Justice 1 Committee, 05 Dec 2001

Meeting date: Wednesday, December 5, 2001

Official Report 299KB pdf

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Legal Profession Inquiry

We have to switch our hats now. I ask members—I think that this applies to me and to Lord James Douglas-Hamilton—to declare any interests before we question members of the Law Society of Scotland.

I declare that I am a non-practising Queen's counsel.

I am a member of the Law Society and a non-practising solicitor.

I had better declare that my husband is a solicitor and a former member of the council of the Law Society.

Perhaps we are going too far, but I take your point, Maureen.

I remind members that we have agreed that our remit is not to examine individual cases, but to examine the general issues arising from those cases and to draw together various common strands from the many cases that have come to our attention.

Members might wish to refer to the summary of the issues that individuals have raised, which is entitled "Summary of views from individuals".

I welcome from the Law Society of Scotland Martin McAllister, who is its president, Michael Clancy, who is director of law reform, Joseph Platt, who is convener of the client care committee, Philip Yelland, who is director of client relations, and Kay Telfer, who is a lay member of the client relations committee. I note that Mr McAllister wants to make a brief—I emphasise "brief" because he has been here before—opening statement.

You have saved me the trouble of introducing people, which shortens my statement.

Is that the statement?

I will mention a little bit about Kay Telfer's background. She is a lay member, not a solicitor. She has over 20 years of experience in the citizens advice bureaux movement, fulfilling various roles. She has been a member of one of our client relations committees for five years.

History and fiction show us that people do not like lawyers. They seem to like them no more than they like journalists or even politicians. We have research results that bear that out. The research shows that people do not like lawyers as a group, but it also shows that people generally like their own lawyers.

As solicitors, we are used to dealing with reality as is the Justice 1 Committee and the Parliament. However, we are very aware of issues of perception. Linked to that question of perception is the fact that any complaints system must strive to win public confidence. The Law Society of Scotland's task is to ensure that we continue to improve our work on complaints and work to gain more public confidence.

I want to deal with another perception. The Law Society of Scotland is the regulatory authority for solicitors and its remit does not cover other lawyers or participants in the legal system. There is also a perception that the regulation of a profession tends to mean dealing only with complaints. I was privileged on 19 June to be given an opportunity to address the committee in a briefing session to explain the regulatory functions of the society, which relate to admission, continuing education and development, indemnity insurance, guarantee fund and professional practice rules.

The committee's inquiry is now focusing on complaints, which is an area where there are winners and losers, rather than winners and winners. However, I must qualify that statement by referring to the work that the society has done in recent years on conciliation. I will come back to that later. We deal with people who are discontented and can be difficult to satisfy, even if their complaint is upheld. It is a responsible task that is delegated to us by statute and by Parliament. We operate within the law that has been given to us. That often gives us challenges and one reason why I welcome this inquiry is that I am sure that the committee will assist us to meet those challenges.

We are pressed to get on to questions, Mr McAllister.

I have a couple of important points to make that will take only two minutes.

Can I cut you down to even less than that? I am sorry, but we want to get into questions. I think that we know about the duality or multiplicity of the Law Society of Scotland's roles. With respect, we want to get into questioning. You might have other important points, but we are already aware of what you have said so far.

Perhaps I can just give you my final statement.

Please do.

The Law Society of Scotland is a statutory organisation and it is appropriate that Parliament reviews the society's work in terms of its statutory framework for regulatory functions, which include complaints.

I am sorry, but that is not my final statement. I will now get to it.

We are open to change and want to make improvements. It is proper that Parliament is reviewing the checks and balances that operate, but it is a fundamental right of citizens in a democracy that the legal profession is independent. Such a profession is a guarantor of the rights of citizens—and in Scotland we deserve no less.

I want to pick up on what the convener said about the duality of the Law Society's role. In your evidence, you have said that the Law Society is charged with the promotion of the interests of the solicitors profession in Scotland and of the interests of the public in relation to that profession. You refer to the difficulties that stem from the duality of that role. How does the society seek actively to promote and protect the public interest? How do you ensure that the interests of the profession do not outweigh those of the public?

That is an interesting issue for the Law Society. We have to be conscious of that duality all the time. The Royal Commission on Legal Services, which reported in 1980, considered that question and came to the view that it would be detrimental to the interest of the public if the society were to be shorn of its responsibility to the public. In effect, it would then become a trade association or trade union. The royal commission thought that it would be better if the society upheld the interests of the public alongside the interests of the profession.

Because of that confirmation of the society's role in 1980, which just followed the introduction of the Solicitors (Scotland) Act 1980, and which was considered again in 1989, we have been able to consider the interests of the profession and the public in tandem. One way in which that is done is by having lay members on committees. It is ensured that the structure regards the interests of the public at every stage. My colleagues will be able to detail the thought processes that go into that.

We are mindful of the interests of the public running alongside those of the profession, and I am sure that, if we failed in that duty, the Parliament would call us to account over that.

The royal commission to which you referred published its report 21 years ago. Time has moved on, as have, quite rightly, the expectations of the public and of all professionals. Perception was mentioned early on. For the sake of argument, what if we just accepted that the Law Society is terribly good and that everything is hunky-dory in your own complaints system? That is not the perception, but let us say that it is. Surely the system needs to change anyway.

The point is that the organisation is changing. We have made a number of changes in how we deal with complaints over the past 10 years. I do not think that the committee would find it useful to go through a list of those, but some key things are important in improving public perception, one of which is greater lay involvement. A second is the improvement in literature, so that the public have a much better idea of how we deal with complaints. We have brought with us our current, revised leaflets.

