.

Given the significant degree of negligence or even criminality in the handling of wills in Scotland, it is long past time for a review of will writing services offered by the legal profession, and wider public education of the real costs & hidden dangers of who you as consumers allow to write & implement your final wishes.

However, any such review of the disgraceful state of will services offered by the Scottish legal profession may well have to come from south of the border because most political parties in Scotland realise its just too much of a cash cow for their friends & donors in the legal profession, a cash cow for lawyers which is guarded to the death …

My previous coverage on the subject of wills, will writers, and the crooked lawyers who handle wills can be found here : Where there's a Will, there's always a crook, a crooked lawyer & a crooked self regulator

Tuesday, February 22, 2011

Holyrood's Justice Committee Chief Bill Aitken who praised former Law Society boss after complaints scandal is forced to resign over rape comments

bill aitkenTory Justice Committee Convener Bill Aitken shamed into resignation over his comments on a rape case. BILL AITKEN, the well known Scottish Conservative & Convener of the Scottish Parliament’s sole Justice Committee for the past four years has been forced to resign his committee position after his comments in a media interview regarding a rape case in Glasgow where he inferred a rape victim may have been a prostitute resulted in a Parliamentary Motion lodged by Green MSP Patrick Harvie, calling for him to quit.

While the focus of most of today's news reports on Mr Aitken’s resignation remains on the actual comments made by the Justice Committee Convener & Tory spokesman on ‘Community Safety’, it should not be forgotten that Mr Aitken, who is no stranger to controversy himself, reportedly denied he had made the controversial comments regarding a rape case to the Sunday Herald newspaper, apparently changing his story to admit what he had said only after ‘reading a transcript of the interview’.

The Sunday Herald interview with Mr Aitken over a Glasgow rape case quoted Mr Aitken as saying : “I really think we need to know a bit more about these. They are not always as they seem to be, put it that way.If this woman was dragged halfway through the town then it just couldn’t possibly happen. So has nobody asked her what she was doing in Renfrew Lane? Somebody should be asking her what she was doing in Renfrew Lane. Did she go there with somebody? ... Now, Renfrew Lane is known as a place where things happen, put it that way.It’s an area where a lot of the hookers take their clients. Now that may not have happened in this case. But you know ... what was happening?”

The Sunday Herald further reported : When challenged on his comments by the Sunday Herald, Aitken denied making them until he read a transcript of the conversation. Asked whether there is a difference between the rape of women who work as prostitutes and those who don’t, he said: “Well, the prostitute has possibly put herself in a position of some vulnerability.”

Mr Aitken’s remarks were widely criticised from all quarters, including the Police, as was reported by Scottish Law Reporter, here : Cops claim Tory Justice Committee boss infers Hookers deserve it : Scottish Conservative’s Bill Aitken asks paper “Was rape victim a prostitute ?"

The Sunday Herald reported at the time the Scottish Conservative’s current boss, Annabel Goldie, refused to condemn her Tory Party colleague for his remarks, and then apparently “turned and walked away.”

The condemnation of Mr Aitken’s comments then reached the stage where a Parliamentary motion was due to be lodged yesterday by the Green MSP, Patrick Harvie, calling for Mr Aitken’s immediate resignation from the Justice Committee.

In the media release from the Scotland’s Green Party, Patrick Harvie said : "Bill Aitken's comments are way beyond the standards any party in Parliament should find acceptable from any MSP, but they make it entirely unacceptable for him to continue in post as Convenor of the Justice Committee. No-one who thinks we should blame rape victims should ever be allowed to hold that role in this country.”

Mr Harvie continued : "If he does not resign, the Tory leadership should force his hand. If they do not, Parliament must act to remove him, and act quickly. The alternative would a serious loss of confidence in Parliament as an institution, and the Justice Committee in particular."

Mr Aitken, who is also retiring from the Scottish Parliament and not standing in this year’s election said: "I am standing down as convener of the justice committee. I do so with a mixture of emotions: frustration at allowing myself to be misrepresented; anger at being misrepresented and remorse to rape victims and their loved ones for any hurt they feel, but also in the hope my true views can now be heard. In all my years as a city councillor, a JP and an MSP, I have spoken out against criminals and spoken up for victims of crime. That will not change in retirement. I will continue to battle for justice for all."

Conservative Party leader Annabel Goldie commenting on Mr Aitken’s resignation, said: “Bill Aitken is a man of principle and honour. He was not prepared to let any issue compromise the work of the Justice Committee and he has shown his respect both for the committee and the party.”

However, in a stark indication of just how honest we can expect our politicians to be, neither Mr Aitken nor his Scottish Conservative Party boss Annabel Goldie chose to explain reports of why Mr Aitken initially denied his comments over the rape case to the newspaper until being shown a transcript of the interview.

A legal insider commenting on Mr Aitken’s resignation said today : “Changing stories to journalists only after being shown evidence of one’s comments is not the expected level of honesty or integrity to be shown by a Convener of the Scottish Parliament’s Justice Committee”.

While Mr Aitken’s political career has ended on a sour note over his comments regarding a rape case, he is well known for a habit of making controversial remarks, where in one instance he sought to praise a former Chief Executive of the Law Society of Scotland Douglas Mill in the Scottish Parliament’s debating chamber during a debate on the Legal Services Bill.

Bill Aitken offers praise for the then Chief Executive of the Law Society, Douglas Mill, claiming “Scottish Lawyers have an excellent reputation (click image to watch video)

The Scottish Parliament’s website, in a slightly differing verbatim account of the above footage reports Mr Aitken as saying : “Scottish lawyers have an excellent reputation. Members of the Law Society, such as Douglas Mill, have contributed to the International Institute of Law Association Chief Executives. That is indicative of the way in which Scots lawyers are regarded elsewhere. Other distinguished members of the Law Society staff have played international roles, which is to be encouraged.”

Just a few weeks later in January 2008 after Mr Aitken’s fawning comments for the Law Society Chief Executive, Douglas Mill himself was forced to resign his position after a video recording of a clash between Mr Mill & the Scottish Government’s Finance Chief, John Swinney was posted to the popular video file sharing website You Tube.

