A bill to query

Delegates to the Law Society of Scotland’s AGM filed past an array of stuffed creatures in glass cases as they passed through the natural history gallery on their way to the meeting in the Royal Museum of Scotland’s lecture theatre.

But, while many doubts about the ongoing reform of the legal profession were expressed during the discussion of agenda items, there was no sense that solicitors were prepared to join the list of endangered species. In fact, the reverse was true.

Practitioners from all branches of the profession – large and small firms, city and rural, civil and criminal, partners and in-house lawyers – all joined the debate about the proposed changes to the system of regulation and complaints handling. And produced some constructive and positive proposals in the process.

The interest among well over 100 delegates was hardly surprising, given that the Legal Profession and Legal Aid (Scotland) Bill had been published by the Scottish Executive just two weeks earlier.

The main proposal in the bill is the establishment of an independent Scottish Legal Complaints Commission to handle service complaints, the principle of which was given conditional backing by the Society last November, in advance of the announcement of the Executive’s proposals. The Society’s reason for doing so was to increase confidence in the system. In other words, it was prepared to endorse reform which would lead to genuine improvement.

Unfortunately, the devil is in the detail – and the result is likely to be an inferior complaints handling system to that provided by the Client Relations Office at present.

The Society’s Chief Executive, Douglas Mill, explains the issues at the heart of the bill and considers the future for the legal profession in Scotland.

In general terms, what is your reaction to the Legal Profession and Legal Aid (Scotland) Bill?

Disappointed and concerned for the profession and the public. The Society gave conditional support for a new independent body to handle service complaints before the Scottish Executive had even announced its intentions to establish such a system. The principle behind the proposed Scottish Legal Complaints Commission – to create a more demonstrably independent system – is therefore one we support. However, the bill has gone significantly further than that into areas where the Society made clear it did not believe action was necessary. In other respects, the bill proposes changes that are not backed by a consultation mandate, or are simply unclear and ill thought-out.

More specifically, what areas give you cause for concern?

The cost of the new system is a major concern. My view, based on experience of this type of quango, is that it will cost at least double the Client Relations Office budget of £2.1 million. On top of that, firms will have to pay a case levy every time a complaint is made – even if it is groundless – and, potentially, compensation of up to £20,000 if a complaint is substantiated. The problem is that, while the “polluter pays” principle may be superficially attractive, it does not bear close scrutiny in this instance. What does not appear to have been taken into account is the fact that complaints don’t arise simply because of bad lawyers and culpability: they have more to do with the type of work a solicitor carries out and the client base he or she has.

It is unfortunately true that the best lawyer in Scotland would still get complaints if he or she concentrated on certain areas of work. The result is that fewer and fewer solicitors will carry out those types of work for fear of receiving complaints. Why would they put their heads in such a regulatory noose? If that happens the losers will be the people of Scotland, who might be unable to obtain professional legal services in certain parts of the country.

The independence of the profession is also under threat. First, we do not think the Commission is ECHR compliant because the bill vests too much power with ministers in terms of appointments to the board. Also, there is no meaningful right of appeal for either solicitors or complainers when a decision is made. Again, this raises human rights issues. It also appears that the Commission would take on the functions of the courts in negligence matters where the claim is less than £20,000. Making judicial decisions outwith the courts could once more raise questions of compliance with ECHR.

Will the bill have a disproportionate impact on any particular types of firms or areas of work?

The costs of the proposed system will fall disproportionately on firms carrying out “people law”, such as matrimonial disputes and domestic conveyancing. That is the bread and butter of high street firms across Scotland, but it is also more likely to attract complaints. The small firms and those in rural areas will bear the burden of this rather than the larger firms, although the latter have also voiced concerns about the impact of the bill.

How do you believe the reform process has been handled?

I am concerned that there is a lack of recognition of the implications of the bill, and a lack of holistic understanding of the provision of legal services in Scotland. There seems to be a determination to push this bill through, even though the consequences have not been fully thought out. Given, for instance, the £20,000 compensation limit – which is a straight import from the white paper for England and Wales – it is a Scottish solution to an English problem, despite promises of Scottish solutions for Scottish issues.

What are your views on the profession’s involvement in the reform process to date?

When the consultation came out, the Society did seek the views of the profession and that informed our response. Despite our understanding that there would be a form of “weighting” in the analysis of responses to the consultation, the Society’s submission was eventually only counted as one of 490 responses. From our feedback, we know this disappointed the profession. However, our direct engagement with the profession shows that they are taking this very seriously. The quality of debate surrounding these issues is clear from the roadshows we are currently staging at faculties around the country as well as the recent AGM.

What is your message to any solicitors concerned about the proposals contained within the bill?

There are many things they could do: engage with their local faculty; speak to their MSPs; encourage others to highlight the potential damage to local economies and access to justice. In other words, raise awareness and encourage others to do likewise. I like to think I will be able to look myself in the mirror in three or four years’ time and be able to say I did my best. But this is too important to leave simply to the Society: individual solicitors must also be able to take responsibility too.

In your view, what does the future hold for the solicitors’ profession, and its regulation, in Scotland?

We have to have faith in the political process in Scotland and believe that MSPs and the Justice Department will see force in our arguments and make the necessary changes to the bill. We recognised that reform was needed to enhance public confidence in the complaints handling system. The legislators must bear in mind that the new system must have the confidence of the profession as well as the public if it is to work. If we are to improve on the current system, that must be taken into account.