We can only do our job and deal with the duality if the checks and balances in place are appropriate. It is those checks and balances on which the committee's inquiry is presumably focusing to determine whether they are sufficient. As you said, convener, it is 21 years since the royal commission reported and it is entirely appropriate that Parliament considers the efficacy of the current checks and balances, which include the legal services ombudsman.

How many lay members are there? Is there only one? Is it just Kay Telfer? How does the practice of having lay members on committees work? What is Kay Telfer's opinion on the question of duality?

In practice, complaints are considered extremely carefully in committees. Perhaps it is a question of outside perception; perhaps the Law Society has sold itself short in the presentation of the cases concerned.

I am a reporter on cases as well as a member of the client relations committee. As a reporter, I am the only person who sees the solicitor's file. I have the sole responsibility for looking at that file, for preparing a report on the case and for giving the opinion on it. The client relations committee has the right to question my opinion and change the recommendation if necessary. The complainer and the solicitor have the right to make comments on my report. I still have the responsibility for my report. Nobody else considers it.

Maureen Macmillan asked how many lay members there are. That situation has improved over the years. There are four client relations committees with 10 members, four of whom are non-solicitors and six of whom are solicitors. The fact that, at a given meeting of a committee, four lay members and only two solicitor members might be in attendance does not matter to the work of that committee.

Does anybody else want to come in on duality, which is at the core of the matter? Lord James Douglas-Hamilton wants to ask a question. Is your question about duality?

I want to ask about the rating of complaints.

Does Michael Matheson want to follow up the issue of duality?

I will ask about reporters and lay members. What system do you have for identification and recruitment of reporters and lay members?

Perhaps Joseph Platt is best placed to describe the current arrangements.

I am happy to do that. The positions are advertised in the press and interviews are conducted. I think that no member of the council of the Law Society of Scotland has been on the two most recent interview panels, which have been chaired by the sheriff principal for Lothian and the Borders. The competition for the posts is open. People apply, their applications are considered, interviews take place and appointments are made.

How frequently do you overturn the recommendation of reporters? What percentage of recommendations are overturned?

Are you asking how often the client relations committees overturn a reporter's recommendations?

Yes.

We do not have precise statistics for that, but I think that it is fair to say that it happens regularly. In a decision or two every month the reporter might find that the client relations committee takes a different view on some aspects of the matter; the reporter's recommendation might be rejected and the committee might make a different recommendation for the final disposal of the matter.

Kay Telfer is a member of a client relations committee and it would be wrong for me to speak for a member of a committee, but it would be wrong to think that a client relations committee's view of matters divides down solicitor and non-solicitor lines.

It is also fair to say that a reporter, who considers a matter in isolation and looks at all the relevant papers, may take a view but then, after discussion with the committee, say, "I think that I missed something and would like to re-examine the matter."

My question was connected to Kay Telfer's comment that the reporter is the only person who sees the solicitor's file. They then compile the report, which goes to the committee with the reporter's recommendation. From what you say, it appears that the reporter's decision is overturned by the committee in a substantial number of cases.

There are a number of such cases. It might help if I explain that, once the client relations committee receives the report, it is sent to the person who has made the complaint and to the solicitor for comments before it comes before that committee. The committee sees the reporter's report and the comments of the solicitor and the person who is dissatisfied, so it may pick up whether something has been missed or viewed in a different light. Both parties have a chance to see and comment on the report before the committee considers it at all.

Remember also that the recommendations can be overturned positively as well as negatively.

Of course, I have no doubt about that. I am just interested in the percentage.

I will ask a question that is fundamental to complaints in general. A criticism of your complaints procedure has been that those who take up the representations might also be those who decide on them. Could the Law Society have a complaints procedure whereby those taking up representations would be separated by firewalls from those dealing with the complaints so that any accusations of a conflict of interest could never be made? If that could be done through having two separate organisations relating to the Law Society, would that be feasible and what would be the structure?

I am unsure what you mean by "taking up representations".

I understand that, if a complaint is sent in by a lawyer, the person dealing with that complaint could conceivably be concerned with resolving it at a later stage. The separation of interest is not as clear as it might be.

The person who deals with the complaint is one of the case managers, who is an employee of the Law Society and is entirely neutral. He or she would not take up anyone's side as their duty is to investigate the complaint.

What appears to be concerning you is that, if a client relations committee of the Law Society recommended to the council of the Law Society that a complaint be upheld, a solicitor might instruct a member of the council to make representations on his or her behalf when the matter was being decided. However, by the same token, at that same council meeting, the recommendation would be spoken to by the convener of the client relations committee that made the recommendation. From an adversarial point of view, there would be someone representing each side of the case at the council.

We are considering having a separate system but, without the delegated powers that we seek, the Solicitors (Scotland) Act 1980 still constrains the council's decision.

If members are concerned about the process by which matters are considered, they should read pages 25 to 27 of our leaflet, which shows a flow chart of the process. I repeat the invitation I made in June that, if any members of the committee want to see the process in action, they would be welcome.

I am not sure that you have entirely addressed the question that I was focusing on. Might it not increase public confidence in the system if it were generally perceived that there were two separate organisations that were separated by firewalls: one that handled the complaints as they came in and one that adjudicated on them in due course?

I reassure the committee that, in serious matters of professional misconduct, two separate organisations are involved as those cases are decided on and prosecuted before the Scottish solicitors discipline tribunal, which is an independent body.

Why, then, are there accusations of conflicts of interest?

People—including some solicitors—seem not to understand that the solicitors discipline tribunal is an independent body.

Is there scope for increasing the legal powers of the ombudsman?

Anything that would improve public confidence should be considered. I was interested in the submissions that were given to the committee. In the UK, we have three legal service ombudsmen who all have different powers. In particular—

I am sorry, Lord James, but I would like to leave the issue of the ombudsman to one side for the moment as it is a separate issue.