Douglas Mill 4Former Law Society boss Douglas Mill received praise from Bill Aitken during Parliamentary debates, only to be forced into resignation a few weeks later after memo scandal. The video footage from an earlier Scottish Parliament Justice Committee investigation of the Law Society & regulation of the legal profession in 2006, quoted Mr Mill as denying he had become involved in interfering with claims & complaints made by members of the public against crooked lawyers. John Swinney then produced one of Mr Mill’s own secret memos which proved Mr Mill and a number of others within the Law Society, including its then President and insurers had colluded against complaints & damages claims made by clients against Scottish solicitors.

John SwinneyJohn Swinney revealed copies of secret memos which contradicted Douglas Mill’s testimony to an earlier Justice Committee over protection of crooked lawyers. Mr Swinney, then in opposition battled on with Mr Mill in a clash before the Justice Committee lasting several minutes, at the end of which no one was left in any doubt the Law Society of Scotland and Mr Mill had been involved in preventing claims for damages against ‘crooked lawyers’ from going ahead. The incident was reported in the Herald newspaper at the time in an article titled Would granny swear by the law society ?” in a reference to Douglas Mill claiming he had not intervened in claims against ‘crooked lawyers’ by swearing on his granny’s grave.

Bill Aitken’s misplaced idol ? : Douglas Mill & John Swinney come to blows over corruption at the Law Society & its Master Policy insurance, revealed in Mr Mill’s own secret memos (click image to watch video)

A legal reform campaigner speaking this afternoon to Diary of Injustice said he felt Mr Aitken’s praise for the Scottish legal profession was misplaced, particularly in view of the 2006 revelations of the Law Society of Scotland’s conduct towards members of the public in complaints & claims for compensation.

He said : “Mr Aitken’s remarks in the Parliament praising lawyers sound like they come from a lobbyist, not an elected politician."

He continued : "Any msp who openly praises the legal profession when there is such blatant evidence available as Douglas Mill’s memos which clearly show corruption right at the heart of the Law Society should examine whether they are in the right job. Maybe they should go and work for the Law Society instead of pretending to represent the majority of voters who are not lawyers and don't work in or for the legal profession.”

Justice CommitteeThe current Holyrood Justice Committee under Mr Aitken’s term as Convener has not been ‘consumer friendly’ to reforms of regulation the legal profession. Mr Aitken’s term as the Convener of what has been one of the most disappointing Justice Committees since the Scottish Parliament was re-established in 1999, saw members of the public excluded from giving any evidence on their personal experiences with Scotland’s legal services market during the Justice Committee’s investigation of the Legal Services Bill, which instead saw a platoon of appearances from the legal profession & the Law Society of Scotland, who proposed ordered so many amendments to the Legal Services Bill, its initial aims of widening access to justice for Scots have been completely ruined.

I reported on msps final vote on the Legal Services Bill, here : 'Choice' but not as we know it : Legal Services Bill passed, Scots access to justice remains mostly under Law Society's control

You can read my full coverage of the Legal Services Bill and how it passed through the Scottish Parliament, here : Legal Services Bill for Scotland - Scots denied access to justice on the Law Society's orders

To demonstrate the rather one sided approach to the Legal Services Bill taken by Mr Aitken’s Justice Committee, readers can view my report of the Law Society of Scotland’s ‘easy ride’ testimony on the Legal Services Bill here : Little mention of consumer protection for Scots as Law Society give evidence to Holyrood on Legal Services Bill reforms

In comparison to the way members of the Law Society were treated by Mr Aitken and the Justice Committee, my coverage of the OFT & Which? testimony on the Legal Services Bill, in which consumer interests were noticeably ripped apart by msps, is available here : OFT & Which? call for independent regulation of lawyers as Justice Committee hears evidence on Legal Services Bill

In reality, as far as battling for justice goes, Mr Aitken’s term as Holyrood’s Justice Committee Convener appears to have been less along the lines of battling for justice for all, and more along the lines of battling to keep the current status quo as it is where justice in Scotland is far out of reach for most Scots, and questions over the honesty & integrity of the Scots justice system such as the Lockerbie case and the many more cases of injustice or the public’s access to justice remain unanswered.

Battling for justice for the legal establishment, is a world away from battling for justice for the Scots public.

In a curious development this morning, a legal insider claimed the Law Society of Scotland were, prior to the scandal over the rape comments, discussing whether to offer Mr Aitken a role on one of its Committees after he retires from the Scottish Parliament. Whether the Law Society choose to proceed with their alleged offer in the light of Mr Aitken’s resignation, remains to be seen.

Wednesday, February 16, 2011

Holyrood, msps & their queasy feelings about regulation reform : Eight petitions against Scottish Public Services Ombudsman closed in minutes

LGC Committee HolyroodScottish Parliament’s Local Government Committee closed eight petitions asking for an independent review of the SPSO. As readers will now be well aware, EIGHT PUBLIC PETITIONS calling for an independent review of the Scottish Public Services Ombudsman (SPSO) which received the backing of the Scottish Government’s Housing Minister Alex Neil in his capacity as a constituency MSP to the petitioners were closed in under three minutes by the Scottish Parliament’s Local Government & Communities Committee on Wednesday of last week.

The closure of all eight petitions, calling for a review of the independent regulator which investigates complaints against public services in Scotland, maintains the Scottish Parliament’s noticeably almost perfect record of refusing to consider any public petition which calls for an independent investigation into, or reform of any regulator, self-regulator, or ‘Ombudsman’ position in Scotland.

For those who were following the progress of the eight petitions calling for a review of the SPSO, along with one additional petition with similar aims which was closed by the Petitions Committee at an earlier hearing, I reported on these matters in earlier coverage which includes video testimony from Alex Neil MSP, here : Holyrood considers nine petitions against Scottish Public Services Ombudsman as Housing Minister dubbed ‘out of touch’ over accusations

The Petitions Committee then sent all eight of the remaining petitions to the Local Government & Communities Committee, reported here : Petitions calling for review of Scottish Public Services Ombudsman over complaints remit sent to Holyrood’s Local Government Committee

The Scottish Parliament’s Local Government & Communities Committee did indeed consider the petitions, for around three minutes, although as observers to the committee’s deliberations noted, it took the Convener longer to read out the details of the petitions themselves than it actually took members to debate their content in front of the cameras. The Committee subsequently closed all eight petitions involving the SPSO.

