Cats & Doughnuts : Lawyers challenge to legal aid cuts struck down by Holyrood Committee while Law Society claims ‘public interest is at it’s heart’

Representatives of the Glasgow Bar Association ‘hotly’ contest Law Society backed cuts to legal aid fees & access to justice. TESTIMONY from members of the Glasgow Bar Association & officials from the Law Society of Scotland at this week’s Tuesday session of the Scottish Parliament’s Justice Committee over the Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2011, which propose a 25% cut in legal aid fees to Glasgow solicitors, raised some interesting viewpoints as to the credibility of the Law Society as a representative & regulatory body for both solicitors & the public.

The debate, which featured solicitors David O’Hagan & Gerry Sweeney appearing for the Glasgow Bar Association, and ‘access-all-areas’ Michael Clancy & Andrew Alexander appearing for the Law Society of Scotland, took place after a motion was lodged by James Kelly (Scottish Labour) recommending annulment of the of the Scottish Government’s proposal to cut 25% off the fees for attending Glasgow’ Stipendiary Magistrates Courts where solicitors currently earn £515 for each case. The proposed cut will leave that fee at £390.

The motion by Mr Kelly to annul the legal aid cuts affecting the Stipendiary Courts was defeated on a 5-4 vote after the Justice Committee Convener, John Lamont used his casting vote to decide the issue.

In the money : Lawyer v Lawyer at Scottish Parliament’s Justice Committee over cuts to legal aid fees. Pity they wouldn’t expose the Master Policy & Law Society anti-consumer policies in the same terms (Click images to watch video footage)

Part 1 :

Part 2 :

The lively, if at times tedious debate between solicitors, the Law Society & msps who appear to blur into a striking similarity with each other, lasts nearly fifty minutes and the verbatim account of the proceedings can be viewed at the Scottish Parliament’s website, here : Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2011 (SSI 2011/162).

Much of the debate is about legal aid fees which lawyers pick up for appearing at Glasgow’s Stipendiary Magistrates Courts along with claims the Law Society has failed to represent the interests of Glasgow solicitors over the legal aid cuts. There is, sadly, little in the proceedings for those who are campaigning for fully independent regulation of the legal profession, or any mention of ideas along the lines of those I have proposed for years, and featured again earlier in the month, HERE.

As the debate closed, it should be noted the final say went to the Law Society of Scotland, where the well known Michael Clancy made some rather unconvincing claims about how the Law Society has ‘the public interest at heart when thinking about access to justice issues’.

According to the Scottish Parliament’s Official Report of the meeting, Michael Clancy said : “The society has a statutory obligation to promote the interest of the solicitors profession and the interests of the public in relation to that profession. Of course we have the public interest at heart when thinking about access to justice issues. The internal management of our committees is another matter… It is unfortunate to suggest that the society does not have access to justice concerns at its heart. We deal with people, too. We deal with people who are solicitors and people who are solicitors' clients. We accept that they are complex and human individuals, just as much as we are. We are not just statistical policy wonks.”

You must be kidding, Mr Clancy. No one outside the Law Society of Scotland’s sphere of influence believes this.

Of course, we should be under no illusions about the terms of this debate. Its about money, much more so than regulation or the or creation of separate organisations to represent solicitors & clients best interests.

The now well publicised bickering within the legal profession on the subject of legal aid cuts, which has led to several resignations from the Law Society’s Council reported by Scottish Law Reporter HERE, HERE and HERE along with several features in The Herald newspaper such as HERE, HERE HERE and HERE, seems to have spilled out into public after a Law Society Committee proposed, among other things, the merging of the Scottish Legal Aid Board and the Scottish Legal Complaints Commission, which was reported HERE and, with the suggestion that “putting solicitors in charge of their own legal aid payments as "like putting Homer Simpson in charge of a doughnut factory", HERE

One of the protagonists in the debate, the well known Mike Dailly of the Govan Law Centre wrote on his blog in the independent Scottish legal publication “The Firm” earlier this week in a posting entitled “8 out of 10 cats” : “Dual regulatory and representative functions are incompatible. All of the discord and disharmony we have in Scotland's legal profession; and the concern or distrust that many members of the public have for lawyers; flows from this inherent conflict. Which is why we need an independent statutory regulator of legal services in Scotland - not for solicitors (and the oft-quoted poll of how 8 out of 10 of solicitors prefer the Law Society) but because the public interest demands it. Likewise, Scottish solicitors like any other worker should be able to choose their own trade union. It's that simple. If you fix this blockage, everything else will work.”