The flow chart in the leaflet tells us that the client relations committee considers all the evidence and makes recommendations to the council. Then both parties comment on the recommendations before the papers go to the council and the council makes a decision. That is the point that I want to ask about. I understand that a solicitor against whom a complaint has been made has the opportunity to comment before the council makes a final decision on the complaint, yet the complainant does not have the same opportunity. Is that the case?

No. Once the committee has made a recommendation in relation to the disposal, both the complainer and the solicitor are given an opportunity to comment. Their written representations accompany the report, the opinion and the minute from the committee that sets out the recommendation for consideration before the council.

The complainer and the solicitor against whom the complaint has been made both make written representations, but does the solicitor have the opportunity to appear before the council?

No. However, you have hit on an interesting point, convener. The absence of delegated powers under the Solicitors (Scotland) Act 1980 means that the council has to determine such issues. Each month, the council must deal with issues such as complaints of inadequate professional service and the reports of committees on that. Prior to the legal advice that we got a couple of years ago on the operation of the act, the committees made the decisions and the council did not have an opportunity to consider them. I qualify that by saying that, initially, the council made the decisions and gradually a procedure was developed in which the committees dealt with service complaints, because of the absence of delegated powers. I know that the Justice 1 Committee is aware of the difficulties that that presents and of the draft bill to address them that we are currently promoting. The council still has to look at each complaint because that is what the law tells us we must do.

We are told that lay involvement takes place early on. Is there any lay involvement in the council?

No.

Whom does the council comprise?

The council comprises 51 solicitors who are elected on a geographical basis or who are co-opted, such as people in public service or in-house lawyers. An academic who is also a solicitor is usually co-opted to the council.

Do you think that there should be lay involvement in the council?

As we have said, there is a question of public confidence in relation to matters concerning complaints. That is why we are considering the issue. The fact that service complaints have to go before the council, which has no lay involvement, is not helpful. In matters where there is determination of a solicitor's conduct and, potentially, prosecution before the solicitors discipline tribunal, it should perhaps be reserved to solicitors to determine. I consider as unhelpful the absence of delegated powers and the fact that service matters require to be dealt with by the council.

Perhaps I can correct a misperception. Members should bear it in mind that the recommendation going to the council comes from a committee on which there are non-solicitor members—indeed non-solicitors are sometimes in the majority. It would be wrong for the Justice 1 Committee to have the impression that the council regularly or routinely overturns the recommendations of committees. The council does not rubber-stamp the decisions or recommendations of committees, although those recommendations are followed in most cases. The committees consider the matter in depth and, in general, the council is satisfied. The council takes into account further representations made by the person making the complaint, the solicitor or both. If the Justice 1 Committee is concerned about that, members might want to ask Kay Telfer about the matter.

I refer to the first column on page 22 of your submission, which shows that 383 complaints were disposed of by the council and 148 were dismissed. How many of those decisions varied from the recommendations of the reporter or of the Law Society committee?

I cannot give the committee an exact figure, but the answer is very few.

I appreciate the fact that you might not have exact figures, but it would be helpful for the committee to have a paper that could advise members of that information.

If you have information on any of the other questions that have been directed fairly specifically at you, it would be useful if you were to provide the committee with it. We will return to the Law Society on the matter.

Before we leave the matter, I should make an important point of clarification, convener. Your question was whether the solicitor has the right to appear before the council about a complaint. I said that the solicitor does not have that right. However, the solicitor has the right to ask a council member to make representations on his or her behalf. I do not want there to be any confusion on that issue.

Does the complainer have anyone making representations on their behalf?

The convener of the Law Society client relations committee makes representations on behalf of the complainer. Having been the convener of such a committee for three years in the early 1990s, my experience is that conveners fight tooth and nail to defend the committee. In a sense they are acting as the advocate for the decision of the committee. I do not know whether you want us to expand on that.

A batch of members now have their hands up. I will take a question from Maureen Macmillan and then one from Gordon Jackson.

I will save my question until later.

Gordon is saving himself, so I will take a question from Maureen before I ask Lord James Douglas-Hamilton and Donald Gorrie to come in.

I want to ask quickly about the solicitors discipline tribunal. Who sits on that? Are lay members on it?

There are lay members. The constitution is set out in schedule 4 to the Solicitors (Scotland) Act 1980. The details are that the tribunal is constituted by

"(a) not less than 10 and not more than 14 members … who are solicitors recommended by the Council as representatives of the solicitors' profession throughout Scotland, appointed by the Lord President of the Court of Session, and

(b) 8 members … who are neither solicitors nor advocates, appointed by the Lord President after consultation with the Scottish ministers".

Does Gordon Jackson want to ask about the discipline tribunal at this stage?

The point that the Law Society makes is that the discipline tribunal is entirely independent of the Law Society.

That depends on what you mean by dependent.

That is the difficulty. You said earlier that the tribunal was a separate body. There is not a perception that it is a separate body.

I declare an interest in that I am, obviously, a lawyer, but I have also appeared before the solicitors discipline tribunal representing a solicitor. Even I, having a vague understanding of those matters, felt like I was appearing before lawyers who were dealing with the lawyer. The lay members were there, but it seemed like the real power in the place was the lawyer—the chairman is a lawyer. That is anecdotal evidence, but it is my anecdote.

I wonder whether there are ways in which the Law Society could increase the perception that the tribunal is a separate body, perhaps by having a non-lawyer chairperson. Appearing before the tribunal, I was conscious that I was appearing before lawyers who were sitting in judgment on a lawyer. I am not saying that that meant that the tribunal was soft—I think that people are sometimes harder on their peers, but that is not the issue. The issue is the perception of transparency. Are there ways in which that could be improved as a matter of presentation?

