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Background Info

The Scottish Legal Complaints Commission (SLCC) was created in 2008 amid claims the previous system of complaints-handling and regulation of solicitors handled by the Law Society of Scotland operated with bias against consumers and clients.

Given that nine years have elapsed since the SLCC came into being, and with no discernible benefit to clients and consumers over the old system of self-regulation by the Law Society of Scotland, it is now time to create a fully independent body with substantial powers of investigation and to be able to identify public complaints cases, decisions and identify law firms and legal representatives, as has occurred in England and Wales for some time. The Parliament as a whole, and individual MSPs, are well aware of the problems encountered by constituents when trying to address their complaints against member of the legal profession in Scotland.

I draw to the Committee’s attention that over one thousand complaints each year are registered, from which it could be concluded that almost all MSPs have had constituents contact them at some point of their parliamentary service with regards to difficulties with solicitors, advocates and the regulatory framework which currently exists.

My concerns about the current system also relate to a recent Court of Session ruling by Lord Malcolm (CSIH 71, XA16/15) which overturned a thirty-year practice that allowed the SLCC to categorise a complaint as hybrid on the basis that is encompassed both service and conduct issues. As a result of this ruling over 600 complaints were, in effect, dismissed including cases going into the final stages of investigation which therefore should not have been affected by the ruling.

Scotland is in need of a strong and independent regulator of legal services – which would strengthen consumer protection and raise standards in the legal services sector. The current mix of regulation, primarily handled by the Scottish Legal Complaints Commission, who when appropriate pass cases on to the Faculty of Advocates, the Law Society of Scotland and the Scottish Solicitors Discipline Tribunal has been proven not to be an effective remedy for clients and consumers, and has brought the legal profession into further disrepute.

I base this petition on not only my own experiences with the SLCC, but also with regard to coverage I and members of the Petitions Committee will be aware of in the press where people who approach the SLCC for assistance and help are left feeling let down by the handling of their complaint to the SLCC, even when the complaint is fully supported by documented evidence supplied in support of the complaint and advocates and solicitors frequently escape any regulatory punishment.

I am aware of the existence of a review panel recently appointed by the Scottish Government in discussions with the Law Society of Scotland. This panel has a remit to review regulation of legal services in Scotland and report back at the end of 2018. However as members will be aware from press reports, the complement of this panel is weighted in favour of legal interests.

This review will be the third attempt since this parliament was formed in 1999 to improve regulation of the legal profession, the first attempt being in 2002 with the regulation of the legal profession inquiry, and the second in 2006 with the Justice Committee’s consideration of the Legal Profession & Legal Aid (Scotland) Act 2007.

The various acts of legislation and amendments to legislation over the years also follow the work of the Scottish Consumer Council & Consumer Focus Scotland, who conducted extensive research and surveys from the mid 1980s to mid 2000’s, each time concluding regulation of legal services in Scotland should move to a fully independent model.

Clearly, nine years on from the creation of the Scottish Legal Complaints Commission, the aims of the LPLA Act have not been achieved. Levels of complaints against the legal profession are over 1000 a year, and the SLCC has suffered serious challenges to it’s role and remit though the courts from legal action taken by solicitors.

As members will be aware, several alterations to legislation have taken place at the behest of the Law Society of Scotland since 2002, with intentions to ‘improve’ regulation of the legal profession such as the Council of the Law Society Bill 2002, the Legal Profession & Legal Aid (Scotland) Act 2007 and the Legal Services (Scotland) Act 2010.

Members will also be aware in 2014, and with the agreement of the SLCC & Law Society of Scotland, the Scottish Government submitted plans to the Parliament’s Justice Committee, which introduced claimed ‘improvements’ to rules at the SLCC by extending time bar on complaints.

Clearly, none of these claimed improvements to legislation or the remit of the current regulation model in Scotland has worked, and the legal profession overall remains self regulating.

In comparison, for England & Wales, the implementation of the reforms proposed by Sir David Clementi in 2004, which culminated in the current framework of independent regulation of UK legal services has been more successful in building and improving an effective legal services market, and that the actions taken in response to Clementi are a sign of a strong regulatory framework, as opposed to a weak, and often perceived as biased regulatory framework of legal services in Scotland.

It is now time for the creation of a fully independent regulator of legal services in Scotland with no ties to the profession, with equal powers, authority and independence as exists in England & Wales.

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