Undue Influence : Freedom of Information reveals how Law Society used Scottish Government Ministers to reduce complaints levy for crooked lawyers

Communities Safety Minister Fergus Ewing demanded ‘independent’ law complaints quango give solicitors a break on complaints charges. DOCUMENTS REVEALED under Freedom of Information legislation of a meeting chaired by the Scottish Government’s Community Safety Minister Fergus Ewing between the Scottish Legal Complaints Commission & Law Society of Scotland over arguments relating to ongoing court cases between the two regulators and the costs of the contentious Penman Levy ‘complaints levy’, will leave no one in any doubt about the close relationship between the Law Society of Scotland & the Scottish Government on issues the legal profession demand are raised in its favour.

I reported on Community Safety Minister Fergus Ewing’s intervention on behalf of the Law Society to reduce the complaints levy in an earlier article during April, here : ‘Ministerial Interference’ as Fergus Ewing demands SLCC’s £1.5m reserves be handed to lawyers after Law Society lobbied Scottish Government, however the recent release of the actual minutes of the meeting now reveal the extent of Mr Ewing’s involvement which resonates throughout the two pages as being clearly biased in favour of the Law Society’s stance over complaints levies and court challenges against the Scottish Legal Complaints Commission over complaints appeals.

Documents reveal meeting demanded by the Law Society secured Ministerial interference to reduce complaints levy. Community Safety Minister Fergus Ewing, himself a former solicitor & member of the Law Society of Scotland opened the meeting, held on 22 April at the Scottish Parliament, allegedly claiming its purpose was not to interfere with the duties of the SLCC or the Law Society, despite the Law Society having itself called for the meeting, which was attended by the Society’s current Chief Executive, Lorna Jack & Director of Regulation Philip Yelland. However, insiders today revealed the only issue the Law Society wanted to discuss (appearing as item 8 in the minutes) was the complaints levy and the massive £1.5 million surplus held by the Scottish Legal Complaints Commission, which the Law Society had asked the Scottish Government to consider while seeking a reduction in complaints levy charges for solicitors.

Item 8 of the released minutes read : “The Law Society confirmed that the points they had made previously about ‘over provision’ of reserves stood. The Scottish Government was concerned that the SLCC were being over cautious on risk, particularly given that most of the risk will be substantially mitigated in the course of the year.”

Scottish Government had received ‘numerous representations from the Law Society on the complaints levy. A Scottish Government insider today confirmed the Law Society had made numerous representations, both written & ‘in person’ to the Scottish Government over the society’s desire to further reduce the complaints levy, and on issues relating to the society’s court of session challenges against the Scottish Legal Complaints Commission. However he said “there was about as much chance of getting hold of these documents in an FOI request as the Edinburgh Trams project finishing on time”

A legal insider, studying the terms of the minutes, disputed the Community Safety Minister’s version of why the meeting had taken place and his attempt to distance himself from appearing to intervene on the part of one regulator against another.

He went on to point out Mr Ewing’s claim of not wishing to interfere in the running of the Scottish Legal Complaints Commission was very misleading, to the point of being dishonest, considering Mr Ewing had already sent a letter to the SLCC’s Chair, Jane Irvine, threatening there would be Ministerial intervention if the SLCC did not accede to the Minister’s wishes on the complaints levy & reserves, wishes which coincided with those of the Law Society of Scotland.

Tale of a Ministerial Threat : Community Safety Fergus Ewing demanded reduction of complaints levy as Law Society had requested. The letter from Mr Ewing to the Scottish Legal Complaints Commission, where insiders recently branded the letter ‘Ministerial intervention on behalf of the Law Society’, stated : “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 therefore invite the Commission to give early and serious consideration to reducing the proposed amount of the annual general levy …. 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.”

There have been successive reductions in the SLCC’s complaints levy since the ‘independent’, scandal-hit law complaints quango was created in 2007 as a result of the passage of the Legal Profession & Legal Aid (Scotland) Act 2007 – legislation which was passed after a collective campaign by many individuals, consumer organisations & campaign groups to reform widespread corruption in regulation of Scotland's legal profession.