The presentation is important. As president of the Law Society, I know a minimal amount about the workings of the solicitors discipline tribunal. That is perhaps an indication of my ignorance or an indication of the fact that we have nothing to do with the tribunal, other than prosecuting people before it.

We are trapped by the Solicitors (Scotland) Act 1980, in as much as that the council has to make nominations for membership. I can understand the perception difficulties with that. The committee might want to examine the matter and consider whether there are alternatives. As far as the workings of the tribunal are concerned, there is a complete separation of powers. It has its own clerk and deals with its affairs in its own way. It is a judicial body.

The fact that the council recommends the membership creates a perception.

It only recommends the lawyer members.

But it recommends the majority of the membership. That creates a perception, because you know and I know that who you pick to do something affects how it gets done. I am not saying that the council does this, but there is the potential for the council to pick someone who may not be as independent-minded as might be thought. I am not saying that that happens—it has not been my experience. Are there ways in which we could improve that, albeit that it would need statutory change? The first step is to decide what we want to change, then we must consider how we might do it.

The attempt that we have made towards improving the situation—we are still trapped by the Solicitors (Scotland) Act 1980—is that recently the process has been done by open advertisement.

What do you mean by open advertisement?

What has happened over the past few years has been that members of the profession have been invited, by advertisement in the Journal of the Law Society of Scotland, to apply if they want to become members. Any solicitor in Scotland can apply. Consideration is then given to nominations that might be made to the Lord President.

There is considerable pressure for a clearer separation of interests. How best could that be achieved? It may well be that you cannot give a quick answer this morning. It would be helpful if you could give us a short paper. You said a moment ago that a member of the council can represent the solicitor. Separation of interests could be clearer and more distinct than it is.

We would be happy to examine that matter. With the tribunal, the separation of interests—or the perception of separation of interests—could be helped by statutory change.

It is a problem of perception rather than reality. The committee will probably be aware that the society prosecutes solicitors before the tribunal. It may be unhappy with a decision and will appeal a decision of the tribunal to seek something stronger.

Lord James, I suggest that having put that proposal, as we are having the Law Society back and the discipline tribunal representatives are coming next week, we might consider the matter in a paper rather than receiving ad hoc—if you will forgive me for saying that—recommendations.

There are two points. Lord James's concern was representation at council. Mr Jackson raised a concern about the discipline tribunal.

Yes. Those are separate issues. It would be interesting to receive your views on both matters. It would be helpful if you put ideas in writing for the committee to consider rather than discussing the issue now, as we have other matters to get through this morning. We can write out specific questions, which we can circulate to members if they wish, and raise them with you. As I say, you will be coming back to the committee.

I will come back to the interesting evidence from Kay Telfer. The complaints that we have had from individuals include a long list of complaints about the procedure. For example, information was withheld from the complainant, the lawyer got information and they did not, or when they tried to correct information they were told that it was too late or that the procedure did not allow it.

Either there are quite a lot of failures in the system that was described by Ms Telfer or there used to be failures that have since been put right—I do not know how historical some of the complaints are. Another possibility is that some of the complainants are not fully aware of the process and complain in ignorance. Looking at the procedure from the outside, how do you feel about it? Does it help complainants to go through the process properly, as in the leaflet? Is the balance kept fairly between the complainant and the lawyer? I would welcome your views on those matters and on how to improve the system.

The way that complaints are dealt with has improved tremendously, even in the five years that I have worked with the client relations committees. Things have been tightened up and procedures have improved. The standard letters and the leaflets have been simplified so that they are much less legalistic and much more understandable to the normal run of people—the kind of people whom I see regularly in the citizens advice bureau.

Reporters certainly get every scrap of paper that comes into the building. From looking at the Law Society files, I know that information that comes in from the solicitor is sent to the complainer and information from the complainer is sent to the solicitor. Both parties see copies of everything, unless it has been requested specifically that information should not be transferred. That is very unusual—I cannot remember having come across that.

Time limits are set for responses, but they are very flexible. There are times when the case managers fall over backwards to help the complainers—or sometimes the solicitors. That applies not only when there are simple problems, but more particularly in cases involving people who have problems of communication. The case managers try extremely hard to see those people and might send somebody to interview them at home or to get them help.

We go through a lot of information. I feel quite happy that the client relations committee looks at everything carefully and that the complainers are given all the information that comes in. You also said that some people were told that things had arrived too late. I am not quite clear at what stage that would arise. Occasionally, when representations have been made on a complaint, an extra representation might arrive too late for the committee. Other than that, I am not aware of that problem.

My understanding is that that happens when a case has been put to bed—in the sense that the final decision has not been made, but the committee has finished its deliberations—and put before the Law Society's council. At council meetings, a client relations committee convener regularly—at almost every committee meeting, I would say—stands up and says that further information has come to light and they would like to take the case back to committee. Every opportunity is given for full consideration of a complaint. A client might not be happy with a decision that the committee has taken on the information that has been submitted. That is a completely different matter.

We have a summary of a lot of different individual complaints. Some people seem to feel that the client relations committee is quite honest and works properly, but bases its decision on duff information. That seems to be the thrust.

I want to comment on the information in the summary. Rolling changes have been made over the past 10 years, the past five years, the past two years and the past year. Although someone who raised an issue on the way that a complaint was dealt with four or five years ago might have had a perfectly valid claim then, that issue might have been addressed—the procedures might be different now.

I want to go right back to the beginning of the complaint process. Imagine that I am the person who has written to the Law Society because I am unhappy about my solicitor. Section 33 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 states what one of the society's first obligations is:

"Where any person with an interest has made a complaint (a ‘conduct complaint') to a professional organisation that a practitioner has—

(a) been guilty of professional misconduct; or

(b) provided inadequate professional services,

the organisation shall investigate the matter."