Holyrood’s Local Government & Communities Committee ‘discuss’ public petitions calling for a review of the SPSO (click image below to view video)

Scottish Public Services Ombudsman (Review) (PE1342, PE1343, PE1344, PE1345, PE1346, PE1347, PE1348 and PE1349)

The Convener: Item 5 is consideration of eight petitions that call on the Scottish Parliament to urge the Scottish Government to commission an independent review of the Scottish Public Services Ombudsman to make it more accountable for its performance, including the extent to which its investigations are fair and robust, and to widen its remit so that it can enforce its recommendations following investigations into actions of public bodies. The petitions are PE1342, by Phyllis and Robert French; PE1343, by Sandra Smith; PE1344, by Philip Hawthorne; PE1345, by James Smith; PE1346, by William Whiteside; PE1347, by Christina Cumming; PE1348, by Mr and Mrs Corbett; and PE1349, by Iris Innes. I invite members to discuss the petitions and to consider options 1, 2 and 3, as outlined in paper LGC/S3/11/5/5.

Alex Johnstone: Before the discussion begins, given some of the correspondence that we have had on the subject, I draw to my colleagues' attention the fact that I am an elected member of the Scottish Parliamentary Corporate Body.

The Convener: Do you want to add anything further on the proposals in the paper?

Alex Johnstone: No.

John Wilson: I point out to members that, as a member of the Public Petitions Committee, I sat in consideration of these petitions.

The Convener: Okay. Do you have any comments to add to that?

John Wilson: No.

Alasdair Morgan: In view of what we have heard from the SPCB in Paul Grice's letter and, more particularly, from the ombudsman the last time he appeared before us, we should take no further action on the petitions and close them.

The Convener: Do members agree to Alasdair Morgan's suggestion, which is option 1, which is that we should close the petitions under rule 15.7 of the standing orders and take no further action?
Members indicated agreement.

The next day, February 10, the Scottish Parliament voted on the reappointment of Jim Martin as Scottish Public Services Ombudsman for a further six year term, with msps voting 98 in favour, 8 voting against, and 9 abstaining.

The reappointment of Mr Martin was announced HERE

Mike Pringle, MSP, who proposed the motion on behalf of the Scottish Parliamentary Corporate Body (SPCB), said : “It is the unanimous view of the SPCB that Jim Martin is the right person for the role of Scottish Public Services Ombudsman. We consider that he has brought about visible and sustained improvements to the case load management of the office. His regular commentaries demonstrate recommendations for public authorities to make improvements to their processes where that is appropriate. He has also introduced a quality assurance process that we believe will continue to drive up the standards that he wants.”

Mr Pringle continued : “Of course, the SPCB is aware that some members have not always agreed with the ombudsman‘s decisions, and we received some unsolicited representations about the reappointment of Jim Martin. The Parliament has given the ombudsman the independence to make decisions, and in doing so he is not under our direction or control at all. As with ombudsmen around the world, not all parties will be satisfied all the time. That is simply not possible, given the nature of the job. However, we believe that Mr Martin is the right person and that during his next six-year term in office he will continue to build on the considerable improvements that he has already made in his office.”

Integrity4scotland is a campaign which has been set up to “campaign for the highest ethical standards, transparency & public accountability within Scottish public service bodies. Readers who may have encountered difficulties with the Scottish Public;ic Services Ombudsman or have issues with the accountability of Scottish public service bodies may wish to visit their website HERE

As I was busy with other reports last week and some upcoming investigations, this article is published today to complete my reporting on the progress of the petitions against the SPSO in the duty of keeping readers aware of how the Scottish Parliament handles petitions involving ‘touchy subjects’ such as regulation of, well … anything.

Friday, February 11, 2011

Poisoned Chalice : MacAskill forced to parachute Government’s own lawyer onto Scottish Legal Complaints Commission after Advocates shun job offer

MacAskill tight lippedHumiliation for Justice Secretary MacAskill in latest SLCC appointments round as no one applies for lawyer position. KENNY MACASKILL, Scotland’s Justice Secretary and the controversial anti-consumer Scottish Legal Complaints Commission (SLCC) were both left in a humiliating position of being forced to beg Richard Keen QC, the Dean of the Faculty of Advocates for help in finding a suitable recruit to fill a ‘lawyer-only’ position at the ‘independent’ law complaints regulator, the SLCC, after documents published today reveal not one single member of the entire Scottish legal profession applied for one of four newly created & lavishly paid positions on the SLCC’s board.

The lack of any candidates subsequently forced the Scottish Government to appoint its own standing Junior Counsel to the advertised position at the SLCC, in what some say amounted to a face saving exercise for the Justice Secretary.

The humiliating lack of interest from Scotland’s 460 or so Advocates in the latest recruitment drive for the Scottish Legal Complaints Commission’s already lawyer-heavy board was revealed in documents obtained through Freedom of Information legislation which show only one Advocate ‘was identified’ by the Scottish Government’s own recruitment team for the ‘lawyer-only’ position, after no one else from the Faculty of Advocates applied to join the infamously anti-client, anti-consumer SLCC.

The sole ‘identified’ Advocate whose name was entered into the recruitment process was later named by the Justice Secretary as the well known Maurice O’Carroll, who happens to be the Scottish Government’s own standing Junior Counsel.

Scottish Government officials were forced to write to Faculty of Advocates after no one came forward to join the SLCC’s board. According to papers released in response to a Freedom of Information request to the Office of the Commissioner for Public Appointments for Scotland (OCPAS), a recruitment panel chaired by Colin McKay, the Scottish Government’s Head of Legal Services Division, encountered difficulties in its stated mission to “identify specific advocates that they could approach” to fill the lawyer-only board appointment, forcing Mr McKay to write directly to the Dean of the Faculty of Advocates himself, Richard Keen QC “for his help in encouraging applications” to join the SLCC. However, it appears the Scottish Government’s plea to the Faculty fell on deaf ears, and not one Advocate came forward to join the frequent flyers from the legal profession who are already rooted on the SLCC’s board.

