SLCC calls for reform of "complex and legalistic" complaints system
The Scottish Legal Complaints Commission today called on the Scottish Government to consult on reforms to what it described as the "complex and legalistic" system for handling complaints against legal practitioners in Scotland.
A paper presented to ministers sets out six key priority areas the SLCC believes the Government, which has committed to consultation on a review of legal regulation, should focus on.
Explaining that the present system requires different processes depending on the level of seriousness attached to the complaint – inadequate professional service, unsatisfactory conduct or professional misconduct, with complaints sometimes having to restrat under a different process – the SLCC wants to "reduce the whole process to three core stages":
- a single investigation – ensuring there are a range of flexible options to filter out vexatious and similar complaints and allowing processes proportionate to different levels;
- determination – by the same organisation in relation to lower level issues, or by prosecution at the professional tribunal for conduct which may lead to removal from the profession;
- appeal – to ensure accountability and meet the requirements of natural justice there should be a single opportunity to appeal at the conclusion of the process.
It calls for consultation on whether it is time for a single independent body to handle all aspects of complaints, or at least for a single investigation covering service and conduct, and on how many chances of appeal there should be (and whether this should be to the Sheriff Appeal Court rather than the Court of Session).
There should also be explored, among other issues:
- whether complaints bodies should have more discretion, with appropriate safeguards, and less prescriptive legislation;
- how to ensure that compensation awarded is paid to the consumer;
- how issues of unfair fees should best be addressed;
- whether it is time to move from "one size fits all" regulation to a focus on the areas of greatest consumer risk, engaging experts on how to tackle high risk areas;
- the appropriate balance between professional regulation and market regulation;
- and whether the SLCC should have the power to issue rules on how lawyers should handle complaints at first tier, and the power to impose "strict liability" offences where they do not have, or follow, their own internal process.
A framework Act allowing "proportionate and targeted" regulation would, the SLCC argues, resolve complaints faster, benefiting consumers and lawyers; resolve complaints more cost efficiently, reducing the SLCC's operating costs paid for by the profession; increase the effectiveness of redress, a key public protection; reduce risk to consumers; and increase market confidence.
Speaking of his organisation's experience, SLCC chair Bill Brackenridge commented: "There is much to be proud of, but we are frustrated at a system which is more complex and legalistic than it needs to be. Based on feedback from lawyers and consumers, and drawing on expert evidence, we believe any consultation should aspire to improve the current system.”
While arguing that change was needed, he praised the organisation's current performance: "Last year we helped hundreds of consumers reach an early settlement, and some areas of our work, like mediation, get hugely positive feedback from lawyers and consumers alike. We awarded over £400,000 of redress, but we also dismissed cases which were clearly unmerited, providing independent assurance and confirmation that a lawyer has actually provided an acceptable service."
Chief executive Neil Stevenson added: "This is not about criticising current institutions or approaches – all organisations involved work hard to make the system work as best it can, and Scotland has an internationally well respected legal sector. However, after years of minor reforms we believe it's time to engage the Scottish public and legal community on what results we are trying to achieve with regulation and complaints handling, and the simplest and most efficient way to do that. We hope this paper provokes broad discussion, and that the fantastic opportunity of a review of current arrangements looks at big issues and not just adjusting technical detail with the current model.”