Unsigned letters from the Scottish Government, the Chair of an 'independent' review group dominated by lawyers, and the pro-lawyer Scottish Legal Complaints Commission (SLCC) - call on members of the Scottish Parliament’s Public Petitions Committee to wait until the end of a two year review – conducted by lawyers - before MSPs conduct any independent investigation of lawyers investigating themselves.
A letter from the SLCC states: “The SLCC is certainly confident that the independent review of legal regulation will actively consider the issues we have been raising over the last 18 months, and which the petitions support from a public perspective, and look forward to the final report on these complex issues currently expected in July 2018.”
However, in reality the issues raised by the SLCC in a report titled “Reimagine Regulation” do little for consumer protection, leaving complaints and investigations firmly in the hands of lawyers, as was reported last year, here: ROGUES REIMAGINED: Scottish Legal Complaints Commission calls on Scottish Government to reform “complex and legalistic” solicitors' self regulation & complaints system
Meanwhile, representations from the Scottish Government, and an unsigned letter from the Chair of a lawyer dominated review panel - are careful not to demand outright, but infer MSPs halt their consideration of calls to scrap the historically biased system of self regulation of lawyers in Scotland.
The latest submissions from the three pro-lawyer groups come in the wake of a call for evidence by the Scottish Parliament’s Petitions Committee on two public petitions seeking to replace self regulation of the legal profession in Scotland with fully independent regulation of legal services – as occurs in England & Wales.
In September, MSPs called for views on bringing Scotland into line with the rest of the UK – where a much greater independent level of legal regulation exists compared to the current Law Society of Scotland & SLCC pro-lawyer regulation model.
Petition 1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission with a view to making the process of legal complaints more transparent and independent.
Petition 1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, Legal Ombudsman, Bar Standards Board and Solicitors Disciplinary Tribunal which serve consumers and clients of legal service providers in England and Wales.
Earlier this year, former Cabinet Minister Alex Neil MSP (SNP Airdrie and Shotts) said the ‘independent’ review created by the Scottish Government, should include judges - and the membership of the review team should be expanded to balance up the panel’s current top heavy legal interests membership.
In another development, Alex Neil recently branded the Scottish Legal Complaints Commission (SLCC) “a toothless waste of time” – after the legal services regulator failed to act in a high profile case involving a senior QC – John Campbell – who is caught up in a cash payments scandal - which has since led to information provided to journalists on other Advocates & QCs who have demanded & pocketed substantial and apparently undeclared cash sums from clients.
During the debate on the two petitions – on 21 September - members of the Public Petitions Committee agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland, the Faculty of Advocates, Scottish Solicitors' Discipline Tribunal, Citizens Advice Scotland and the Judicial Complaints Reviewer.
It is also open for anyone else to put their views to the Petitions Committee on these petitions, or for constituents to request their MSPs submit material on their constituents behalf.
Regulation of legal profession reform - Public Petitions Committee 21 September 2017
Legal Profession (Regulation) (PE1660 & PE1661)
The Convener: The next two new petitions are PE1660 by Bill Tait and PE1661 by Melanie Collins, both of which raise similar issues in relation to the current system for complaints about legal services in Scotland. Members have a copy of the petitions and the respective SPICe briefings.
PE1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission to make the process of legal complaints more transparent and independent. PE1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, the Legal Ombudsman, the Bar Standards Board and the Solicitors Disciplinary Tribunal, all of which serve consumers and clients of legal service providers in England and Wales.
Do members have any comments or suggestions for action on the petition?
Michelle Ballantyne: First of all, I note that there is a review under way. However, although it was launched in April, it is not due to report until the end of next year, which seems an awfully long time.
I am concerned about a turkeys voting for Christmas arrangement with regard to oversight of this matter. There needs to be some clear water between lawyers and those who review them, and this feels a bit close for comfort. We should check where the review is going and what it is looking at, because if it has been launched, the question is whether we need to be doing something parallel alongside it.