The lack of interest from advocates in joining the SLCC became such a humiliation, the Scottish Government were forced to ask for an exception to the code of public appointments. An email from the Scottish Government to OCPAS, obtained as a result of a Freedom of Information request read : “The panel interviewed the candidate and considered them suitable for appointment. The Lord President has now confirmed that he is content to accept the Panel’s assessment that the candidate is appointed.“We confirm that the current SLCC lawyer round resulted in there being a lack of choice to fill the lawyer member position on the Board. A low response was not unexpected as the applicants for this appointment must be a advocate practising in Scotland and therefore the pool of candidates is very small. The appointing Minister [Kenny MacAskill] was informed of the situation and gave his approval for the appointment round to continue. I therefore request an exception to the Code to allow us to proceed with the round on that basis.”

Humiliation for MacAskill as “no Ministerial choice being achieved” in SLCC’s lawyer-only board member recruitment process. The OCPAS assessor who sat in on the Scottish Government’s recruitment process reported to her superiors, stating : “This appointment was for a lawyer member with the person specification requiring applicants to be an Advocate practicing in Scotland. This appointment was part of an appointment round also appointing non lawyer members but it was able to proceed on a separate timetable resulting in a much shorter timescale being achieved. This was achieved primarily because of the limited field of potential applicants and the targeted advertising and short application form used.”

“Historically it has been difficult for the Commission to attract Advocates to these appointments. The targeted advertising and short application form may have contributed to the outcome of an appointable candidate being recommended albeit with no Ministerial choice being achieved.”

The Justice Secretary chose to omit any reference to the lack of interest in joining the SLCC, and simply, announced Mr O’Carroll’s appointment in a quietly issued press release, stating : “Mr O'Carroll has extensive and varied advocacy experience. His breadth of experience and professional standing will complement and strengthen the current Board. This appointment will run for five years from a date which has still to be confirmed but likely to be sometime around March. This post is part-time and attracts a remuneration of £212 per day for a time commitment of up to six days per month.”

A senior source within the Scottish Government’s Justice Department speaking earlier this week to Diary of Injustice said : “This has been a face saving exercise for the Justice Secretary. If Mr O’Carroll had not been parachuted into the appointments process, there would have been no takers for the poisoned chalice of a position on the board of the SLCC.”

SLCC jobsThe SLCC announced in November it was looking for four ‘Frequent Flyers” to join its board : High Salaries & little work as a sweetener. The latest recruitment round for adding four additional “frequent flyers” to the Scottish Legal Complaints Commission’s board, where expenses claims are lavish, and work is minimal, were split into three positions earmarked for ‘non-lawyers’ with “consumer backgrounds” and one lawyer member’ who was “required to be a practising advocate”. I reported on the recruitment announcement in an earlier article of November 2010, here : Quangocrats wanted : Scottish Legal Complaints Commission seek ‘non-lawyer’ board members with legal & ‘consumer’ backgrounds at £209+ a day

Solicitors were apparently excluded from the latest ‘lawyer-only’ board member position because the SLCC felt it looked like there were too many solicitors, former solicitors & even non-practicing solicitors on its board already, namely Professor Alan Paterson OBE, FRSE, David Smith, Margaret Scanlan OBE & David Chaplin.

It is also noteworthy that much of the SLCC’s current staff who actually handle the complaints work, migrated over from the Law Society of Scotland’s Client Relations Office, itself which has been the focus of well founded accusations of corrupt self-regulation of solicitors and regular cover ups to protect ‘crooked lawyers’ from complaints lodged by financially ruined clients.

It will be interesting to see exactly who qualifies for the SLCC’s three new ‘non-lawyer’ positions, as the current crop of ‘non-lawyer’ board members comprises two ex-senior Police Officers, a member of the Scottish Criminal Cases Review Commission and a Doctor with several other quango positions including one at the Accounts Commission for Scotland. More details on the SLCC’s board members and their numerous positions can be found in an earlier article, here : More ‘jobs for the boys’ than action on ‘crooked lawyers’ : What it takes to be a Board Member at the Scottish Legal Complaints Commission

A legal insider speaking to Diary of Injustice this morning indicated observers of the SLCC may not be in for too much of a surprise in who will be appointed by the Justice Secretary to the three ‘non-lawyer’ positions currently on offer at £209+ per day along with additional expenses, for as little as six days work per month and lasting five years.

It is also worth bearing in mind that work is not a problem at the SLCC, as there isn’t much to do, which I revealed last month, here : ‘One complaint upheld’, 928 more sent back to Law Society & £1.8million spare cash : Scottish Legal Complaints Commission's 2010 annual report

Margaret Scanlan - Called to the Bars - Sunday Mail  15 March 2009 emailThe new quangocrats will have a chance to work with existing SLCC Board members already featured in newspapers for being ‘on the razzle’. The recruitment advertisement from the Scottish Government stated : “The Scottish Legal Complaints Commission (SLCC) requires 3 non lawyer members to become part of their Board with effect from February 2011. The successful candidates will be appointed by Scottish Ministers in consultation with the Lord President of the Court of Session.As a non lawyer member you will have the ability to apply objective and impartial judgement to the resolution of disputes, have the ability to offer guidance on one or more of the following Commission activities: regulation, consumer rights, consumer advocacy, consumer needs and have the ability to contribute to an effective team.”

The Scottish Government issued a statement in response to queries from Diary of Injustice about the latest failed SLCC appointments round. Their spokesperson said : "Mr O'Carroll was appointed following an open and transparent recruitment process regulated by the Scottish Commissioner for Public Appointments."

The Scottish Legal Complaints Commission issued a brief statement, saying : “All Members of the SLCC Board are Ministerial public appointments and are made in accordance with the Office of the Commissioner for Public Appointments in Scotland’s Code of Practice.”

Neither the SLCC nor the Scottish Government commented on allegations Mr O’Carroll ‘was volunteered for the appointment’, or revelations not one Advocate applied for the position other than one of the Government’s own lawyers.

