Agenda item 3 is our inquiry into the regulation of the legal profession. I ask members to declare any relevant interests. I know that that seems nit-picking, but we must do that on every occasion.
My husband is a solicitor and a former member of the council of the Law Society of Scotland.
I am a non-practising Queen's counsel.
I am a member of the Faculty of Advocates and have a great many close personal friends in both branches of the legal profession.
I look forward to the story developing in the coming weeks. I am a member of the Law Society and a non-practising solicitor.
The Scottish Consumer Council's evidence states that research on consumers' experience found widespread concern that the body that represents solicitors' interests—the Law Society of Scotland—also has statutory responsibility for investigating complaints against its members. You recommend the establishment of an independent body to deal with complaints about solicitors. Where are you coming from? Do you want no solicitors to be members of such an independent body? Some have made the case that, if the body is to be truly independent, no solicitors should be involved. Would solicitors continue to have a role in the operation of such a body, if it were independent of the Law Society? We must bear it in mind that the Law Society uses lay people at present.
We envisage that the independent body that would oversee the process of complaint handling would not have solicitors on it. There would be a principle of local resolution. In other words, if someone had a complaint against a solicitor, it would be appropriate to go to that solicitor to try to resolve the complaint in the first instance. Also, the Law Society would be responsible for ensuring that its members had handled that complaint properly and would review that complaint as solicitors. However, the independent body would oversee that process. It would not deal with every complaint but would refer some to the Law Society, which would be able to refer the case back to the local solicitor.
Not even to give legal advice about legal details? Would the independent body be entirely focused on the process?
If the body felt that it needed to, it could take independent legal advice. However, in relation to the process by which decisions are made on complaints, our view is that solicitors would not be represented on the independent body because it would be overseeing a process in which most of the work had been done by the Law Society.
How would that differ from the role of the ombudsman at the moment?
The ombudsman does not have the powers that we think necessary, which are to undertake independent investigation of the process; to direct the Law Society to give guidance and advice; and to review cases that have not been referred to the ombudsman by a complainant. The role of a regulator would be more apparent and the powers would have to be commensurate with that role. If the legal services ombudsman were to act as the independent body, we would have no problem with that as long as their powers were significantly enhanced.
I am concerned about the fact that there would be no solicitors on the independent body. Where would the expertise about what the solicitor ought or ought not to do come from?
We envisage that the independent body would review the complaints system. The rules and the standards of the system are clearly set out and there is no reason to think that the members of the body might not understand them, just as the lay members of the current body who gave evidence to this committee can understand the system.
Are you saying that the Law Society would still have a role in reviewing the complaint and that, further up, there would be an independent body that would review the actions of the Law Society?
Yes.
Who would appoint the members of the independent body?
We do not have a view on that.
But that is the difficult part. Someone has to appoint them.
We see two options. One is to enhance the powers of the current legal services ombudsman and carry on with that same system of appointment, which is done by the Government. The second, which was suggested by our colleagues in the National Consumer Council, is to have a wider-ranging board, which would be appointed through the normal process of public appointments.
You use words such as "review" and "oversee" almost interchangeably to the extent that I find them meaningless. What does "oversee" mean, for example? What precise sequence of events are we to understand by that word?
I am sorry if my words are confusing. I am trying to describe the range of powers that an independent body would have to have in order to ensure that a system of complaints handling was undertaken, without making that body undertake all complaints handling. Such a body would have to have powers to direct how complaints should be handled—either at the local office stage, by a solicitor, or by the Law Society at the second stage. It would need the power to investigate how complaints were being handled without needing to have a complaint made to it. In other words, it should be able to take a sample of complaints and investigate how they had been handled by the intermediary body—the Law Society. The body would need power to give direction to the Law Society or to the individual solicitor about how to deal with a complaint and, if the independent body felt that it had not been dealt with satisfactorily, which outcome should be different.
I am not against beefing up the powers of the ombudsman. However, I get the impression from your comments that beefing up those powers might be enough—we would not need a separate quango.
The convener asked who would appoint the body and how would it work. We have two options: to beef up the powers of the current ombudsman or to appoint an independent body. We do not have a view on which is the better option. We are saying that there must be an independent body with sufficient powers to oversee the process of complaints handling. We accept that that could be brought about by increasing the powers of the current ombudsman. The alternative is to appoint a board, following Nolan. That is what our colleagues in England have proposed. We have no evidence to suggest which option is better.