Angus MacDonald: Both petitions are extremely timely. Bill Tait and Melanie Collins have highlighted serious issues with regard to the legal profession and the way in which the SLCC operates in respect of complaints. I agree with Melanie Collins that there is a strong argument in favour of creating a new independent regulator of legal services, and I agree with Bill Tait’s call to make the process of legal complaints more transparent and independent.
In recent years, we have seen a degree of conflict between the SLCC and the Law Society of Scotland over the operation of the complaints system. I am sure that I was not the only MSP to receive representations from the Law Society earlier this year, stating frustration and disappointment at the increase in the SLCC levy to be paid by solicitors. It also stated that the complaints system was slow, complex, cumbersome and expensive. There is no doubt in my mind that this is the right time to look at this issue.
As Michelle Ballantyne has mentioned, the Scottish Government has acknowledged that the current process for people wishing to make complaints about their solicitor is too slow and complex, so I was certainly pleased to see the Scottish Government launch its independent review of the regulation. However, I take on board Michelle Ballantyne’s point about the review not being due to report back until the end of 2018; the period seems quite lengthy, but clearly, we can contact the Government for clarification. Given the similarity of the two petitions, there is a strong argument for joining them together to help move them forward.
The Convener: First of all, does the committee agree to join the petitions together? It seems to me that they deal with the same issues.
Members indicated agreement.
Brian Whittle: Am I correct in thinking that the Law Society called for a change and was rebuffed?
Angus MacDonald: I am not entirely sure—it certainly was not happy.
Rona Mackay: It was about the levy. It was not happy with some of the SLCC’s operation, but, as far as I am aware, it has not formally called for a change.
Brian Whittle: I thought that it was investigating this very point and was rebuffed. I might be wrong.
The Convener: It would be worth getting it clear in our own heads where all of this stands. We can obviously ask for that information.
The suggestion is that we write to the Scottish Government about the review’s timescale and remit, and I think that we should write to the relevant stakeholder bodies to ask about what issues they have. It does not feel that long since the legislation was passed, so it would be a natural time to look at and reflect on whether it has been effective and what the alternatives might be. My sense is that, when the legislation went through Parliament, we wrestled with the options—it did not go through without debate. Perhaps we should look at whether this is a bedding-in issue or an actual structural problem and whether, as the petitioner suggests, the issue needs to be revisited and a different kind of regulatory body put in place.
I think that we have agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland and the Faculty of Advocates. Citizens Advice Scotland was mentioned, as was the Scottish Solicitors Discipline Tribunal. Are there any others?
Angus MacDonald: Would it be worth contacting the Judicial Complaints Reviewer? Although it deals with judicial complaints, as per the title, it would be good to get its view, if it has one. Of course, it is not compelled to reply.
The Convener: Do we agree to deal with both petitions in that way?
Members indicated agreement.
The latest submissions from the Scottish Government, the Chair of the Independent Review of the Regulation of Legal Services and the Scottish Legal Complaints Commission, are reprinted below:
PE1660/E & PE1661/E Scottish Government submission of 6 November 2017
I refer to your letter dated 28 September 2017 seeking the Scottish Government’s views on petition PE1660 by Bill Tait with regards to the operation of the Scottish Legal Complaints Commission, and petition PE1661 by Melanie Collins regarding amending the regulation of the complaints about the legal profession.
The independent review of the regulation of legal services, announced in April 2017, has been set up to look into these matters and that we understand that the chair, Esther Roberton, will be responding to the committee separately.
The chair is due to report to Ministers by the end of July 2018 and will include the review findings around the complaints handling system.
I refer to your letter dated 28 September 2017 seeking the Scottish Government's views on the calls from Bill Tait to review the operation of the Scottish Legal Complaints Commission, and from Melanie Collins to reform and amend the regulation of complaints about the legal profession in Scotland.
The independent review of the regulation of legal services was announced by the Minister of Community Safety and Legal Affairs, Annabelle Ewing on 25 April 2017. I chair the review and my deadline to report to Ministers is by the end of July 2018.
As described in the remit for the review, which is broad, its purpose is to make independent recommendations to reform and modernise the statutory framework for the regulation of legal services and complaints handling. We are committed to ensuring that our recommendations focus on consumers, providers of legal services and the market place for legal services in Scotland. The time is right to appraise the regulatory system, which last saw substantial changes as a consequence of the 2010 Act, and which the current regulators and others agree is ready for review.