Given the Scottish Legal Complaints Commission has only upheld one single complaint against an unknown solicitor or law firm in the past three years, I doubt the level of work will be much of a problem for any of the new recruits to the SLCC’s Board. Readers can find out just how effective the SLCC has been since it came into being, in my coverage of its 2010 annual report, revealed last month, here : ‘One complaint upheld’, 928 more sent back to Law Society & £1.8million spare cash : Scottish Legal Complaints Commission's 2010 annual report

My earlier coverage of the 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

Background to new ‘lawyer board member’ of the Scottish Legal Complaints Commission :

Maurice O'CarrollMaurice O’Carroll, appointed to the Scottish Legal Complaints Commission. Mr O'Carroll is a graduate of the University of Edinburgh who was admitted to the Faculty of Advocates in 1995. Prior to being called to the Bar Mr O'Carroll worked in Brussels for three years, initially with the European Commission and then with a commercial law firm specialising in international trade. Since 2002 he has been ad hoc Advocate Depute for the Crown Office and Standing Junior Counsel to the Scottish Government since 2003. He has a range of experience which includes planning inquiry work, public and administrative law, conducting employment tribunals and employment appeals tribunals, Inner House experience and providing opinions in relation to each of these areas.

Thursday, February 10, 2011

Why a lawyer should NEVER be his own judge : The limits of self regulation in Scotland’s legal profession which place lawyers interests before clients

SCCScottish Consumer Council’s 1999 report echoes today’s client concerns of poor legal services & calls to scrap lawyers self regulation. A REPORT published by the former Scottish Consumer Council twelve years ago in 1999, “Complaints About Solicitors” concluded many clients who complained about their solicitor to the Law Society of Scotland felt the entire complaints procedure was biased, unfair, and discouraging. The report went onto recommend fully independent regulation of Scotland's legal profession.

Most of those clients who managed to somehow survive the Law Society’s torturous complaints system, where some cases took years to be heard, feel to this very day the Law Society of Scotland is nothing short of a thoroughly corrupt self regulator which spares no expense to ensure lawyers, no matter the crime they have committed, retain their jobs, titles, wealth & privileged position while their clients are left blacklisted from access to justice, financially ruined, and in some reported cases involving claims against the Law Society’s Master Policy, ill or even dead.

The Scottish Consumer Council’s 1999 report “Complaints About Solicitors” stated in its conclusion : “This report provides considerable evidence of consumer dissatisfaction with the way in which complaints against solicitors are presently handled in Scotland, both by solicitors and by the Law Society. We believe that there is an urgent need for both to adopt a more client-oriented approach to dealing with complaints. Solicitors must embrace the concept of client care, which would help to reduce complaints, while at the same time ensuring a better deal for clients. The Law Society’s procedure contains many major flaws, and we have suggested a number of ways in which these could be remedied. Were these changes to be carried out, this would go some way towards improving the lot of consumers who complain about solicitors.”

The SCC report continued : “However, such changes would not go far enough. It is essential that complaints are dealt with by a body which is seen to be independent and impartial. Those who complain must be able to feel that their complaint has been fairly dealt with. It is clear that the fundamental root of the problem from the consumer’s point of view is that the Law Society is seen as being on the side of the solicitor. The only effective solution to the problem is the establishment of an independent review body to deal with complaints against solicitors in Scotland”

Today in 2011, the expectations & experiences of thousands of clients who complain to either the Law Society of Scotland or the less-than-independent Scottish Legal Complaints Commission remain unchanged, where most consumers who encounter difficulties with their solicitors view the Law Society & SLCC as little more than systems put in place by the legal profession to cover up complaints against their own colleagues, continuing the long held, if corrupt tradition that a lawyer is still his own judge.

Scottish Consumer Council recommended independent regulation of legal profession in 1999. Writing in the Scotsman newspaper in September 1999, the Scottish Consumer Council’s Sarah O’Neill went some way to explaining the conclusions of the SCC’s “Complaints About Solicitors” report, going onto recommend the Scottish Parliament’s then Justice & Home Affairs Committee study the issue, saying : “The SCC report concluded that there must be an open debate about the merits of establishing an independent complaints-handling body. We therefore recommend that the Scottish Parliament should review the current procedure with a view to establishing an independent body to deal with complaints about solicitors in Scotland. We would encourage the Justice and Home Affairs Parliamentary Committee to find time to examine this issue and reach a balanced conclusion. The Scottish Executive has told us it has no plans at present to change the current system.”

Ms O’Neill went onto say : “We would not recommend a particular model for an independent complaints-handling body. The Scottish Parliament should carefully consider all possible options, having carried out a thorough review of the current system, before making any firm decisions. Whatever scheme is introduced, however, it is essential that it is seen to be transparent, fair and above all, independent.”

Scotland on Sunday February 2001 - Legal Profession in the dock over complaints about self regulationThe newspaper Scotland on Sunday reported in 2001 there would be an investigation into regulation of the legal profession at Holyrood. Scots had to wait until 2001 before there was substantive movement at the Scottish Parliament to secure an inquiry into regulation of the legal profession, a move made possible only from the much appreciated efforts of the late Phil Gallie, then an MSP. Mr Gallie at the time sat on the Justice Committee and was eager to participate in the investigation, a prospect welcomed by many law reform campaigners, including particularly myself as Mr Gallie had written to me confirming the inquiry was to go ahead.

Regrettably however, the Scottish Conservative’s hierarchy & leadership were not too keen on this idea, so Mr Gallie was taken off his Shadow Justice portfolio and replaced by Lord James Douglas Hamilton in the Justice 1 Committee’s “Regulation of the Legal Profession” inquiry, which, under the Convenership of Christine Grahame MSP, mangled the issue so much, even forbidding public entry & testimony to some of the hearings, the only people to get a say in the matter were lawyers, lawyers, and more lawyers.

Scots had another wait until 2006, when the Justice 2 Committee of the Scottish Parliament was given the task of investigating changes to regulation of the legal profession with its consideration of the Legal Profession & Legal Aid (Scotland) Bill.