Let us assume that it is better to expand the powers of the ombudsman. What relationship would he have to the disciplinary tribunal, which is the ultimate sanction for solicitors? The tribunal sits in judgment over a solicitor and sometimes throws them out. Would those tribunals continue? Would the ombudsman have the power to refer cases?
Our basic criticism of the current system is that it does not focus as well as it could on redress to the consumer. The disciplinary tribunal is about disciplining the professional member. We see no reason why the discipline of professional members should not be dealt with by the profession; however, we are concerned about complaint handling and redress to the consumer.
You are separating those elements. I understand that.
Some of the evidence that we have heard is that people feel that when a matter goes to the disciplinary tribunal—where the solicitor is disciplined—that does not address their complaint. Rather, it addresses the professional competence and future of that solicitor. We understand that there should be a disciplinary process, but we want the complaints handling system to be focused on the consumer. If the complaint is upheld, there may well be a case for the professional body, with appropriate supervision, to take disciplinary action against one of its members. At the moment, those elements are mixed up.
That could be reversed. Presumably if something came up during a complaints procedure that may or may not require disciplinary proceedings, it could be routed that way.
I think so. Most of us have experience of employment law and we try to keep the two elements separate. If there is a complaint against an individual, we deal with the complaint. If the complaint is upheld, we go through a different process to find the appropriate action to take against the individual. The mixture of the two elements creates confusion and difficulties.
We might have pre-empted Donald Gorrie's questions.
No, not at all.
There is a danger of the general public seeing a role for the legal profession as being a continuation of a conflict of interest. Therefore, the independent body, which might be the ombudsman or another body, must be sufficiently robust in its dealings to create confidence as necessary. The downside of missing out that middle stage is that a large and complex organisation would deal with complaints that might be routine and which could be dealt with by and referred back for local resolution. We see no reason to create a large public body to do that. We have confidence that complaints can be dealt with in that way by the Law Society.
We think also that it is important that the Law Society still has a role in the regulation of the profession in regard to complaints, because that is the only way in which the Law Society would be aware of problems that exist within the profession and the only way in which it could help to maintain and improve standards within the profession. It is important that the Law Society maintains its complaints role for that reason.
If we accept your model, is it really sensible to have your sort of supervisory board and the ombudsman? Is not the solution to give the ombudsman more staff and powers? Politically, to invent yet another quango is an unattractive but not impossible position.
We are perfectly aware of the difficulties of trying to create another organisation. That is why, in some respects, we put forward two possible models to express independence. From where we sit, the ultimate model would be the independent body that—for clarification—could take advice from lawyers about matters that it looked at, but it would not necessarily have lawyers as members: the independent body would be able to take legal advice. That closes the loop a bit on the convener's earlier question.
I want to clarify that. You said that an independent body and the ombudsman were alternatives. You now say that you pitch for the independent body.
No. I am saying that we have put forward two alternative ways of expressing independence. Where we are coming from is probably consistent with many other views: to express independence in the clearest way possible and to get the maximum amount of confidence, we must have a totally independent body. However, if that is not possible, our position is that the ombudsman's role should be enhanced.
So your preference is for the independent body. That is my point.
Ideally, our preference would be for the independent body. We are saying that we have locked too much into that way of helping to express independence, but we are not hidebound to that as the ideal. We are saying that independence can move between one concept and the other.
I have three questions. First, if an independent body were established, how do you envisage it being funded?
We do not have a definite view about that. However, it must be borne in mind that the existing system, which is funded by the legal profession, costs a lot of money. I understand that the current cost of the Law Society's complaints department is around £386,000 a year.
How much?
The cost is around £386,000. One option for funding an independent body might be to ask the legal profession to pay for at least some of the cost of running that body. We like also the new financial ombudsman service's model, which proposes that the financial services industry fund its work by a combination of a general levy on all firms—as the Law Society currently does—and a "user pays" element, which means that if a firm has a complaint against it, it has to pay. We see attractions in that model, but we have no definite conclusions on how the body would be funded.
Is the underlying assumption that the profession would have to bear the extra cost, not the Scottish Administration?
The profession might have to pay at least part of the cost, on the model of the financial ombudsman service. However, there are other possibilities and we have not come to a conclusion on the matter.
I see. When and how did you carry out the research? Was the research based on a questionnaire, telephone polling or interviews?
The research was based on a questionnaire and was carried out in 1998. Questionnaires were sent to everyone whose case was closed by the Law Society between February 1997 and February 1998—we sent out a total of 1,229 questionnaires, of which 415 were returned. That is a response rate of 36 per cent, which is good for such research.
How did you update the research? Did you find that the Law Society was supportive when the research was carried out? Did it give you the necessary information, if you required any? What problems were highlighted by the evidence that you received from those inquiries?