The panel, made up of individuals with experience in legal services, consumer interests, regulatory systems, and complaints systems have met five times to date.
Gathering evidence from a full range of stakeholders with an interest in our work is crucial to help inform our findings. This includes professional bodies, regulators, consumer bodies, a wide range of providers of legal services, business organisations and others. Stakeholder events will take place in November-December, with a formal call for evidence launching at the turn of the year.
The review is also considering relevant information such as regulation in other sectors and in legal services regulatory systems from other parts of the world, and has commissioned a specific study into unregulated legal services.
I have copied this letter to the Justice Committee and am happy to provide further updates if either committee wishes those in due course.
PE1660/C & PE1661/C Submission from Scottish Legal Complaints Commission of 31 October 2017
Thank you for your letter of 26 September about the Petitions Committee on 21 September about petitions PE1660 (Bill Tait) and PE1661 (Melanie Collins) relating to regulation and complaints in legal services.
We spoke on 27 October. For some reason, which neither of us could identify, we had not received the original letter, although had been expecting it and indeed had emailed on 10 October to ask if we were to receive such a letter. We’re very grateful, therefore, that you allowed us a short extension to respond.
We agree there is a strong case for reform in some areas, we have actively lobbied for this, and we’re confident the current Independent review of the regulation of legal services will address matters.
In this letter the SLCC sets out our general position on reform first, which significantly pre-dates the petitions, and then addresses some specific issues raised in the petitions.
THE SCOTTISH LEGAL COMPLAINTS COMMISSION
The Scottish Legal Complaints Commission (SLCC) is the independent gateway for all complaints about solicitors, advocates and commercial attorneys. We have experience of handling over 10,000 complaints, and last year alone awarded consumer redress over £324,000. An independent Consumer Panel also helps guide our work.
For a two-page summary of our work, and its impact on consumers see: https://www.scottishlegalcomplaints.org.uk/media/69464/annual review.pdf
OUR PROPOSALS FOR REFORM
The SLCC has actively called for radical change to the regulation of the sector. In July 2016 we published our paper #ReimagineRegulation, which is available on our website: https://www.scottishlegalcomplaints.org.uk/reimagine-regulation.aspx. A detailed set of supporting appendices provide, among other things, a history of the Scottish Parliament’s involvement in these issues since the parliament’s creation.
We hope this is of assistance to the Committee.
The SLCC robustly highlighted key areas for change which we believe could deliver better results for the sector and for the consumer:
1. Unravelling the current complex complaints maze
Up to four statutory bodies can be involved in a single case, causing duplication and delay. We provide a visual representation of the ‘customer journey’ to highlight the current problems.
2. Reducing statutory detail that focuses on processes, not outcomes for people
Complex and inflexible processes have lost sight of the principles of better regulation and distracted from a focus on the outcomes for the public and sector.
3. Ensuring that when redress is awarded the client receives it
In too many cases redress is awarded but failings in the current system mean the complainer does not receive it, undermining confidence in the system.
4. Targeting risk, and not seeing all legal services as the same
For example, conveyancing is a major driver of all regulatory costs across more than one statutory body - how do we either better support, or more proportionately regulate, in that area to reduce this consumer detriment?
5. Embedding the consumer principles
Professional voices in debates in regulation are always informed, strong, and well resourced. We need to understand consumer’s need, and hear their voice, if regulation is to be credible.
6. Learning from complaints and data to improve future outcomes
Modern regulation is about identifying and targeting risk, and creating proportionate and agile structures to tackle issues in fast moving markets. 10 years after our establishment we too often find it is the same basic issues causing problems with consumers, with little done (it being outwith the SLCC’s remit) to tackle the root cause.
SPECIFIC ISSUES RAISED IN THE PETITIONS
A key question is raised about a single regulator, or at least complaints body, and the SLCC believe this merits serious consideration. The cost and confusion caused by four different bodies, for a sector of only 11,000 professionals, is an issue in its own right.