We go right back to the beginning of the flow chart in your help leaflet—"Dissatisfied with your solicitor"—where it says, "Investigation starts". Who decides and how is it decided—what definition is used—that the matter is a complaint under section 33 of the 1990 act?

The easiest way to describe that is to say that that is the job of the case managers when they look at the letters that are received. They will look at the definition that you just referred to and decide whether the complaint is about the solicitor's conduct or about the service provided. For example, someone might say that their case has taken too long, if there has been a failure to communicate. The case managers will also consider whether the person has got an interest to complain. If they decide that the complaint falls into one of those categories, consideration of how to deal with the matter can start. If it is a complaint about service, as you will see from the flow chart, it might flow down the conciliation route with an attempt to resolve the complaint. If that is not possible, the complaint will move into the written investigation.

The case manager makes that decision.

Yes.

So I have written in to the case manager. I take it that the case manager is one person.

Yes

What does the case manager have in front of them when they are considering whether or not I have a complaint?

The case manager will have in front of them the actual letter of complaint or the help form that has been completed. They will also be aware at that stage of the terms of the 1990 act and what we can and cannot do. The complaint letter is initially judged on that basis.

There is no file or anything else—just the letter.

There is nothing else at that stage. One of the improvements that we have introduced in recent years is that if we are going to start the written investigation we write back to a complainer saying what we think their concerns are. That ensures that we understand what they are complaining about so that we do not go off on the wrong track. When we set off we know what their concerns are and can put those to the solicitors and get a response. For the committee's information, that is covered on page 27 of the help leaflet, where it mentions "Head(s) of complaint confirmed".

I want to consider again the tight definition in section 33 of the 1990 act, which refers to "professional misconduct" and "inadequate professional services." How is that defined? How do we know how that is defined, let alone the person who makes the complaint and is told by you that it is not a complaint with which you can deal? What do those definitions mean? Obviously the person thinks that they have a complaint—that is why they have come to you.

Almost anything could form the basis of a complaint about inadequate professional service. An enormous range of areas of complaint might form the basis of a complaint about professional misconduct. Professional misconduct is defined by law and it is for the society to decide whether what is complained about might amount to professional misconduct. If it is decided, after the complaint has gone through the process, that there might be professional misconduct, it is for the society to decide whether to prosecute. The answer is that there is nothing that precludes any concern that a client has about a solicitor's conduct or service from being considered. These issues are also dealt with in the help leaflet.

It is one of the strengths of the system that on the face of it, at first blush, nothing is shut out. The society will consider every concern that a client has about a solicitor, to see whether that concern could form the basis of a complaint under either of the provisions in the statute. We are constrained by statute. However, our system is more open than many others in which areas of complaint are quite narrowly defined.

Say you reject my complaint. Can you give me an example of something that would not be a complaint because the case manager has decided that?

Sometimes someone might complain that the solicitor for the other side had done their job too well, or something like that. There could be areas where the person might not—

Well, that is an easy one. Talk about my solicitor. It is my solicitor that I am complaining about. That is an easy one to give as an example. I am unhappy about my complaint. What have I put in my complaint that would make it fall outwith your wide-ranging definition, which you tell me is very flexible? I am unhappy with the service that I have got. I am unhappy about paying for it.

I draw the committee's attention to what page 3 of the help leaflet indicates. It gives a broad explanation as to what misconduct and inadequate service might be. If a person wrote to us and said that they are happy with their solicitor's service but think that the solicitor charged too much, that would be an example of an issue that might not concern inadequate service from a solicitor.

Whether the solicitor is entitled to charge what they did and whether the charge is fair or excessive is a matter that is not within the Law Society's power to determine. The matter is determined by a process that is known as taxation, which can take place before either the auditor of the sheriff court or the Court of Session. If somebody sends such a letter, we have an information sheet that we issue. We always say, "Please come back to us if you think that we have misunderstood your concerns."

If a complaint is rejected or not accepted, the person who wrote in is also advised that he or she may take the matter to the ombudsman. Sometimes the ombudsman will consider a complaint and say that the Law Society was wrong and that it should consider the matter. The ombudsman will then recommend to us that we open the complaint and, in general, we do.

Joseph Platt has provided a link to the ombudsman. Does anybody want to take up that cudgel?

I want to talk about an issue that was mentioned earlier. The complaints that I receive are not so much about getting into the complaints system as about decisions that have been arrived at and the way in which things have been conducted. That goes back to Martin McAllister's point. It was said that a solicitor who has had a complaint launched against him can have a council member make representation for him in the council. I take on board the fact that the convener of the client relations committee could be the advocate for the person who made the complaint. What is the relationship between the convener of that committee and the client who made the complaint? Does the convener sit down with the client, go through the case and tell them what they will do when they go to the council?

No. The convener of the committee defends his minute—the committee's decision or recommendation. The convener does not take instructions, if you like, from the person who made the complaint. In service matters, it might be thought that that is inappropriate, but it is what the statute tells us to do. Prior to the advice that we must do that, committees dealt with such matters themselves.

I want to correct what may be a misconception on the part of the committee—that the council will always decide in favour of a solicitor. That is simply incorrect. The committee minute may recommend dismissal of a complaint, but the council may think that it should not be dismissed. The committee's recommendation may be for a disposal that falls short of prosecution, but the council may think that the conduct of the solicitor as relayed in the minute and the papers is more serious and will recommend prosecution. The council will not necessary decide in favour of the solicitor. It is constrained by the statute to decide. Its discretion is not fettered—it decides matters fairly.