The complaints levy initially stood at £409 in 2008, a levy charged to each solicitor to fund the Scottish Legal Complaints Commission’s work investigating complaints against ‘crooked lawyers’. However, after a year of bickering between the SLCC & Law Society, the SLCC’s complaints levy was reduced dramatically in 2009 from £409 to £275, and the £200 charge for mediation between solicitors (who were involved in complaints) & their clients, dropped.

Lorna Jack, Chief Executive of the Law Society. The Law Society welcomed Fergus Ewing’s intervention to reduce the complaints levy, issuing a press release a few days after the meeting took place, apparently rubbing in their ‘Ministerial assisted’ victory over the SLCC. Lorna Jack, Chief Executive of the Law Society of Scotland, announced : “We are delighted the representations made by the Society have resulted in a reduction in the levy on our solicitors. The Society did make strong representations to the Scottish Legal Complaints Commission on behalf of the profession.”

Scottish Legal Complaints Commission were branded ‘liars’ by Law Society over Court actions. Ms Jack went on to chastise the Scottish Legal Complaints Commission over what she viewed as ‘necessary’ court challenges against complaints decisions : “Whilst we are pleased that they have listened to some of our points, we are extremely disappointed that the SLCC has used the excuse of the unknown outcome of appeals currently at the Court of Session as a reason for keeping their budget and reserves so high. These appeals were necessary and indeed the only course of action open to the Law Society to clarify a difference of understanding of the law which the Society and SLCC have over whether certain complaints are conduct complaints that the Society can investigate.”

Law Society ended Press Release with ‘veiled threat’. Ms Jack ended her press release with a veiled threat against the independent SLCC, inferring the Law Society would be back in the fight to get its way further on complaints levies : “We will continue to talk to the SLCC about how they can work within the legislation and improve their structures and systems to avoid this type of issue arising in future at an unfair cost to the profession. The Society has a right to challenge the SLCC’s budget, as one of the professional bodies representing the legal profession which pays for its running costs, and we think the SLCC have failed to take a proportionate approach to the risk involved.”

A senior official from one of Scotland’s consumer organisations said today the terms of the meeting, taken in context with the earlier letter from the Community Safety Minister to Jane Irvine, the SLCC’s Chair, made for a venue of intimidation likely to produce “a favourable result for the Law Society of Scotland, which is in fact, what has occurred”.

He said : “I think consumers would rightly view it is entirely inappropriate for the Scottish Government, acting on behalf of the Law Society of Scotland to intervene with the independent Scottish Legal Complaints Commission, where there is without doubt a clear bias in favour of the Law Society who had approached the Minister for help in seeking a reduction in the complaints levy & the amount held by the SLCC in its reserves.”

He continued : “The Scottish Government, let alone a Government Minister would never even consider offering to chair meetings between consumers who are having problems with either the SLCC or the Law Society where either or both regulators have failed to properly investigate complaints made against Scottish solicitors.”

“Mr Ewing’s interference has effectively killed the SLCC’s public credibility and put the Law Society on notice it can call in Scottish Ministers at any time to get its own way. A poor example for Mr Ewing to set considering the long history of problems with regulation of the legal profession.”

A Justice Department insider, asked today if the FOI released minutes truly reflected the tone of the meeting & what had all been discussed, replied with a wry smile, saying : "What do you think ?”

Well, I know what I think … and coincidentally of course, the SLCC did agree to freeze the complaints levy, as well as draw down on their reserves, just as the Law Society of Scotland had demanded the willing Scottish Government Minister ensure took place;

So, as easily as a gamekeeper may call his Jack Russell Terrier to heel before ordering it down a rabbit hole, details of meetings demanded by the Law Society over financial benefits for its member solicitors indisputably show Scottish Government Ministers will apparently follow the society’s wishes to the letter, in this case, where the Law Society had demanded further reductions in the annual complaints levy charged to all solicitors which funds the Scottish Legal Complaints Commission.

What chance is there of independent, transparent regulation of the legal profession in Scotland, when the Law Society can call in Scottish Ministers to bully any regulator into speedy subjugation ? No chance at all … and consumer protection against inadequate legal services ? in Scotland .. such an idea is a myth under the current administration.