Even if a single body is not eventually possible, debating that model will more sharply focus the discussion on the core purpose and aims of regulation in the sector, and the key mechanism to reduce risk and support a sustainable market, rather than starting discussion from the perspective of the current fragmented roles and responsibilities.
The SLCC also agrees oversight issues need considered. At the moment there is a fractured framework. For example, whilst the SLCC is overseen by an independent Board of Commissioners appointed by government, is subject to Freedom of Information, and comes within the remit of Audit Scotland, not every organisation involved in regulation is currently so transparent, nor under such financial scrutiny. At the moment no bodies, including the SLCC, come under the best practice promoted by the Regulatory Reform (Scotland) Act 2014. As we continue the journey of the modernisation of legal regulation a single approach to oversight, with consistent minimum legislative requirements, would be a positive outcome.
Several statutory levies are payable by lawyers, and the value of the fees, and the balance of spending between regulatory and representative functions, should be considered in the round. None of the bodies currently involved have their budgets approved by parliament. In all governance matters legislation is balancing the need for regulation independent from government with what are appropriate governance structures. As with many issues raised, this may be best looked at in the round, as from the lawyer and consumer perspective it is the total cost of regulation which is key.
The SLCC had already raised concern at the only route of appeal being to the Court of Session. This point was made in our paper last year about reform, and we believe the legislation should be amended to allow a more proportionate mechanism. This is part of reducing the current complaints maze, so there is a single investigation, and single set of decisions, and a single appeal.
The SLCC supports the emphasis placed on independent regulation. We believe expert input into regulation is absolutely essential, and that a regulator must be credible to the profession as well as the public. However, the best model for delivering this has been contentious in previous parliamentary debates. The overwhelming trend in UK terms for regulation has been around an ongoing journey from self-regulation to independent regulation (for example, only today, joint work has been published by the four UK health departments on the evolution of governance in the regulation of health professionals:
https://www.gov.uk/government/consultations/promoting-professionalism-reforming- regulation para 4.18 onwards). These petitions highlight that this is likely to be the expectation of the public.
In all of this public and consumer voices are vital. There is a deeply worrying lack of independent research into consumer needs and detriments in Scotland in the legal sector. The SLCC’s Consumer Panel has been instrumental in flagging this in recent years. However, the government’s own previous review of legal regulation in 2006 had raised this as a concern, and the situation has, if anything, deteriorated further since then (for example with Consumer Focus Scotland no longer in existence and doing work in this field). A top priority should be the creation of a better evidence base from those who use services, alongside the professional voices.
Ignoring those consumer voices has consequences, and this is relevant to one specific issue raised in this petition. In debating the legislation that led to the creation of the SLCC consumer groups valued transparency, and that the SLCC should be able to publish decisions about complaints. However, after extensive lobbying by other interests a decision was made that not only would the outcome of complaints not be published, but that a new criminal offence would be created for any divulgence of information, an offence so wide that it covers even confirming if a complaint has been received. This is out of step with other professions and sectors, and other jurisdictions, where there is more discretion to publish when there is public interest. The SLCC understands the frustration of complainers, but must abide by the current legislative framework. As with most issues covered in the petition, we had raised this ourselves last year in our paper on reform.
LEVY
We noted in the discussion within the committee mention of our consultation on the levy for solicitors last year (the fees all solicitors, advocates and commercial attorneys need to pay each year, set to cover the cost of processing complaints).
Although in past years the SLCC had managed to reduce the levy, a significant increase was proposed last year. This was driven by a number of factors, the two biggest of which were a rise in complaints and a judicial review, and 17 appeals to the Court of Session, launched by the Law Society of Scotland.
The rise in complaints had been steep, with a 12% increase in complaints against solicitors within 12 months. This has now been followed in the subsequent year by a further 2% rise, and current predictions are that complaint numbers are continuing to increase. We recognise paying the cost of complaints is not popular with any sector, and as a member led organisation the Law Society would always challenge costs, but a more positive debate would have focussed on how to tackle the common cause of complaints and reduce harm to the public.