With all due respect, committee members are aware that the council sometimes makes decisions against solicitors. I am not saying that it always makes decisions in favour of solicitors. The issue of perception is crucial. There is a major hotspot between the council and the discipline tribunal. I want to be clear. Is the council member who can make representation for the solicitor in a position to take instruction from the solicitor whom the complaint is about? Can the solicitor whom the complaint is about make representation to a council member? Is the council member in a position to meet that solicitor so that the solicitor can give them instruction?

That could happen. Also, a council member who has not had any contact with the solicitor complained against—who does not know or has not spoken to that solicitor—could say to the council that they think that the committee should consider the matter again. The member of the council could say that they have considered the council's deliberations and think that the committee has got it wrong and would like the convener to take that back to the committee and consider it. The convener may say, "No. I want council to determine it. I am moving my minute." There would then be a vote.

It is an issue of balance of representation.

That is why I was careful to raise that point.

I am sorry, I will have to stop the discussion. We have a full agenda this morning. We will have you back. It might not be in January. I know that you may want to raise other issues as we gather more evidence. I thank you all very much. You will be back in late January or early February. We will be in touch as soon as possible, as we know that diaries have to be done.

Thank you, convener. I will make this invitation again. As so much of the discussion has been about process, it may be useful for committee members to come along and look at the process.

We will consider that.

I welcome to the committee Alistair Clark, who is chairman of the Scottish Conveyancing and Executry Services Board, Ms Margaret Burns, who is a member, Duncan White, who is a member, and Eric Simmons, who is the secretary.

I understand that you would like to make a brief introduction. You heard the comments that I made to the previous witnesses about the time constraint. In fairness, the committee knows less about your organisation than it did about the Law Society of Scotland. We start from a lower threshold of knowledge.

Thank you for asking me to speak. I am aware that there is a time constraint. I will keep my introduction as brief as possible.

As has been said, I am chairman of the Scottish Conveyancing and Executry Services Board and a former practising solicitor. The introductory information has been typed out for the committee.

Thank you very much. I have just been handed your introductory statement. It is longer than we require. As we have it before us, I suspect that members would be content to proceed with questions. I am sorry, as it seems impolite, but we are under extreme pressure this morning to get through a great deal of business, especially as the committee must prepare for its stage 1 report on a bill.

I am anxious that the board's points—

You can mention any points that you want to highlight, bearing in mind that we have received your introductory statement.

I would like to refer to one addition.

In the second paragraph on the second page, I refer to our complaints procedure, which we have written down on tablets of stone. The procedure relates to independent qualified conveyancers. Oddly, there is no similar complaints procedure for independent executry practitioners.

I am sorry—which paragraph are you on?

At the end of the second paragraph at the words, "circulation to this committee." Do you see that?

Yes.

It says:

"copies of which have been lodged for circulation to this committee."

Oh, yes.

It is on page 2.

I have not found it.

The page starts, at the top, with the words:

"Perhaps I could talk to the Terms of—"

Yes, I see that.

Then there is the first paragraph of normal type, as it were.

That is it:

"So far as the existing systems and procedures"

and then you have,

"75% Lay Membership, deals with complaints in terms of—"

Yes, before "75% Lay Membership"—

Oh, I see.

At the end of that paragraph—"circulation to—"

Right. Have all members now followed that? It is at the end of the first paragraph. I am the only one that has not followed it, obviously.

I refer in that paragraph to the procedure that we have for conveyancers. There is no such procedure for independent executry practitioners although, if there were a complaint against an executry practitioner, we would follow the system for complaints against qualified conveyancers.

I would like to point out an omission on the third page. The first paragraph ends with the phrase:

"of the other systems which is really a".

Some words are missing. The line should end with the words "really a matter for the Justice 1 Committee."

How many people are registered? How many independent conveyancers and executry practitioners are there?

Not many. Eric Simmons will be able to give members precise up-to-date figures.

We have 13 registered members, one of whom is independent.

Are those people conveyancers or executry practitioners?

People can register on the conveyancing register and/or the executry register. Of the 13 members, four are registered on both registers. They are not different people: they are the same people with two skills.

How many are on the conveyancing register?

There are 13 altogether.

How many are on the executry register?

Four.

Is that four of the 13?

Yes.

Four of the 13?

Absolutely—Four of the 13. There are 13 in total.

Right. Is that for the whole of Scotland?

Yes.

Is the figure surprising? Did you expect that there would be more members? It is a terrible thing to admit as a lawyer, but I never knew that the board existed until today. That is an incredible confession to make. Its existence totally passed me by. Is there a lack of awareness of the board's existence?

The situation is historical. It seems to me and to the board members that most organisations, boards and societies evolve out of existing groups. That was the case with the Law Society of Scotland, but not for us. We had a learning curve to follow, as far as the public and practitioners were concerned. At one stage, it became very difficult to publicise our existence when we did not have any practitioners. However, practitioners are gradually coming through the universities. We need more time and the quinquennial review thought that we needed more time but, as members probably know, we are under threat of execution.

Aren't we all?

The situation is improving, albeit gradually. The figures are not as good as we hoped they would be.

How many complaints have you had since your inauguration in 1997?

Two—one of which is current and one of which has been completed.

How long does the process take? You say that one complaint is current and one has been completed. When—so that we know what statistics we are talking about—were the complaints lodged?

I am sorry, convener. You are asking—

—about the two complaints since 1997.

Margaret Burns dealt with one, probably about a year ago. I am currently dealing with the second complaint.

I see.

On the length of time that it takes to deal with complaints, we have a timetable that we must follow. The maximum time would be 28 and a half weeks; but it could be as short as 10 or 12 weeks.

Are you talking about the number of complaints received or the number of defined complaints?