The Law Society was fully involved in the research from the outset. It had two members on the research advisory group that we set up and was fully involved in the design of the research. The Law Society sent out the questionnaires for us, because for reasons of confidentiality it could not give us the complainers' names.
Did you update your research after you had the initial replies?
No. We are aware of the fact that the Law Society has significantly changed and improved its procedures since that time in a number of respects. I think that there are fewer delays than there were at that time. The Law Society has improved its consumer information, which was one of our recommendations. It has introduced a helpline for complainers and increased the number of lay people on its complaints committees. We welcome those changes.
Our understanding is that the Scottish legal services ombudsman's observations are also that people's perceptions have not changed much, but she recognises that the Law Society has gone some way to address questions that were raised as a result of the research.
You have admitted that the difficulty lies in perception and that you cannot comment on substance. I suspect that none of us here can do that. I do not underestimate perceptions. Every politician knows the value of them.
We are saying that that is one possibility, given that solicitors are already paying a subscription to the Law Society to cover the complaints procedure.
Would that be your proposal if you were making a proposal? Is it just a suggestion?
It is a suggestion at the moment. We have not examined the detail of how an independent body might operate in Scotland in these circumstances.
Would they have to pay, regardless of whether the complaint was upheld?
We have not gone into the detail.
Does not that seem a bit unfair? I am playing devil's advocate. There could be complaints about a large firm of solicitors and none might be upheld.
We can put forward only the consumer view. There might be other points of view. Our view is that the system should be operated and paid for by the firms. Ultimately, that comes back to the costs that the consumer has to meet. At the moment, we believe that the way that we suggest is the fairest. We think that those who are called to answer a complaint should pay an amount. We have not done any specific work in the area of independent legal services, so we have only a general view on that.
I am still unsure about the size of what you propose. You talked at one stage about sampling and about keeping an eye on everything that is going on, from solicitors firms sorting out problems that arise locally to the Scottish Solicitors Discipline Tribunal. How hands-on do you expect an independent body to be? How many members do you envisage? If the body is to duplicate what the Law Society is doing, it will be rather large.
I agree. We have not brought a specific idea of how an independent organisation might operate and what it might cost. We are bringing a criticism of the current system and have asked the committee to review that system. The next stage, from our point of view, is to say that if the committee concludes that more independence is needed, we will consider that.
May I move on?
Does anybody want to follow that up, or will we move on?
Is Maureen Macmillan going on to something completely different?
No. I just wanted to try to broaden out why the witnesses wanted an independent body to be established. They identified the lack of public confidence in the present service and the lack of focus on the consumer, as they see it. Do they want to mention other factors?
Our major concern is that consumers should have confidence in any body that deals with complaints. That means that the body has to be independent and has to be seen to be independent. Regardless of whether the current procedure is fair and independent, people do not see it that way. They see it as being unfair and biased toward the solicitor. That has to be the most important consideration.
I would like to tease that out further. Personally, I am interested not so much in an independent body but in increased powers and all kinds of things for the ombudsman as the gatekeeper. I am not entirely clear—it is my fault—about the role that the Law Society would be left with. At present, it has a complaints committee, to which people send complaints. A squad of solicitors—perhaps as many as six full-time solicitors—at the Law Society do nothing but go through complaints and put recommendations to the council. Complaints are dealt with by the council and, nine times out of 10, the recommendations are carried. Thereafter, a complaint either goes to the Scottish Solicitors Discipline Tribunal or does not.
Let me go back to the beginning. The most important part of our proposal for the process and how it should be run is that solicitors should try to sort out complaints at the initial stage. We do not think that that happens at present. Our evidence is that many people did not get a good service from their solicitor when they complained. We found that about four in 10 people said either that the solicitor or the firm refused to investigate their complaint or that their complaint was ignored. That was how people perceived the system. We think that a practice rule that requires firms to have a complaints procedure, with a delegated person to deal with complaints, should be a fundamental building block of a new regime. Such a practice rule does not exist at present.
Most solicitors would support such an approach. However, I want to tease out what happens at the next stage.
I am just coming to that. Beyond the initial stage, the Law Society should have a role in ensuring that firms comply with a practice rule. We hope that that would mean that fewer complaints reached the next stage. The vast majority of complaints are about lack of communication and delay. If those issues could be resolved at the initial stage—before they became complaints—fewer complaints would get as far as the Law Society stage.
Therefore, the Law Society's present role would continue, to an extent. Your proposal is to put in place an option for a review body to ensure that there is an independent oversight of the system.