Glasgow lawyer who covered up husband’s £24K mortgage scam makes it to Scottish Legal Consumer Complaints register

The Law Society of Scotland continues to allow dishonest lawyers to work, unknown to potential clients. GLASGOW SOLICITOR CATRIONA MACFARLANE, made famous earlier this year for covering up her mortgage broker husband’s theft of £24,000 of funds from clients she also represented, is the subject of this week’s feature on the new Scottish Legal Consumer Complaints website, well worth a read for Scots consumers of legal & financial services – especially in this case, mortgages, house purchases & sales.

Notably, even though Ms McFarlane was found guilty by the Scottish Solicitors Discipline Tribunal, censored, and fined the magnificent sum of £2,500, she is still working as a solicitor – a testament to the ‘ultimate in client protection’ offered by the Law Society of Scotland and hapless Scottish Legal Complaints Commission, ensuring once again that consumers are not safe while lawyers continue to regulate themselves.

Scottish Legal Consumer Complaints - A community based register of those to avoid in the legal profession :

I have previously reported on the Catriona MacFarlane case here : Glasgow lawyer who covered up husband's £24k client theft gets slap on the wrist by Law Society tribunal, continues working & here : Law Society ‘routinely fails to report crime' as Crown Office admits it never received report on Glasgow lawyer theft cover-up investigation

Curiously, the Crown Office refused to prosecute Ms MacFarlane even though the matter was reported to the Lord Advocate herself, as I reported here : Crown Office brought in over mortgage broker’s £24k client theft after Law Society failed to report Glasgow lawyer who 'covered up' for husband

Perhaps Mortgage Fraud, especially when it involves lawyers, is not much of a crime to the Crown Office .. or could it be more to do with the Crown Office being rather reluctant to prosecute lawyers for any offence at all, as I reported here : Justice Secretary 'hush hush' on criminal records of lawyers as Crown Office claims its too costly to keep details on legal profession's crooks

A fine example where the community must step in to protect & ensure all consumers are alerted to the dishonest elements of Scotland’s legal profession. Please visit Scottish Legal Consumer Complaints for more details on elements of Scotland’s legal profession you as consumers & existing or potential clients of solicitors may very well wish to avoid …

What do you do when the Law becomes an invasive weapon ? Suggestions for repeal, asks Deputy Prime Minister Nick Clegg

Regulation of Investigatory Powers (Scotland) Act 2000 : a good case for repealing an invasive law which is abused daily by local authorities. DEPUTY PRIME MINISTER Nick Clegg has called for suggestions from the public on which laws we think invade our freedom too much, to the point they should be considered for repeal. An excellent suggestion from Mr Clegg I urge everyone to take up, considering the raft of anti-terror spying measures implemented over the years which have mostly been used by local councils to spy on residents or indeed in some cases, journalists onto a Council-scandal-scoop …

Feeling some of those laws passed over the years are a little too invasive ? Well, don’t just sit there moaning about it, make your voice heard on the new “Your Freedom” website – before the professions get their oar in ahead of the rest of us :

From the “Your Freedom” website :

“We're working to create a more open and less intrusive society. We want to restore Britain’s traditions of freedom and fairness, and free our society of unnecessary laws and regulations – both for individuals and businesses.

This site gives you the chance to suggest how we can do this. Your ideas will inform government policy and some of your proposals could end up making it into bills we bring before Parliament to change the law.

So if there are any laws or regulations you'd like us to do away with, then first, check if there are any similar ideas here already and then add your comments to it and rate it to move it up the list. If it's not here, then add it! And remember - we want you to suggest ideas for removing laws and regulations, rather than ideas for creating them.”

There are so many invasive laws (passed in the past 13 years) which come to mind personally, one of the most prominent being the Regulation of Investigatory Powers (Scotland) Act 2000 – you know, the one your local council uses to spy on you when it feels like it or if you have criticised or complained against your local council, its staff or inadequate public services.

Yes, out of experience of investigating cases along the years, I’d say RIP(S)A is definitely one to nominate for the dustbin, because why should local councils have anti-terror spying powers they regularly abuse more often to protect themselves from revelations of scandals or public criticism than actually revealing the imminent terror threat of someone’s pet West Highland White Terrier (wee Jock) cocking his leg against a tree in a public park.