I am talking about two complaints that have gone into our system for dealing with complaints against practitioners. Both have been designated as serious complaints in terms of our regulations.

What representations have you received that have not been designated as complaints? That is what I am trying to get at. Were there only two?

We have a wide definition of "complaint". People need not put a complaint in writing or anything like that. The way our procedure works is that we will examine anything that we think stands up. That might be a bit of a problem if we received significantly more complaints, but we have had only two.

The questions that I was going to ask have probably already been answered. I was interested in the proportion of lay members on the board—you said that such members account for 75 per cent of its membership. How do you choose the members of the board?

Perhaps you could also tell us a little more about your definition of a complaint. What is the process for determining whether to take a complaint forward?

The members of the board were appointed by the then Secretary of State for Scotland and have continued in office since then. I presume that Scottish ministers would now deal with that. Almost all the members were appointed in the first instance for five years or less. Because our position is being reviewed, those appointments are being continued for three years or for such lesser periods as might be necessary.

The act that set up our organisation specifies where board members must come from. Some represent the interests of consumers; that is why I was appointed. Other types of people are also specified in the legislation, and the ministerial appointments come from that.

Are the appointments publicly advertised?

I do not know. It would be for the Scottish Executive justice department to answer that. Initially, they were not advertised, but that was before the Nolan committee made its recommendations.

I assume that appointments are now advertised.

I think that they would have to be.

One would assume that.

How do you determine whether a complaint is genuine?

You must remember that we have a completely novel complaints procedure; I have never seen one like it. There are very strict time limits and attempts must be made to keep all parties informed of what is happening and when, so that there is no uncertainty about what the future will hold as far as time and action are concerned. We feel that, because of its novelty, there are areas in which some refinement of the procedure might be desirable. We can refine the procedures, because they are the board's own procedures. They can be changed subject to the consent of ministers. We feel that there is room for change in the definition of what constitutes a complaint and what does not. In the meantime, determination of a complaint is left to the complaints officer, who happens to be the part-time secretary.

The board's view is that, in the light of recent experience, there should probably be some refinement to create guidelines as to what constitutes a complaint and what does not, rather than leaving that to the complaints officer to decide. He could throw out a complaint right at the start. A complainer could appeal to the ombudsman.

Have you rejected any complaints? You have had so few that perhaps you will want to deal with every one that comes along.

No. The way in which our regulations are drafted means that there is no option to reject complaints. As I said, almost everything that looks as though it is a complaint must go into a Rolls-Royce process involving a board member. There is not much leeway for the complaints officer to say that a complaint is not serious. We must investigate and do the whole works on anything that stands up half way. That has been fine until now, but it might be difficult to manage if there were many more complaints.

That is a point about which I was going to ask you. As you get busier, you will obviously have to be more selective or have a bigger board.

As I said, we are not sure how the system would be affected if we had even a reasonable increase in the number of complaints. There is a question about whether we would be able to manage.

We have a definition of complaints in our rules, which goes some way to answering Maureen Macmillan's question. That definition states:

"‘a complaint' means a complaint which is made to the Board in connection with the provision of conveyancing services by a practitioner".

That could include a non-serious complaint or a serious complaint, but the definition is

"a complaint … in connection with the provision of conveyancing services".

The rules go on to define a "serious complaint". The definition lists a number of criteria including,

"that a practitioner—

has been guilty of professional misconduct;

has provided inadequate professional services;

has failed to comply with regulations …; or

has been guilty of a criminal offence".

Serious complaints are defined clearly in our procedure.

The initial classification is as a "complaint"; in which someone says that they are unhappy with the way in which a practitioner has dealt with something. The complaints officer must then decide whether the complaint is serious and whether the procedure for serious complaints should be invoked.

In effect, your organisation is a quango. I am keen to determine the costs of operating that quango. For example, how many staff are there? Do you feel that the number is sufficient for you to deal with an increase in complaints as a result, for example, of your receiving a large number of complaints after your appearance before the committee today?

Our organisation is certainly a quango. On costs, the secretary probably has the figures at his fingertips.

Our running costs are about £120,000. However, within that figure is a rather large sum for professional indemnity insurance. The situation is rather unusual. Qualified conveyancers who work for a solicitor are covered by the solicitor's master policy and do not need insurance from us. Independent conveyancers pay their part of professional indemnity insurance. However, when the board was set up, to ensure that there was proper protection for the public, it took out a professional indemnity policy that covers all its members. The irony is that, of the 13 members, 12 are covered by a solicitor's master policy and one pays her own premium. Although there is nobody else left to insure, we still carry a professional indemnity insurance policy and a separate compensation fund policy. Those figures are included in the running costs.

There are two staff: an assistant secretary and me. We both work part time.

I appreciate, convener, that that question is not quite—

I wanted to keep to questions about the complaints procedure and come on to the board later.

The point that I am trying to determine is whether, if the board received a large number of complaints tomorrow, it would be able to deal with them. I appreciate that there are only two part-time members of staff. Would you be able to deal with an increase in complaints?

The problem would not be for the staff but for the board. Under our complaints procedure, the investigation is made by a board member. As complaints officer, I consider the case initially, but thereafter it is put into the hands of a board member. The board members would be put under pressure if there were a large increase in complaints.

Will you advise me of the procedures by which the lay members would be involved in the complaints process? We have heard from the Law Society of Scotland about its procedures.

I am a lay member of the board. Our complaints process is that a complaint, right from the get-go, is handed to an appointed board member to investigate, to form a view on the facts and to make a recommendation to the board. The whole board takes a final view on that recommendation.

As Eric Simmons said, the problem is not to do with staff. Our complaints process requires board members to handle complaints. It is a part-time board and there is a big question about whether the members would be able to handle a big increase in complaints.