Would Granny Swear by the Law Society - The Herald June 5 2006Law Society Chief Executive Douglas Mill threatened legal action against complaints reform bill, also crossed swords with the SNP’s John Swinney. After a long year of bitter parliamentary hearings & debates, legal threats against the Scottish Executive & Scottish Parliament from the legal profession, public testimony & even evidence from now serving Government Ministers that the Law Society was a corrupt organisation, which regularly stage managed complaints & damages claims against ‘crooked lawyers’, the Scottish Parliament again mangled the issue, passing a butchered piece of legislation, the Legal Profession & Legal Aid (Scotland) Act 2007, which left the SNP to create the Scottish Legal Complaints Commission, a quango very far from independent, populated by lawyers, lawyers, more lawyers, a few ex lawyers, and a few ex senior Police Officers, with some quangocrats thrown in just for good measure.

The much-promoted-as-independent Scottish Legal Complaints Commission has, in its three years of existence, managed to uphold only one single complaint against an unknown solicitor or law firm, the remainder being handed back to the Law Society of Scotland for its own style of ‘crooked’ self regulation, you know, the one where the lawyer is his own judge …

So as things currently go, the position we remain in is that lawyers in Scotland are still their own judges. Clearly this is not what consumers of today’s world expect when they are forced into a position of having to make a complaint about their solicitor, not is it what was intended from all those numerous reports published by the Scottish Consumer Council, and even, dare I say, Consumer Focus Scotland over the many years which have passed.

The Scottish Consumer Council’s 1999 report “Complaints About Solicitors” stated in its conclusion : “This report provides considerable evidence of consumer dissatisfaction with the way in which complaints against solicitors are presently handled in Scotland, both by solicitors and by the Law Society. We believe that there is an urgent need for both to adopt a more client-oriented approach to dealing with complaints. Solicitors must embrace the concept of client care, which would help to reduce complaints, while at the same time ensuring a better deal for clients. The Law Society’s procedure contains many major flaws, and we have suggested a number of ways in which these could be remedied. Were these changes to be carried out, this would go some way towards improving the lot of consumers who complain about solicitors.”

The SCC continued : “However, such changes would not go far enough. It is essential that complaints are dealt with by a body which is seen to be independent and impartial. Those who complain must be able to feel that their complaint has been fairly dealt with. It is clear that the fundamental root of the problem from the consumer’s point of view is that the Law Society is seen as being on the side of the solicitor. The only effective solution to the problem is the establishment of an independent review body to deal with complaints against solicitors in Scotland”

The Scottish Consumer Council recommended in it’s 1999 report : “A Scottish Parliament should establish a review of the Law Society of Scotland’s complaints procedure, with a view to establishing an independent complaints body to deal with consumer complaints against solicitors in Scotland.”

The SCC went onto say : “We believe that such a review should be an urgent priority for a Scottish Parliament, in the interests of consumer protection. This review should involve an examination of best practice in complaints handling in other fields. All possible options, including statutory regulation and a non-statutory ‘arms-length’ scheme, should be carefully considered by the parliament.”

The Scottish Consumer Council’s 2001 report “The limits of self regulation in the legal profession” went on to state : “It has been the Scottish Consumer Council’s position for many years that complaints against solicitors in this country should be handled by an independent body, because this is necessary to ensure that there is public confidence in the impartiality of the complaints process.”

The 2001 report further stated : “The Law Society’s procedure continues to be run by solicitors, for solicitors. The existence of lay members on the complaints committees cannot by itself ensure independence. A large number of complaints do not even get as far as being considered by a committee because they are disposed of administratively by Law Society staff before then.”

Now, eleven years on, in spite of all which has passed at the Scottish Parliament, nothing has changed, mainly because the Law Society of Scotland has continued to intercept & interdict any effort to reform regulation of the legal profession, and of course, msps have allowed it.

Indeed, the Law Society of Scotland is as anti-client, & anti-consumer as ever, and their complaints system has not changed one bit. The Scottish Solicitors Discipline Tribunal, that alleged second tier of impartial prosecution of ‘crooked lawyers’ has also not changed. The SSDT’s habit of whitewashing even the worst cases of solicitor misconduct, negligence, poor service, or even criminality, has remained as constant as the numbers of ‘crooked lawyers’ getting a slap on the wrist.

Right at the heart of the Scots justice system, the Scottish Courts policy towards sidelining or discouraging cases involving the pursuit of ‘crooked’ or negligent lawyers has not changed, and to make matters worse, the Scottish Executive’s policy on regulation of the legal profession has actually regressed to the point it now advocates a stronger view for lawyers regulating themselves even more so than lawyers do. It is of course now well known, the ‘independent’ Scottish Legal Complaints Commission, the supposed new broom as a result of Holyrood’s intervention to clean up complaints against solicitors, has only managed to uphold one single complaint in its three years of existence, is not independent, not one bit.

However, what has stayed the same is the frequency of letters sent to msps by constituents who encounter difficulties with the legal profession, the Law Society of Scotland, and now, difficulties with the Scottish Legal Complaints Commission, yet it appears msps again do not want to give Scots a fully independent complaints system for legal services which now operates in other parts of the UK.

Clearly a new campaign is in need of being launched to end self regulation of the legal profession, and bring to an end the deadly era where lawyers are their own judges.

Those who are interested in campaigning on the issue of removing self regulation of the legal profession may wish to & should read some of the earlier Scottish Consumer Council reports on regulation of the legal profession, which can be viewed online or downloaded in pdf format at the following links :

The limits of self regulation in the legal profession (Scottish Consumer Council) 2001

Complaints Against Solicitors (Scottish Consumer Council) 1999

Getting the best from your solicitor (Scottish Consumer Council) 1994

I'm not happy with my solicitor (Scottish Consumer Council) 1986

Tuesday, February 08, 2011

Consumer Focus Scotland refuse to support petition’s call to repeal ‘anti-consumer’ laws allowing lawyers to investigate complaints against themselves

Consumer Focus Scotland logoConsumer Focus Scotland’s response to Holyrood Petitions Committee gives qualified support for self regulation. IN a letter to the Scottish Parliament’s Petitions Committee, Consumer Focus Scotland have refused to support a public petition which calls for the scrapping of lawyers powers to investigate themselves.