However, as I was saying the use of RIP(S)A has not just been limited to spying on the antics of ‘wee Jock’ … as cases over the years such as the infamous Scottish Borders Miss X rape scandal have shown, where a local authority who did nothing to stop an abuse ordeal of a handicapped victim went onto spy on journalists & [then] opposition politicians who were writing about the case, which you can read more about here : Miss X report passed to procurator-fiscal , here : Vital Miss X file removed, claims MSP and here : Borders social work chief quits ..

You’d have to wonder just how bad a local authority really is when they spend more time targeting journalists & critics than trying to save an abuse victim just a few yards away from Council HQ ….

RIP(S)A is that kind of law where some council official with a chip on their shoulder after being complained against, can .. well .. lie about a member of the public, and have their colleagues in the spying department try to get something on the person who made the complaint in the first place …

For example, a crooked building control official obviously on the take who just passed a plan which financially benefits a local councillor while sweeping planning objections aside, he runs off to his colleagues to use RIP(S)A to spy on the objectors, to keep an eye out for any adverse publicity coming his way … its that kind of law that just begs to be repealed …

So, visit the Your Freedom website, wherever you are in the UK, and put forward some ideas of laws you think should be repealed … after all, if an invasive law in England & Wales gets the chop through Mr Clegg’s campaign, yet the Scottish Government keeps the ‘Scottish version’ of it intact … well, wouldn’t that be a turn up for the books …

Sheriff Court Rules Council reveals McKenzie Friends on course to help party litigants in Scottish Sheriff Courts by end of summer 2010

McKenzie Friends for Scotland are coming to Sheriff Courts. SHERIFF COURTS across Scotland will shortly see the formal introduction of McKenzie Friends or “Lay Assistants” to assist unrepresented party litigants in civil law cases after the Sheriff Court Rules Council released a statement confirming its members, mostly appointed by Scotland’s Lord President, Lord Hamilton, have accepted the introduction to Scotland's Sheriff Courts of the popular non-lawyer courtroom helper which has existed in the English legal system for some four decades.

Among the members of the Sheriff Court Rules Council are officials from the former Scottish Consumer Council, now renamed Consumer Focus Scotland, who backed the introduction of lay assistants.

A spokesman for the Sheriff Court Rules Council confirmed McKenzie Friends are on their way to Scotland’s Sheriff Courts, saying : “I can advise you that the Sheriff Court Rules Council’s Working Group met on 16 June when it considered the proposed use of a McKenzie Friend in civil proceedings in the sheriff court. The Group agreed that provision be made in the rules along the lines of those recently made by the Court of Session. These rules have now been instructed and it is hoped they will be available in time for consideration by the Council at its next meeting on 6 August.”

Scotland’s Lord President Lord Hamilton recently enacted McKenzie Friends in Court of Session. The move to introduce McKenzie Friends to Scotland’s Sheriff Courts was necessary after the recent decision by the Court of Session Rules Council & Scotland’s Lord President, Lord Hamilton to formally introduce McKenzie Friends to Scotland’s highest court, after a long running petition to the Scottish Parliament on the issue highlighted the lack of lay assistance in Scottish Courts while English courts, and indeed many international jurisdictions allowed the use of lay assistants for the growing numbers of unrepresented party litigants.

Court of Session judge Lord Woolman granted Scotland’s first civil law McKenzie Friend in late 2009. During the course of the Scottish Parliament’s consideration of the McKenzie Friend petition, one of Scotland’s longest running civil claims actions, M.Wilson v North Lanarkshire Council & Others (A1628/01), overtook events at Holyrood and introduced Scotland’s first civil law McKenzie Friend in the Court of Session, granted by Lord Woolman, making the decision to introduce McKenzie Friends to general use in the Court of Session and lower Sheriff Courts, a formality, albeit one taking the best part of a year to complete.