We have had two complaints so far. Margaret Burns has handled one and I am handling the other. We can cope with that. We then report to the board so that it can make decisions on the complaints. If we were snowed under by a large number of complaints, I do not know whether the board would have enough members to cope. However, so far we have been able to handle comfortably the complaints that we have received.

I am interested in the composition of the board. Is that what you want to ask about, Lord James?

I want to ask about that and the future of the board.

We are aware of the proposal to abolish the board and to hand its functions to the Law Society. Do you have any comments on that proposal? As a minister at the time, I was involved in the legislation that created the board. Do you consider that the board has made a successful contribution?

I do not think that the board's contribution so far has been as successful as we had hoped. As you know, there is a similar organisation in England, where there are approximately 600 or 700 licensed conveyancers. After a sticky start, that organisation has become quite successful and, as I understand it, financially independent.

On the basis that our population is 10 per cent of England's, if we had 10 per cent of the English organisation's membership—which is 60 or 70—I doubt that we would be self-sufficient. That is just a back-of-an-envelope calculation. We would therefore have to be more successful than the organisation in England and Wales for us to be self-sufficient.

Nevertheless, as I understand it, the essence of the legislation was to provide competition for the solicitor branch of the legal profession. It might be that the price is worth paying, at least to some extent, in order to provide that competition. We feel that we have not had enough time. The process is developing. Universities are providing courses and people are qualifying. However, not enough people have the courage of their convictions to move out of the qualified state into the independent state.

I want to deviate slightly and talk about cost. A major part of our expenditure is on the premiums on the policies to which Mr Simmons referred, although they have been reduced because of our good claims history. I gave evidence at the quinquennial review and said that we have not been as successful as we would like to be. If we were given more time and were still unsuccessful, we would hold up our hands and say "Sorry. We have not done a very good job." However, we do not think that we are getting the opportunity to do a good job, especially since we have calculated that, if our function was transferred to the Law Society, the saving would come down to something like £38,000 per year. That is not very much in Scottish Executive terms.

That leads to the point that I want to raise. My understanding is that—notwithstanding the review that has already taken place—the Minister for Justice intends that the board's functions be moved to the Law Society for Scotland. He stated that in June.

Given that there are now university courses that lead to qualifications in your field, would the board's time be better used in considering what should happen with the transfer to the Law Society? I understand that that might be signing your own death warrant, but should we consider the way in which the complaints system that you administer could be moved to the Law Society? That would ensure that some of your present problems were addressed and that the process would work effectively if the transfer took place.

We are opposed fundamentally to abolition of the board. Notwithstanding that, we have been willing to join tripartite meetings between the Executive, the Law Society and the board to facilitate the proposed change, if it takes place. However, it is still at the consultation stage.

We have considered how the Law Society will deal with complaints against our practitioners if it takes over. Problems will arise. We are independent of the people whom we regulate. Our members would have to face a committee of the Law Society, although such committees have lay representation. Even when that Law Society committee has made a decision, the matter must be put to the council of the Law Society, which is elected by solicitors. That does not look right.

Although we can discipline our practitioners, the council of the Law Society cannot discipline its practitioners, so the suggestion that is on the table is that the Scottish solicitors discipline tribunal might take that role on. Again, that does not look right, because there are questions about the membership of that tribunal. That is a problem that we have identified will occur if and when the Law Society takes over regulation of our practitioners.

The political decision may have been taken. We are discussing the matter with the Law Society, because we must protect our practitioners and their clients, who have access to a good complaints process at present. It is difficult to see how that will be maintained when the Law Society takes over. However, those talks continue and nothing has been finally decided.

I would like to be clear on this. Is the board being abolished? I understand that the board is being abolished, as Jim Wallace announced on 21 June this year, but you say that the matter is out to consultation.

Abolition is subject to satisfactory arrangements being made. We are still supposed to be in a consultation process. I think that that is the second consultation process. I understood that the matter had still to be finally decided, because much of it relates to complaints procedures, the compensation fund, professional negligence cover and other matters. Those issues are difficult. The Executive will have to work out the cost of and the saving from the change. We have done our calculations, but some are based on supposition. That is because, for example, we do not know what the Executive will pay the Law Society to run the system—I presume that the Executive will have to pay.

I am sorry to race on, but we have much more to do. We must be quick.

In the bullet points at the end of your written submission, you include people's compliments about your complaints procedure. Will you run quickly through your complaints procedure and highlight why you think that it is better than others? I see that you have a tick against the National Consumer Council's criteria.

I cannot compare our system with others. Under our procedure, when the complaints officer, who is the secretary to the board, decides that a complaint is serious, he calls for the practitioner's file and remits it and any papers that he has on file to a board member, who has 20 days in which to submit a draft report. The board member sends part 1 of his draft report to the complainer and the practitioner, who have 20 days in which to reply in writing with any observations. Within 10 days of receiving any replies, or after 20 days, the board member prepares part 2 of his report, which contains recommendations as to what, if any, action should be taken against the practitioner, and recommends whether the complaint should be dismissed at that stage. The board member reports to the board, which considers the report. The board makes its decision within a further 20 days. That decision is sent to the complainer and the practitioner within three days of being made.

In dealing with a serious complaint, a clear timetable governs when tasks must be done under the complaints procedure. The first stage is to establish the facts and to decide, for example, whether the practitioner has provided inadequate professional services. Both the complainant and the practitioner are given an opportunity to respond at that stage. In part 2 of the process, the board member decides what recommendations to make to the board. Finally, the board decides what action should be taken.

I am sorry that your evidence has been rather hurried today. Unfortunately, our timetable means that we are pressed for time. Thank you for coming along. We now know much more about your organisation than we did—Gordon Jackson is not alone in that.