MSPs seek views on reform of legal regulation. TEN YEARS after the contentious passage of the Legal Profession & Legal Aid (Scotland) Act 2007 - which saw the creation of the Scottish Legal Complaints Commission (SLCC) as the lawyer-lawyer led regulator of legal services - MSPs are to seek views on creating a fully independent non-lawyer regulator of Scots legal services.
Two petitions calling for a complete reform of legal services regulation in Scotland have been debated by members of the Scottish Parliament’s Public Petitions Committee.
MSPs have now decided to call 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.
The move by MSPs comes after the Scottish Government announced a ‘review’ of legal services regulation in Scotland, back in April 2017.
However, the Scottish Government ‘review’ – will not report back until the end of 2018 and with non binding recommendations – and has come in for significant criticism after it was found there was only one consumer related interest among the legal related membership.
When the review was announced earlier this year, former Cabinet Minister & SNP MSP Alex Neil said the review remit should also include judges.
Alex Neil said: “I hope it produces radical and robust proposals. I also hope it covers the judiciary as well as lawyers.”
Mr Neil also called for greater fairness in the panel’s membership, to include members from outside the legal establishment.
Mr Neil added: “I hope the membership of this review panel will be expanded to get a better balance between lawyers and non-lawyers”
A full report on the Scottish Government’s review of legal services 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’
After members discussed the two petitions, the Petitions Committee agreed to join these petitions together for future consideration on the basis that they raise similar issues.
The Committee also 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.
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.
HOLYROOD BRIEFING: MSPs hear of differences between Scotland & UK on regulation of legal services:
Scotland – complaints against lawyers
4. The SLCC was set up by the Legal Profession and Legal Aid (Scotland) Act 2007 (the Act) to deal with complaints against legal practitioners (primarily solicitors or advocates) in Scotland.
5. It is an independent body whose Board is appointed by the Scottish Ministers in consultation with the Lord President of the Court of Session. It is supported by a management team and staff who carry out investigations.
6. The SLCC is funded by a levy paid by legal practitioners and is required to consult with the relevant professional bodies when setting its annual budget. A copy of the finalised budget has to be laid before the Scottish Parliament no later than 30 April in each year (the budget is not, however, subject to parliamentary approval).
7. The SLCC acts as the initial gateway for complaints. Unresolved complaints have to be made to it in the first instance. Complaints made directly to a professional body (e.g. the Law Society of Scotland (Law Society) or Faculty of Advocates (Faculty)) have to be forwarded by these bodies to the SLCC.
8. Once the SLCC has received a complaint, it assesses whether it is a:
1. Service complaint – i.e. related to the quality of work; or a
2. Conduct complaint –i.e. related to a legal practitioner’s fitness to carry out work and behaviour outside of business.
7. Cases often involve issues of both service and conduct, with the result that both the SLCC and professional bodies can investigate different aspects of the same complaint.
• Award the complainer up to £20,000 for any loss, inconvenience or distress resulting from inadequate professional service.
• Require the relevant legal practices/practitioners to reduce fees, re-do work and rectify any mistakes at their own expense.
• Report the matter to the relevant professional body if the practitioner shows a lack of legal competence.
9. Decisions of the SLCC can be appealed to the Court of Session.
10. If the complaint, or part of the complaint, concerns the conduct of a legal practitioner, the SLCC passes it on to the relevant professional body to investigate. The SLCC is not permitted to investigate conduct complaints, but it can investigate the way these have been handled by the relevant professional organisation (known as a handling complaint).
11. The Law Society is able to impose sanctions on solicitors whose conduct has been “unsatisfactory” and can prosecute solicitors before the Scottish Solicitors Discipline Tribunal (SSDT) where behaviour amounts to professional misconduct. The maximum compensation payable to a complainer is £5,000. In the most serious cases the SSDT can suspend a solicitor’s practising certificate or strike them from the roll of solicitors.
12. The Faculty deals with conduct complaints through a Complaints Committee comprising an equal number of advocates and lay members. Its decisions can be appealed to the Faculty of Advocates Disciplinary Tribunal – chaired by a retired senior judge and whose members include advocates and lay persons. In September 2016 the SLCC published a report which audited the operation of the Faculty’s investigation and disciplinary processes.
13. For further details on the complaints system see:
14. In recent years there has been a degree of conflict between the SLCC and the Law Society over the operation of the complaints system. For example, in December 2016, the Law Society announced that it had commenced legal action against the SLCC over the way in which it categorises complaints as service complaints or conduct complaints. In addition, in April 2017 the Law Society noted in a press release that it was “frustrated and disappointed” about the increase in the SLCC levy to be paid by solicitors. The press release also referred to the complaints system as being, “slow, complex, cumbersome and expensive.”
England & Wales – complaints against lawyers
15. In England & Wales complaints about poor service against legal practitioners are dealt with by the Legal Ombudsman. Issues of professional misconduct are referred to the relevant “approved regulator” – i.e. the Bar Standards Authority (for barristers) and the Solicitors Regulation Authority (for solicitors), who can take disciplinary action. For details see the House of Commons Library’s briefing on complaints against solicitors and other lawyers.
Scottish Parliament Action
16. In session 4, the SLCC submitted a letter to the Scottish Parliament’s Justice Committee in which it argued that a review of the complaints procedure was needed. In response, the Justice Committee wrote to the Cabinet Secretary for Justice and received a response dated 31 October 2012 indicating that the SLCC and Law Society were, “developing a consensual approach to reach an agreement on the key improvements required.” Regulations amending the powers and duties of the SLCC were subsequently scrutinised by the Justice Committee, which recommended their approval by the Parliament (approval was granted on 13 August 2014).
