9th Report, 2014 (Session 4): Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014

SP Paper 578 (Web Only)

JUS/S4/14/R9

9th Report, 2014 (Session 4)

Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014

Remit and membership

Remit:

To consider and report on:
a) the administration of criminal and civil justice, community safety and other matters falling within the responsibility of the Cabinet Secretary for Justice; and
b) the functions of the Lord Advocate other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Membership:

Christian Allard
Roderick Campbell
John Finnie
Christine Grahame (Convener)
Alison McInnes
Margaret Mitchell
Elaine Murray (Deputy Convener)
John Pentland
Sandra White

Committee Clerking Team:

Irene Fleming
Joanne Clinton
Neil Stewart
Christine Lambourne

Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014

The Committee reports to the Parliament as follows—

1. At its meeting on 5 August 2014 the Committee considered the following instrument—

Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014 [draft].

2. The instrument was referred to the Justice Committee as lead committee and was subject to affirmative procedure. The Cabinet Secretary for Justice, Kenny MacAskill, gave evidence on the instrument and also moved the relevant motion recommending approval of the instrument.

Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014 [draft]

The draft instrument

3. The draft Regulations were laid under section 41 of the Legal Profession and Legal Aid (Scotland) Act 2007. The instrument will make amendments to the Legal Profession and Legal Aid (Scotland) Act 2007 to adjust the duties and powers of the Scottish Legal Complaints Commission (SLCC) and to impose new duties and new powers on it. These include--

  • giving the SLCC the ability to revisit the eligibility of the complaint during the investigation phase;
  • providing for a more flexible order of consideration of aspects of complaints;
  • giving the SLCC the ability to discontinue the investigation of a complaint and, should it wish, reinstate a complaint where it has discontinued an investigation;
  • providing practitioners about whom a conduct complaint has been made with the power to complain to the SLCC if they feel that the conduct complaint has been poorly handled by the relevant professional organisation;
  • providing new powers for dealing with recommendations in reports on handling complaints;
  • providing for handling complaints to be reinstated;
  • placing an obligation on the SLCC to set up and consult an independent panel.

Scrutiny by the Delegated Powers and Law Reform Committee

4. The Delegated Powers and Law Reform Committee considered the instrument at its meeting on 17 June 2014 and agreed that it did not need to draw the attention of the to it on any grounds within its remit1.

Justice Committee consideration

5. The draft Order was considered by the Justice Committee on 5 August 2014, when it took evidence from Kenny MacAskill, Cabinet Secretary for Justice2.

6. In his opening remarks the Cabinet Secretary stated that the Regulations are a direct result of the findings of a working group formed by the Law Society of Scotland and the SLCC and other stakeholders, which was set up to suggest changes to the legislation to improve the complaints process for the benefit of the public and the profession. He confirmed that the Regulations will improve efficiency and better reflect current practice by giving the SLCC the power to discontinue and reinstate service complaints and by giving legal practitioners the right to complain about the handling of a complaint by a professional body. He added that they will also require the SLCC to set up an independent panel to advise it on consumer and equality issues.

7. When questioned about monitoring of the operation of the SLCC, a Scottish Government official explained that the SLCC lays an annual report before the Parliament. She also noted that the SLCC is an unusual non-departmental public body in that it is funded not by the Scottish Government but by a levy on the profession, giving a certain amount of accountability to the profession. She added that the Scottish Government works closely with the SLCC on improvements to and efficiency in its operations.

8. In response to a suggestion that it is time for some in-depth post-legislative scrutiny of how the SLCC is operating, Mr MacAskill affirmed that, while he is open to suggestions from the Committee, he considers that there is an appropriate balance in that the commission, together with the bodies on whom the levy is imposed, has been working reasonably well. He noted that the SLCC has recognised where there have been challenges and difficulties and it has worked out what changes are needed.

9. When pressed further about independent scrutiny, the Cabinet Secretary confirmed that he and his deputy meet regularly with the Faculty of Advocates and the Law Society of Scotland. Mr MacAskill explained that he would not wish the Scottish Government to intervene in a body that appears to be liaising and operating well, although he is always open to suggestions.

10. In response to questions about consultation on the Regulations, a Scottish Government official confirmed that the proposed amendments have agreement across the spectrum of consultees. She went on to explain that the issue concerning appeals going to the Court of Session would require primary legislation and confirmed that the working group accepted that the current position on this issue must remain at the moment.

11. Mr MacAskill then moved the motion lodged in his name: S4M‑10634—That the Justice Committee recommends that the Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014 [draft] be approved. The motion was agreed to.

12. The Justice Committee recommends to the Parliament that it approve the draft instrument.


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Footnotes:

1 Scottish Parliament Delegated Powers and Law Reform Committee. 43rd Report, 2014 (Session 4). Subordinate Legislation. Available at: http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/78529.aspx

2 Scottish Parliament Justice Committee. Official Report, 5 August 2014. Cols 4794-4798. Available at: http://www.scottish.parliament.uk/parliamentarybusiness/28862.aspx?r=9435&mode=pdf

Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body, The Scottish Parliament, Edinburgh, EH99 1SP by APS Group Scotland, 21 Tennant Street, Edinburgh EH6 5NA

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