The consumer body even went so far as to give a ‘qualified support’ to the Law Society of Scotland’s powers of self-regulation over complaints, powers which are backed up by the infamously anti-consumer Solicitors (Scotland) Act 1980, the Westminster enacted thirty year old legislation which allows Scottish solicitors to investigate & cover up complaints against their own colleagues.

While it is now clear the Law Society of Scotland retains its iron grip over self regulation of complaints with the apparent support from most ‘official quarters’ including the Scottish Government & even some consumer bodies, it is of note solicitors in England & Wales now face a more rigorous independent regulation in the form of the Legal Ombudsman.

Law Society of ScotlandLaw Society of Scotland’s interests conflict with public. While supporting the retention of self regulation of complaints against solicitors, Consumer Focus Scotland said in their letter to msps there were ‘tensions within the Law Society’s dual role of representing the public & the legal profession, stating that “while often the interests of the profession and the public may be the same, there will be times when they conflict”, the consumer body (which has been scheduled for closure by the Westminster coalition Government) told msps it does not support the aims of a public petition, Petition PE1388, which calls for repeal of the anti-consumer Solicitors (Scotland) Act 1980 and even went onto say, staggeringly, it felt “self-regulation brings a number of benefits to consumers”, despite most evidence pointing to the contrary.

Consumer Focus Scotland’s submission to the Petitions Committee in response to Petition PE1388 falls broadly into line with two earlier submissions to the Petitions Committee, one from the Law Society of Scotland, which I featured here : Law Society ‘warns’ Scottish Parliament : Solicitors (Scotland) Act 1980 ‘should not be repealed’ by msps or Scottish Government, and a statement from the Scottish Government who refuse to become involved in the aims of the petition, here : Solicitors (Scotland) Act 1980 : Scottish Government refuse to repeal Law Society’s self regulating powers of lawyers investigating themselves

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

Consumer Focus Scotland’s full response to the Petitions Committee concerning Petition PE1388, can be downloaded from the Scottish Parliament’s website, HERE (pdf) and is reprinted in full, below :

Consumer Focus Scotland welcomes the opportunity to submit evidence on this petition. Both Consumer Focus Scotland and the Scottish Consumer Council (SCC), one of our predecessor bodies, have had significant involvement over many years in the issue of the regulation of the legal profession. Following the passing of the Legal Services (Scotland) Act 2010, we are no longer actively working on this issue, however we are happy to provide evidence given our history of work in this area.

Self Regulation of the Legal Profession

Consumers who use solicitors do so at important and often stressful and difficult times in their lives. They place important transactions in the hands of their solicitors, and if things go wrong with that relationship it can have a devastating effect on client confidence. Where dissatisfaction does arise, consumers need to have no doubt about the impartiality of the regulatory system under which solicitors operate.


Scotsman 8 January 1999 Independent watchdog for lawyers proposedThe Scottish Consumer Council proposed an independent watchdog for solicitors in 1999. 2011 and still no sign of any independence in legal complaints regulation. In 1999, the SCC published research into the experiences of those who had complained to the Law Society of Scotland (‘the Society’) about a solicitor. Half of those who responded believed that their complaint had not been handled fairly. The detailed responses revealed a clear perception that the Society was not impartial in its handling of complaints, appearing to take the side of the solicitor. Following the publication of the research, the SCC campaigned for a number of years for the establishment of an independent body to deal with complaints against solicitors, to ensure that the public has confidence in the legal system. It welcomed the establishment of the Scottish Legal Complaints Commission (‘the Commission’) by the Legal Profession and Legal Aid (Scotland) Act 2007.

While the Society retains its role in investigating conduct complaints, some of its previous practices which created the impression that the complaints process was weighted in favour of solicitors and as such had given SCC serious concern, have been changed and significantly improved. Nevertheless, our preference would be for the Commission to have responsibility for investigating all complaints against solicitors, not just service complaints. The distinction between the various types of complaint is not always clear, even to solicitors, and members of the public cannot be expected to distinguish between them. We have expressed concerns that unless all complaints are dealt with by the Commission, there will continue to be a lack of public confidence in the complaints system.

Other Regulatory Matters

Regulation of the legal profession does, of course, go beyond complaints handling and covers a wide range of work to promote and maintain high standards for solicitors and their clients such as the setting of standards of qualification, education and training. The petition suggests that self-regulation, and particularly the conflict between the Society protecting its members and acting in the public interest, is detrimental to the public interest. While it is clear there is the potential for conflict between the representative and regulatory functions of the Society, we believe that self-regulation brings a number of benefits to consumers. These include:

• The regulatory system will be tailor made for the needs and problems of that particular sector, and will reflect inside knowledge about the realities of that sector

• The benchmarking of best practice over and above the basic minimum requirements

• Self-regulation is quicker and less costly to put in place (and adapt to changing needs) than legislation.

However, our support of self-regulation by the legal profession (other than for investigation of complaints) is qualified. The SCC produced a good practice guide on effective self-regulation, which made clear that one of the key principles of a credible self-regulatory scheme is independent representation on its governing body.

We have regularly expressed concerns about the current levels of independent representation on the Society’s Council, believing these arrangements to reflect the interests of a membership body, rather than a regulator in the public interest. Our position throughout the passage of the Legal Services (Scotland) Act 2010 (‘the 2010 Act’) was that if the legal profession is to remain self-regulating (or co-regulating), a change of governance structure (of both the Society and the Faculty of Advocates ) is required to instil public confidence in the regulatory functions of these bodies.

We therefore fully supported the establishment within the 2010 Act of a regulatory committee of the Law Society of Scotland, with at least 50 per cent non-solicitor membership and a non-solicitor convenor. We believe creating a regulatory committee with significant non-solicitor involvement gives the Society the opportunity to demonstrate clearly that it is acting in the public interest in carrying out its regulatory functions. We would also note that the 2010 Act requires the Society, so far as practicable when exercising its regulatory functions, to act in a way which is compatible with the regulatory objectives outlined in the Act. These include protecting and promoting the interests of consumers and the public interest generally and promoting access to justice.