The motion lodged by Douglas Ross, who is now an MP at Westminster read:
SLCC's Proposed Levy Increase of 12.5%
That the Parliament recognises the concerns of solicitors and advocates following the announcement that the annual levy on legal practitioners to the Scottish Legal Complaints Commission (SLCC) is set to rise by 12.5%; understands that the SLCC has argued that recent increases in the number of complaints received against solicitors requires a commensurate increase in its budget; believes that some solicitors and advocates consider that these costs could be absorbed by the SLCC without a rise in the levy; understands that the Law Society of Scotland submitted a paper to the SLCC in response to the plans, but that its proposals were rejected and the increase was maintained; recognises the reported concerns among legal practitioners that the levy can be adjusted by any amount without a mechanism to effectively challenge it; acknowledges what it sees as the risk that the increase in the levy could be passed on to consumers, and calls on the SLCC to carefully consider the feedback that it has received from solicitors, advocates and the Law Society of Scotland.
Supported by: Dean Lockhart, Alexander Stewart, John Lamont, Alison Harris, Peter Chapman, Liz Smith, Gordon Lindhurst R, Edward Mountain, Donald Cameron R, Liam Kerr R, Miles Briggs, Murdo Fraser R, Adam Tomkins, John Scott, Margaret Mitchell, Rachael Hamilton R, Jackson Carlaw, Annie Wells, Jeremy Balfour, Ross Thomson, Brian Whittle, Jamie Greene, Alexander Burnett, Bill Bowman, Maurice Golden
Scottish Government Action
18. On 25 April 2017, the Scottish Government announced the launch of an independent review of the regulation of legal services in Scotland including the complaints system. According to the Scottish Government, the review
“…follows concerns that the current legislative framework is not fit for purpose and has not kept up with developments in the legal services market. There are also worries that the current processes for people wishing to make complaints about their solicitor are too slow and too complex.”
19. The review is expected to report to Scottish Ministers by the end of 2018.
FLAWED LEGAL SERVICES REVIEW – How Scottish Government’s attempt at independent review of lawyers ended up back in the hands of … lawyers:
In April 2017, the Scottish Government announced an ‘independent’ review into how lawyers regulate their own colleagues – with a remit to report back by the end of 2018.
The move by Scottish Minsters, coming after discussions with the Law Society of Scotland - is intended to answer concerns amid rising numbers of complaints about poor legal services and the diminishing status of Scotland’s legal services sector,
However, former Cabinet Minister Alex Neil MSP (SNP Airdrie and Shotts) said the review 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.
Mr 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 caught up in a cash payments scandal.
The review, led by NHS 24 chair Esther Roberton, is intended to make recommendations to modernise laws underpinning the legal profession’s current regulatory system including how complaints are handled.
This follows concerns that the current legislative framework is not fit for purpose and has not kept up with developments in the legal services market. There are also worries that the current processes for people wishing to make complaints about their solicitor are too slow and too complex.
However, doubts about the impartiality of the panel have been raised after the announcement by Legal Affairs Minister Annabelle Ewing revealed a top-heavy compliment of figures from the legal establishment who are keen on protecting solicitors’ self regulation against any move to increase consumer protection by way of independent regulation.
The list of panel members includes:
*Two former Presidents of the Law Society of Scotland;
* The current Chief Executive of the pro-lawyer Scottish Legal Complaints Commission;
* An outgoing Scottish Public Services Ombudsman widely criticised for ineptitude;
* The current chair of the Scottish Solicitors Discipline Tribunal (SSDT) – who struck off only six solicitors last year;
* The chair of a law firm whose partners have regularly appeared before the SSDT;
* A QC from an advocates stable where colleagues have been linked to a cash payments scandal;
* A former Crown Office Prosecutor & QC linked to events in the David Goodwillie rape case – where the victim was forced to sue her assailant through the civil courts after the Lord Advocate refused to prosecute the footballer.
Announcing the review, Legal Affairs Minister Annabel Ewing said: “Members of the public must be able to have confidence in the service they get from their solicitor. While this happens most of the time, I have been listening carefully to concerns that the current regulatory system in Scotland may leave consumers exposed and does not adequately address complaints.”
The latest move by Scottish Ministers to reform self regulation of solicitors and advocates comes years after a move in England & Wales to more robust independent regulation of legal services - which has left Scots consumers & clients at a clear disadvantage.
And while clients in the rest of the UK have much more of a chance to obtain redress against legal professionals who consistently provide poor legal services – and see their lawyers named and shamed in public by the Solicitors Regulation Authority (SRA) and Legal Ombudsman (LeO).
Review should include judiciary:
Scotland’s judges have earned themselves widespread criticism and condemnation at Holyrood and from the Judicial Complaints Reviewer (JCR) – after top judges failed to address complaints and become more transparent and accountable like other branches of Government.
Ongoing efforts by the Scottish Parliament’s Public Petitions Committee to create a register of judges’ interests have been flustered by two Lord Presidents – Lord Gill & current top judge Lord Carloway.
The proposal to bring greater transparency to Scotland’s judiciary - Petition PE1458: Register of Interests for members of Scotland's judiciary - first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.
The current review could include the judiciary in terms of how judges regulate themselves, however the Scottish Parliament should be left to get on with the task of creating a register of judges’ interests – given the five years of work already undertaken by MSPs on the thorny question of judicial declarations.
REVIEW THE REVIEW: Third attempt 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
The Scottish Government’s review of legal services 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’