SLCC cannot complain to itself, judge rules
The Scottish Legal Complaints Commission cannot generate a complaint to itself, even where no other party is willing to raise one, a Court of Session judge ruled today.
Lord Brailsford granted a petition for judicial review by Glasgow solicitor Francis Cannon and reduced a letter by the Commission dated 24 April 2019, intimating to the petitioner that it had decided to make a complaint in its own name in relation to the petitioner’s involvement with a series of transactions in 2008-09. It stated that the matters referred to had been brought to the Commission's attention by Police Scotland in December 2018 and that it had decided to waive the requirement for prior communication with the petitioner, and that it also considered the complaint not to be time barred.
For the petitioner it was argued that the Commission's powers under s 2 of the Legal Profession and Legal Aid (Scotland) Act 2007 did not extend to making a complaint to itself; and further that it was a breach of the principles of natural justice, and of article 6 of the European Convention on Human Rights, for it to do so.
The Commission argued that instances of possible professional misconduct had come to its attention which had not been the subject of complaint from any member of the public or other person. Since 2014 it had acted on the basis that "any person" in s 2, being entitled to bring a conduct complaint, was unlimited and could include itself. The principle of natural justice did not apply in cases of necessity, where the decision maker was the only person competent to take the decision, as was the case with the exercise of the Commission's gatekeeping functions. If it decided to remit the complaint to the Law Society of Scotland, the petitioner could raise any breach of natural justice in an appeal. There had not been a "determination" of his civil rights for the purposes of article 6.
Lord Brailsford ruled that "any person" had to be read in the context of s 2 as a whole. The reference to the Commission receiving a complaint "carries as a necessary implication that the complaint came from outwith the SLCC... A self-generated complaint would necessarily require the SLCC to take a determination on whether or not a complaint should be made. There is no provision in the 2007 Act for the SLCC to make such a determination".
He added: "Beyond the foregoing considerations of linguistic interpretation I am further of the view that had Parliament intended the Commission to have power to complain to itself it would have stated so in express terms."
That was sufficient to decide the case, but the decision was also contrary to the rules of natural justice at common law, and amounted to a determination by the Commission in its own cause such as to constitute a breach of article 6.
Following the decision, the Commission's chief executive commented: "We were passed detailed information by the police, but after further discussions they were unwilling to make a formal complaint.
"There was a serious allegation with evidence available, and potential public protection issues. After discussions with the Law Society of Scotland, we believed raising a complaint in our own name was the only remaining option to ensure the matter could be investigated. Our only role would have been to perform initial 'eligibility' assessment. As it was an allegation of misconduct we would have then passed the complaint to the Law Society of Scotland for investigation, if we had accepted it as eligible."
He added: "We are concerned that this decision leaves a situation whereby it is unclear how serious allegations of misconduct against lawyers can be considered in terms of public protection if no individual or organisation is prepared to make a complaint in such cases.
"This case has highlighted again that the system for legal regulation and complaints is complex and unwieldy and we will continue to make the case for reform."