Lord Gill proposed McKenzie Friends in Civil Courts review. Progress to finally bring lay assistants to Scotland’s civil courts was helped considerably by McKenzie Friends being recommended by Scotland’s Lord Justice Clerk, Lord Gill who had spent considerable time on the issue of lay representation as part of the two year Civil Courts Review. Lord Gill had also recommended a ‘super McKenzie Friend’ with a right of audience, enabling a lay assistant to address the court on behalf of party litigants, a proposal now part of the Legal Services (Scotland) Bill, which I recently reported here : McKenzie Friends from today in Court of Session, Lord Gill’s ‘super’ McKenzie Friend with rights of audience proposal goes to Holyrood

I will report further on the McKenzie Friend issue when the Sheriff Court Rules Council publish more details on their draft rules and timescale for formal introduction.

Background of the Sheriff Court Rules Council :

Membership of the Council

The Sheriff Court Rules Council (the Council) was established in its current form by Section 33 of the Sheriff Courts (Scotland) Act 1971. Members of the Council are appointed by the Lord President. Membership comprises two sheriffs principal, three sheriffs, one advocate, five solicitors, two sheriff clerks and two lay members. Lay members should have a knowledge of the working procedures and practices of the civil courts, a knowledge of consumer affairs and an awareness of the interests of litigants in the sheriff courts. The Lord President consults the Minister for Justice before appointing lay members. The membership is completed by one person appointed by the Minister for Justice, who appears to the Minister for Justice to be qualified for such appointment. This position is currently held by the Head of the Civil Justice Division & International Division, Scottish Government Justice Department Civil and International Group.

The current members of the Council are:

Appointed by the Lord President for the period 21 January 2008 to 20 January 2011:

• Sir Stephen S T Young Bt QC, Sheriff Principal of Grampian, Highlands & Islands (Chairman)
  
• James A Taylor QC, Sheriff Principal of Glasgow & Strathkelvin
  
• Michael J Fletcher, Sheriff of Tayside, Central and Fife at Perth
  
• Craig Scott, Sheriff of Glasgow and Strathkelvin at Glasgow
  
• William Holligan, Sheriff of Lothian and Borders at Edinburgh
  
• Mr Simon Di Rollo QC, Faculty of Advocates
  
• Mr Joseph d’Inverno, Solicitor-Advocate, Edinburgh
  
• Mr Fraser Simpson, Solicitor, Glasgow
  
• Mr Gregor Murray, Solicitor, Dundee
  
• Ms Clair McLachlan, Solicitor, Glasgow
  
• Mr Stephen Brand, Solicitor, Dundee
  
• Mr Alan Johnston, Sheriff Clerk’s Office, Glasgow
  
• Mr Roland McMillan, Sheriff Clerk, Dundee
  
• Ms Sarah O’Neill, Scottish Consumer Council
  
• Ms Rachel Smith, In Court Advisor, Aberdeen

Appointed by the Minister for Justice:

• Mr Colin McKay

Minutes of Meetings & Consultation Papers of the Sheriff Court Rules Council are well worth a read for all court users & party litigants.

Functions of the Council

These functions are defined in Section 34 of the Sheriff Court (Scotland) Act 1971. The function of the Council is to review the procedure and practice in civil proceedings in the Sheriff Court. In the light of that review, the Council prepares draft rules and submits them to the Court of Session for approval. The rules submitted to the Court of Session are designed to regulate and prescribe procedure and practice. The review of procedure and practice is an ongoing process. The Council prepares and submits to the Court of Session, draft rules designed to deal with any matters relating to the Sheriff Court.

The Court of Session, having made any modifications it thinks expedient, makes an Act of Sederunt embodying the rules. To assist it in the discharge of its functions, the Council may invite representations on any aspect of the procedure or practice in civil proceedings in the Sheriff Court. The Council considers any representations received. These can be in response to an invitation (e.g. in a consultation paper) or in another manner (e.g. by correspondence or having been raised by a member of the Council).

Power of Court of Session to Regulate Civil Procedure in the Sheriff Court

This power is defined in Section 32 of the Sheriff Courts (Scotland) Act 1971. The Court of Session, by Act of Sederunt, regulates and prescribes the procedure and practice to be followed in any civil proceedings in the Sheriff Court.Before making an Act of Sederunt, the Court of Session consults the Council and takes into consideration their views, unless the Act of Sederunt embodies draft rules submitted to the Court of Session by the Council.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far