The key is user confidence, which our evidence suggests is very low. Part of the reason why user confidence is low is that people think that a conflict of interests exists. We think that an independent body should oversee the middle part of the process—how the Law Society operates—as that would increase consumer confidence without drawing anything away from the Law Society's role.
Are you in favour of the Law Society's suggestion to delegate powers to a committee that includes lay people?
I think that the Law Society has made a very sensible suggestion. It feels constrained by its interpretation of the law, which is that complaints must be decided by the council. That raises issues about the unequal treatment of the complainant and the solicitor who is complained about.
I am interested in, and think that there is much to be said for, firms having a structure for dealing with complaints. I suspect that many firms do not have such a structure—there is no standard structure. The problem might start with the question: "What is a complaint?" We heard evidence that suggested that a complaint arises when someone complains, which is true. If I complain, I am making a complaint. However, as I understand the position of solicitors, that is not their point of view. Are not there strictures on what they can accept as a complaint?
Not as far as I am aware. Dealing with dissatisfaction promptly is good practice in any business or profession. If a customer or a client raises concerns, one should try to deal with those at the outset.
I understand that, but I do not think that that is the position at the moment with solicitors. Complaints must be about specific matters, such as time delay and professional misconduct, before solicitors will deal with them. We have heard solicitors comment that they cannot deal with a complaint because they do not know precisely what someone is complaining about. The fact is, however, that those complaints still express dissatisfaction. I want you to address that problem.
That is partly addressed by our support, which I think that you have acknowledged, for the idea of having someone responsible within a law firm for assessing the overall way in which comments or complaints are handled. It would be that individual's responsibility to decipher whether a complaint is a true and meaningful one or one that could be solved within the legal practice or by an individual.
If there is a sole practitioner or if there are only two lawyers in the firm, they might have to do that job themselves.
That is right. In that case they would try to get some advice. It is hoped that the Law Society could advise such an individual.
I found the last part of Mr Millar's reply helpful, but I am still not entirely clear whether the new authority, whether it is a beefed-up ombudsman or a new, fairly small body, is to be a court of appeal where people who are unhappy with the Law Society's decision about their complaint can go one stage further or whether it is merely a general regulatory body that sets out good practice.
We suggest that if a complaint cannot be resolved formally with the Law Society, that complaint can be taken to the independent body. To that extent, that body would be a final form of appeal.
We also suggest that that body not only considers the procedure for complaint handling and how that operates, but has the power to consider the substance of the complaint. The body would be an enhanced ombudsman or independent organisation which complainants could go to when they had a finding against them lower down in the complaints process. The body would consider not only the complaints-handling process, which the ombudsman can do, but the substance of the complaint and would be able to hear that complaint if it thought fit to do so.
The present ombudsman deals with advocates as well as solicitors. Do you envisage that a beefed-up ombudsman or new regulatory body will do likewise?
We try to base our advice and evidence on our research. We have done no research about advocates. We can give evidence to you about solicitors only, so we are silent on advocates. That might or might not be a good situation.
You condescend to talk about judges. Did you have evidence about judges?
We based our comments on our consumer principles about complaints. We understand the issues about complaints against judges, but anybody who has been in contact with what they consider poor performance should be allowed to use a complaint mechanism about that. That is a matter of principle. Nothing exists at present and, as a matter of principle, something should be in place. A complaints system against advocates is available. Whether or not an advocate is involved, we have not investigated whether the system should be changed or incorporated into another system. I take your point.
Your evidence says that the Office of Fair Trading would be a more appropriate body to regulate qualified conveyancers and executry practitioners, as opposed to transferring them to the Law Society. Is that necessary, given the small number of licensed conveyancers and the extremely small number—it is a single figure—of complaints involved?
I cannot say that we would die in a ditch about that. As a matter of principle, we supported the establishment of the Scottish Conveyancing and Executry Services Board. We have no objection to its disbandment, because of what has happened. Although that body has not succeeded in creating a large number of people to compete in the market with solicitors, it was nevertheless established to encourage competition against solicitors, so we find it difficult to accept that it should become part of the solicitors regulatory body. The Office of Fair Trading should have more presence in Scotland anyway.
Your submission says that there is a need for
I will have to be helped to answer that question.
Me too.
We refer you to the lawyer.
I confess that I have never heard of such an offence, so I am not sure whether I can help.
It does exist.
The deputy convener and I missed that. We were not blethering; my deputy convener was communing with me about an issue. I beg your pardon.
If we were playing ping-pong, I would bat the question back to Lord James.