He continued : “Let's face the truth. The people of Scotland deserve an independent statutory regulator of legal services; and Scotland's solicitors should be entitled to choose who represents them.”

Yes this is very true. However, if this is really to happen, as consumers, campaigners and even some solicitors now recognise, all of us will have to come together to debate & argue for this cause at the Scottish Parliament and in public with the same veracity as the Glasgow Bar Association are arguing their corner over the legal aid fee cuts.

A few solicitors & advocates trading doughnuts, a few insults, and throwing street-wise moggies at each other over the issue will not get the job done.

However, if the public were to be more widely engaged on the debate, and particularly those with experience of dealings with the Law Society on a wide range of issues (including regulation) allowed to speak, the Scottish Parliament & Scottish Government may finally have to listen and be made to understand the present system of the Law Society of Scotland ruling over all it sees, does not work.

If anyone is up for campaigning for necessary & real changes to the legislation which governs those who represent the public and the legal profession, you know where to reach those who share the same views .. if not, well it just wont happen any time soon. Capisce ?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

£70K Chief Executive ‘missing for 6 months’ at Scottish Legal Complaints Commission as Justice Secretary dodges questions on scandal-hit law quango

Justice Secretary Kenny MacAskill. KENNY MACASKILL, Scotland’s Justice Secretary remained as tight lipped as ever in answers to questions raised in the Scottish Parliament over the abysmal performance of the SCOTTISH LEGAL COMPLAINTS COMMISSION, once hoped by many to repair much of the scandal surrounding the Law Society of Scotland’s notoriously corrupt closed shop client complaints process against its member solicitors, which has seen thousands of consumer complaints against Scottish lawyers swept under the carpet each year by the legal profession’s own self regulator.

James Kelly MSP for Glasgow, Rutherglen (Labour) James Kelly MSP, Labour MSP for Glasgow Rutherglen and a member of the Scottish Parliament’s Justice Committee put several questions to the Scottish Government on issues of performance, expenses, budget and costs of the Scottish Legal Complaints Commission, which were answered by Justice Secretary Kenny MacAskill, who appointed the current board & staff to their positions at the SLCC.

£2million of taxpayers money was lavished on the Scottish Legal Complaints Commission. Amid calls for the SCLCC to be made to pay back , the public purse its massive formation costs, from its huge reserves of £1.5 million, the Justice Secretary refused to answer any questions relating to budget, expenses & costs of the Scottish Legal Complaints Commission, and simply stated any such enquiries should be made directly of the SLCC itself. Mr MacAskill in his replies to Mr Kelly appeared unwilling to disclose to Parliament, the millions of pounds of public funds lavished on the expensive, anti-client law complaints quango, which has now drained up to £2million from the public purse.

The Justice Secretary also refused to confirm the extent of the SLCC’s massive surplus funds of £1.5 million, which are now also the subject of criticism from the Law Society of Scotland & the Faculty of Advocates.

SLCC Board members claim staggering amounts of money on expenses while employed in other quango jobs at public expense. I reported on the extent of the costs to the taxpayer of the Scottish Legal Complaints Commission in an earlier article. here : Scottish Legal Complaints Commission refuse to repay £1.7million public funds as board member revealed to sit on Govt. Accounts scrutiny quango. In that article I revealed some of the SLCC’s members were claiming up to £15K a year in expenses while holding other well paid quango positions and ‘advisory roles’ to Scottish Government organisations.