In terms of the number of litigations by the professional body, we were pleased to win the ‘test case’, and to have the court confirm SLCC had been acting in a way consistent with ‘good public administration’. We had publicly warned these litigations would cause cost, delay and worry to complainers and practitioners, and were unnecessary, as proved to be the case. We were disappointed that in their lobbying against the levy the Law Society did not mention its own actions were one of the big drivers of cost.
CONCLUSION
I hope our #ReimagineRegulation paper displays a body which is not only ‘up for’ change, but actively trying to stimulate a debate about how parliament, government, consumers and the profession can work together to create a better system in Scotland.
The SLCC is certainly confident that the independent review of legal regulation will actively consider the issues we have been raising over the last 18 months, and which the petitions support from a public perspective, and look forward to the final report on these complex issues currently expected in July 2018.
Reimagine Regulation - SLCC priorities for a consultation on legal services regulation
Reimagine Regulation - SLCC appendices to our main paper
LAWYERS REVIEW THEIR OWN REGULATION: Third attempt by SCottish Government at reforming biased system of solicitors self regulation.
The latest review of the way lawyers regulate themselves marks the third attempt at addressing problems created by Scotland’s pro-lawyer system of self regulation, where lawyers write the rules, and look after their own.
In 2001, the Scottish Parliament’s Justice 1 Committee, under the Convenership of Christine Grahame MSP, met to consider evidence in relation to calls to reform regulation of the legal profession.
The inquiry, gained by the late, widely respected MSP, Phil Gallie, heard evidence in relation to how complaints were investigated by the legal profession.
However, Mr Gallie was replaced by Lord James Douglas Hamilton, and the Committee eventually concluded not to amend how the Law Society regulated Scottish solicitors.
A second, more substantive attempt to reform regulation of the legal profession came about in 2006, with the Scottish Parliament’s then Justice 2 Committee taking on consideration of the proposed Legal Profession & Legal Aid (Scotland) Act, which received Royal Assent in 2007.
The LPLA Act led to the creation of the now widely derided Scottish Legal Complaints Commission – once touted as an ‘independent’ solution to handing complaints against solicitors and advocates.
A mere nine years after the creation of the SLCC in 2008, the badly run legal quango, often itself the subject of scandal, charges of incompetence and downright bias – has become as much a threat to consumer protection as the Law Society itself was in the days when complaints were handled at the Law Society’s former HQ in Drumsheugh Gardens, Edinburgh.
The independent review of the regulation of legal services in Scotland is expected to consult widely with stakeholders and report to Scottish ministers by the end of 2018.
The independent chair of the review is Esther Roberton, current chair of NHS 24. Ms Roberton has extensive senior leadership experience in the NHS and other areas of public life. She is also currently a board member of the Scottish Ambulance Service (2014-18). She was chair of SACRO (2010-2014) and until recently also sat on the Crown Office and Procurator Fiscal Service Audit and Risk Committee (COPFS ARC).
The review panel have confirmed their participation as follows:
• Christine McLintock - immediate past president Law Society of Scotland
• Alistair Morris - chief executive of the management board, Pagan Osborne (Law Society of Scotland)
• Laura Dunlop QC - Hastie Stables (Faculty of Advocates)
• Derek Ogg QC - MacKinnon Advocates (Faculty of Advocates)
• Neil Stevenson – chief executive of the Scottish Legal Complaints Commission
• Nicholas Whyte – chair of Scottish Solicitors’ Discipline Tribunal
• Ray Macfarlane – chair of the Scottish Legal Aid Board
• Jim Martin – outgoing Scottish Public Services Ombudsman
• Dr Dame Denise Coia – chair of Healthcare Improvement Scotland
• Prof Lorne Crerar - chairman, Harper Macleod LLP
• Prof Russel Griggs - chair of the Scottish Government’s Independent Regulatory Review Group
• Trisha McAuley OBE - independent consumer expert
A full report on the Scottish Government’s review of legal services – unmasked as a lawyer dominated pro-self regulation panel - can be found here: REGULATED REVIEW: Scottish Government panel to look at self regulation of lawyers - Former Cabinet Minister calls for review to include judiciary, and panel membership to strike ‘better balance between lawyers & non-lawyers’