I asked a question that was possibly on a slightly light-hearted note. As the council's evidence asks for
I would like to return to discussing what the enhanced ombudsman might do. The witnesses talked about the need for firms to be more alert to how they might deal with complaints. Beyond that, as the convener mentioned, the Law Society feels that perhaps many complaints fall outwith its remit and that it cannot deal with them. That annoys complainants. Would it be a good idea for the body that you propose to be the gate for complaints and able to assess what is appropriate for the Law Society to deal with? That would remove much of the annoyance that people who think that lawyers are ducking the issue feel.
We have considered that. We would not constrain consumers from approaching a particular body with a complaint. We would not say, "You must go there". We take a commonsense attitude. If a person approaches their local solicitor or the Law Society and is happy with the response, that is fair enough. A body should encourage complaints and promote how best to complain. That body should push complaints to the most appropriate place in the system and have the authority to follow a complaint through and not lose sight of it.
We are not encouraging people to complain. However, when people have a concern, we want to help them to articulate it in such a way that the solicitor concerned will be able to address the complaint in the practice. For many members of the public or consumers, the law is difficult to understand. The same could be said—if I wear a different hat—of the national health service. We have to help people to understand exactly what they want to complain about and then help them to articulate it.
We see the Law Society as having a very important role in promoting to firms of solicitors the importance of dealing with complaints promptly and of having a written complaints procedure. Various pieces of research have shown that many dissatisfied people do not complain. Recent research carried out by Which? in England showed that almost half the people who were dissatisfied with their solicitor had not complained—usually because they did not think that it would do any good. Research has also shown that dissatisfied people will tell more people about their experience than satisfied people. It is therefore in a firm's interest to sort out problems before people tell all their friends not to use the firm because they were not happy. If problems are sorted out early, it will cut down the number of complaints made about the firm to the Law Society.
I have had the opportunity of seeing the brief of the New South Wales ombudsman. If I am right, not only can he refer complaints directly to the legal firm or to the equivalent of the Law Society of Scotland, but he has the power to take on the case himself, either from the start or by intervening at some point. I may have missed it, but I do not think that you spoke of such a power. You said that the independent body or a beefed-up ombudsperson would do.
We cannot have expressed ourselves clearly. We would like the beefed-up ombudsman or the new body to have the power to take over cases if it was felt appropriate. However, we want to avoid everything having to go to the ombudsman—for the reasons that we gave—or the ombudsman having to refer everything back. If a case is sufficiently serious, a powerful regulator should be able to take it up from day one.
Committee members, was that matter raised previously? No response. Did the witnesses raise the matter earlier?
If we did not, we would like to make it clear now that there should be such a power.
That is an important point. Does anyone want to ask about the issue, now that I have raised it in the dying moments? No?
We thought that we had raised it.
I may have missed it.
The power should exist, although it would be used only in very unusual circumstances. The power may be used at the behest of the Law Society of Scotland. We foresee the new body working in close partnership with the Law Society. We are not talking about an overarching inspectorate, but about allowing the public to have more confidence in the Law Society and in solicitors. There may be occasional cases that have to be handled only by the independent body—perhaps at the behest of the Law Society.
Or the ombudsperson.
Or the ombudsman. When I said independent body, I meant the beefed-up ombudsman or the separate organisation. There could be complicated scenarios involving lots of solicitors. I cannot think of a particular set of circumstances, but I am sure that a professional could.
Or a client may be dissatisfied in a scenario that involved several firms, three sets of solicitors, God knows how many counsel, several advocates, perhaps the odd Queen's counsel and even a judge. That is quite a package.
Might the independent body simply become an automatic court of appeal for everyone whose case was dismissed? Might they immediately turn to you to try to get the decision overturned?
The evidence that we have about how consumers behave suggests that that would not happen, although professional and trade bodies often worry that it will. However, people try to use common sense and, if they secure a reasonable solution to their problem, a recognition of fault, an apology or are told that their solicitor behaved reasonably, they will not pursue the matter further.
The evidence from other professions, such as the medical profession, shows that few complainers take matters to the nth degree. For that to happen, the problem has to have been extremely severe. The system is geared towards preventing that situation occurring. We do not place blockages in the system but try to resolve the situation as early as possible. The Law Society has a major role to play in that. Whatever the independent body looks like—in other words, in whatever way its independence is articulated—it will have a major role in helping consumers deal confidently with their solicitor because they will be able to articulate separately their view about the complaints-handling process and will be more able to check and balance the processes among the firms within the organisation.
I thank you for your attendance.
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