Also in an earlier article I covered the SLCC’s annual report, which revealed it had done little work on complaints, preferring to pass most complaints back to the Law Society of Scotland : Scottish Legal Complaints Commission reveals it passed most complaints about lawyers back to Law Society, has failed to act on Master Policy report

SLCC’s website ‘changed overnight’ after questions were raised at Holyrood over its performance & cost to taxpayers. While Justice Secretary MacAskill avoided disclosing much in the way of details in his answers to the parliamentary questions set by Mr Kelly, the Scottish Legal Complaints Commission appeared to shake itself up somewhat, publishing all minutes of meetings since July 2009 which it had previously withheld from publication. The SLCC’s Board Minutes for 2009, and those available for 2010 now published in albeit ‘redacted’ form, can be downloaded here : SLCC 2009 Board meetings & here : SLCC 2010 Board meetings

SLCC Chief Executive Eileen Masterman on a staggering £1350 a week, now absent for 6 months. The SLCC’s meetings from November 2009 onwards reveals its Chief Executive, Eileen Masterman, on a salary of £1350 a week, has apparently been absent from Board meetings and her post since late November 2009, being replaced temporarily in December 2009 by the SLCC’s Chair, Jane Irvine who from papers appeared to take on the Acting CEO role, which was then passed onto the SLCC’s Rosemary Agnew, according to the Board minutes for January 2010.

The Scottish Legal Complaints Commission were asked for comment on Eileen Masterman’s absence as CEO, however at time of publication have not replied to media enquiries …

The questions raised by James Kelly MSP to the Scottish Government regarding the Scottish Legal Complaints Commission :

James Kelly (Glasgow Rutherglen) (Lab): To ask the Scottish Executive what plans it has to review the performance of the Scottish Legal Complaints Commission.

(S3W-32561)

Kenny MacAskill: We have no plans to carry out a review of the Scottish Legal Complaints Commission at this time. It is too early to assess the effectiveness of the commission as it has only been operational since October 2008 and transitional processes remain ongoing.

Under the Legal Profession and Legal Aid (Scotland) Act 2007, the commission is required to publish a report, as soon as practicable after the end of the financial year, reporting on the discharge of its functions in that year and such action as the commission proposed to take in the following year. Scottish Ministers laid their 2008-2009 Annual Report in the Scottish Parliament on 8 February 2010.

James Kelly (Glasgow Rutherglen) (Lab): To ask the Scottish Executive what discussions it has had with representatives of the Scottish Legal Complaints Commission since its inception and regarding what issues.

(S3W-32562)

Kenny MacAskill The Scottish Government has been in regular contact with the Scottish Legal Complaints Commission on a range of issues such as the appointment of board members, the publication of the Commission's annual report, the Legal Services (Scotland) Bill and the transitional arrangements for complaints relating to the time before the Commission’s inception. Such discussions have been conducted on the basis that the Commission is largely independent of Government in how it fulfils its statutory responsibilities.

James Kelly (Glasgow Rutherglen) (Lab): To ask the Scottish Executive what the cost has been to the Scottish Legal Complaints Commission of complaints that it has itself investigated.

(S3W-32563)

Kenny MacAskill: The Scottish Legal Complaints Commission is responsible for setting its budget and any questions about its costs and spending should be directed to the Commission.

James Kelly (Glasgow Rutherglen) (Lab): To ask the Scottish Executive how much the Scottish Legal Complaints Commission has received from levies paid by the legal profession in 2009-10 and, of that income, how much has been spent on (a) running costs and (b) investigations.

(S3W-32564)

Kenny MacAskill: The Scottish Legal Complaints Commission is responsible for setting the levy and any questions about this should be directed to the Commission.

James Kelly (Glasgow Rutherglen) (Lab): To ask the Scottish Executive whether the Scottish Legal Complaints Commission has a budget surplus.

(S3W-32565)

Kenny MacAskill: The Scottish Legal Complaints Commission is responsible for setting its budget and any questions relating to this should be directed to the Commission.

James Kelly (Glasgow Rutherglen) (Lab): To ask the Scottish Executive who monitors the expense claims of board members of the Scottish Legal Complaints Commission.

(S3W-32566)

Kenny MacAskill: The Chief Executive of the Scottish Legal Complaints Commission is the accountable officer and is responsible for ensuring the propriety and regularity of the finances of the Commission and questions relating to financial monitoring should therefore be referred to the Commission.

The Commission is subject to audit by the Auditor General for Scotland and is required to lay the audited statement of accounts before the Scottish Parliament.

James Kelly (Glasgow Rutherglen) (Lab): To ask the Scottish Executive what the total amount of expenses paid to board members of the Scottish Legal Complaints Commission (a) was in 2008-09 and (b) has been in 2009-10.

(S3W-32567)

Kenny MacAskill: The Scottish Legal Complaints Commission is responsible for setting its budget and questions about its spending should be addressed to the Commission.