The independence of the regulatory committee will be an important tool in ensuring public confidence in its regulatory functions and we were pleased that provisions were inserted into the 2010 Act to ensure that the Society’s Council must not interfere unduly in the regulatory committee’s business.

The provisions of the Solicitors (Scotland) Act 1980 (as amended), which set out the Society’s role in the regulation of solicitors, provide an important consumer protection. It is critical that there is a robust regulatory framework in place to protect consumers should things go wrong. While we have been critical in the past of the Society’s regulatory regime, we believe the changes being introduced by the 2010 Act should lead to increased public confidence, transparency and effectiveness in the regulatory process. This Act is not yet in force, however, and we believe it is important that an opportunity be given to demonstrate whether these changes do lead to such improvements.

For this reason we do not support the petition’s suggestion that the Scottish Government should repeal the Solicitors (Scotland) Act 1980 to end self-regulation of the legal profession. Should this restructuring of the Society’s governance arrangements and the application of the regulatory objectives not act to improve public confidence in its regulatory functions, however, we believe the dual regulatory and representative roles of the Society should be reviewed.

Tensions in the Law Society’s Dual Roles

We do, however, have some sympathies with the issues raised by the petition, particularly in relation to the tensions that may result from the Society’s duties in relation to the profession and the public. As detailed within the petition, by virtue of section 1(2)(b) of the Solicitors (Scotland) Act 1980, the Society has a duty to promote the interests of the solicitors’ profession in Scotland, and to promote the interests of the public in relation to that profession. While often the interests of the profession and the public may be the same, there will be times when they conflict.

While the changes to the membership of the regulatory committee outlined above will enable the Society to more clearly demonstrate it is acting in the public interest, we believe there also requires to be significant non-solicitor involvement in the Society’s representative functions. In a press release issued by the Society in March 2010, it outlined examples of its ‘representative’ functions, including several which have a clear consumer or wider public interest.

Master Policy Report Suicides revealedLaw Society of Scotland’s Master Policy was revealed in an independent report to have caused consumers to have committed suicide. One such example is tendering and securing the Master Policy for professional indemnity insurance. The Master Policy provides clients with protection from losses caused by their solicitor’s negligence and therefore is of clear consumer interest. We would also see the representative functions of preparing best practice guidelines and the ‘Find a Solicitor’ tool as key means of the Society fulfilling its statutory duty to promote the public interest in relation to the profession.

We therefore think it is entirely appropriate that the representative functions of the Society be undertaken by a Council which contains non-solicitor membership. We have for a long time maintained that it is a considerable drawback for a professional organisation with a statutory responsibility to promote the public interest that its decision making body has no non-solicitors among its membership.

While section 132 of the 2010 requires the Society to make provision for the appointment of non-solicitor members to the Council, sections of the original Bill which would have given Scottish Ministers the ability to make regulations specifying the number of non-solicitor members on the Society’s Council were removed at Stage 2, following concerns that this could be perceived as compromising the independence of the profession. While we expressed some concern about removing these provisions, we acknowledged that the Society has publicly committed to appointing 20% of its Council membership as non-solicitors.

Although we would prefer this figure to be 50%, in keeping with the provisions relating to the Society’s regulatory committee, this represents a significant improvement on the current position. We believe these are important and necessary changes in order for the public to have confidence in the Society’s role of promoting the public interest. It is our understanding, however, that any proposed changes to the Society’s constitution are subject to approval by the profession at the Society’s Annual General Meeting in March 2011. Should the profession not accept a minimum of 20 per cent non-solicitor membership on the Society’s Council, we believe there would be merit in the Scottish Parliament revisiting this issue.

Readers can find out more about the Law Society of Scotland’s Master Policy and the havoc it has caused for consumers, to the point some have committed suicide, in an earlier article here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night'

An excerpt of the earlier article reported :

Page 8 - Consumer Focus Scotland refused cooperation from Law SocietySuicides, illness, family breakdown, loss of homes, loss of livelihood were all identified by interviewees as being directly associated with members of the public’s dealings with the Law Society & Master Policy. During the research team's investigation of claims against the Master Policy, team members were told of suicides which had occurred due to the way in which clients of crooked lawyers had been treated by the Law Society of Scotland and the insurers who operate the Master Policy protection scheme for solicitors against negligence claims. Quoting the report : "Several claimants said that they had been diagnosed with depression; that they had high blood pressure; and several had their marriages fail due to their claim. Some had lost a lot of money, their homes, and we were told that one party litigant had committed suicide."

Further excerpts from the Manchester University report into the Law Society's Master Policy & Guarantee Fund show the intolerable strain clients who attempt to claim against their 'crooked' solicitor have to endure : Claimants "described being intimidated, being forced to settle rather than try to run a hearing without legal support, and all felt that their claims’ outcomes were not fair. Some claimants felt that they should have received more support, and that this lack was further evidence of actors within the legal system being “against” Master Policy claimants. Judges were described as being “former solicitors”, members of the Law Society – and thus, against claimants. Some described judges and other judicial officers as being very hostile to party litigants." yet it appears msps do not care, as long as they are able to sleep as easily at night as their Law Society sponsors.

A campaigner speaking to Diary of Injustice this morning said he felt Consumer Focus Scotland could have said more with regard to the way many people have been treated at the hands of the Law Society of Scotland’s complaints system, but he accepted there was little appetite among msps on the Petitions Committee to do anything for victims of the legal profession.

He said : “MSPs are just not interested in doing anything positive for consumers of legal services in Scotland on the complaints & regulation front. They either fear or are already bought off by the Law Society of Scotland’s lobbying powers and the many other arms of the legal profession which they prefer to keep as friends rather than actually do something for us ordinary folks.”

A Holyrood insider speaking to Diary of Injustice this afternoon indicated there was little prospect of the Petitions Committee or the Scottish Parliament ever considering a repeal of the Solicitors (Scotland) Act 1980.

He said : “Petitions which concern the Law Society of Scotland and the legal profession’s handling of complaints are effectively binned before they are even opened by the PPC for consideration.”

Citizens Advice Scotland are yet to send in their requested response to the Petitions Committee.