Scottish lawyers fear their independence will be eroded by ministerial interference in a new complaints commission. Linda Tsang looks at how the profession is fighting back.


Legislators always know when any proposed law is in trouble – and that is when the lawyers call in other lawyers to advise on its legality. The Law Society of Scotland recently consulted Lord Lester of Herne Hill QC at London’s Blackstone Chambers on the Scottish executive’s new Bill to reform the way complaints against Scottish solicitors are handled.



The Legal Profession and Legal Aid Scotland Bill will set up an ‘independent’ commission to deal with complaints. However, its members may be appointed and removed by a Scottish minister, for the first time giving the executive power to pass judgement on the performance of the legal profession (see (2006) Gazette, 14 September, 4).



Lord Lester was asked to examine whether the Bill was fully compatible with the European Convention on Human Rights. He concluded that it was not, that it infringed article 6 of the convention because the commission would not be ‘an independent and impartial tribunal’, and there was no external appeal process.



The advice came as the Bill went through the latest stage of the legislative process in the Scottish Parliament on 7 September and was approved in principle by MSPs.



The proposed Scottish legal complaints commission will have more power than the current legal ombudsman – it will handle complaints against advocates and solicitors, with the power to order them to pay up to £20,000 in compensation.



Its staff of about 50 will be able to investigate any complaint from the public about poor service by a solicitor or advocate.



The Bill will also make it possible for a wider range of professional and other bodies to provide legal representation. It will allow the Scottish Legal Aid Board (SLAB) to fund specialist advisers who are not lawyers – these are likely to be from the voluntary sector.



Both the Law Society of Scotland and Faculty of Advocates have long raised their concerns that the proposals regarding regulation of the profession could undermine the independence of lawyers. They are particularly nervous about how the members of the new body would be appointed and removed, and the creeping involvement of the executive in both conduct and complaints.



The day before the parliamentary debate, the president of the Scottish Law Society, Ruthven Gemmell, stressed: ‘The independence of the legal profession is one of the foundation stones of democracy. That independence guarantees that a person can be represented in an action against the state, defend him or herself against accusation of crime, and enforce his or her rights. In order to do that the legal profession and its regulators must be independent of government control.’



During the debate, Deputy Justice Minister Hugh Henry said 300 amendments would be brought forward, including those specifically to underline the body’s independence from ministers. These would include giving the Lord President of the Court of Session (the highest court in Scotland) a role in removing members of the commission. Also, only commission board members will be able to make formal determinations of complaints.



But he also argued that ‘with a non-lawyer majority on its board, consumer interests will be well represented at the heart of the organisation. The appointments will be made by Scottish ministers and the appointments process will be subject to oversight by the Scottish Commissioner for Public Appointments. This will ensure appointment on merit’.



The Law Society north of the border has consistently argued that there is no driving necessity to introduce changes in Scotland, unlike in England and Wales. There is talk among lawyers that the proposals are really being driven more by Westminster than by the Scottish executive. However, the sweeping changes to be introduced in England and Wales following Sir David Clementi’s recommendations and the government’s Legal Services Bill – such as the introduction of alternative business structures with lawyers and non-lawyers working together as partners – are not on the cards in Scotland.



In fact, there was no ‘McClementi’ review in Scotland, although a research working party was set up and reported earlier this year. On complaints, in May this year, the Scottish Legal Services Ombudsman (SLSO) praised the Law Society of Scotland on its complaints-handling record. In its annual report, SLSO figures revealed the ‘satisfaction rating’ had risen 10% to six out of ten for 2005 to 2006. Ombudsman Linda Costelloe Baker attributed the improvement to an increase in resources and expertise in the system.



Douglas Mill, chief executive of the society, says that the main driver of the proposed changes seems to be public perception – the executive and the public consider that lawyers alone should not be regulating other lawyers.



He says: ‘The society’s position is that we have no difficulty with an independent commission for service complaints – but in the interests of the public, and of public confidence, that commission should also be independent of government control. Under the Scotland Act of 1998, it is illegal for the Scottish Parliament to pass legislation which is non-compliant with the European Convention on Human Rights.’



Mr Mill adds: ‘And the legislation which covers solicitors in Scotland – the Solicitors (Scotland) Act 1949 and a later consolidating statute in 1980 – already lays down that solicitors must act in the interests both of the profession and of the public. So that community of interest has already been long-established. With the current Bill, the priority is to ensure that the new body is legal and accountable and effective.’



The society’s director of legal reform, Michael Clancy, is also dealing with the next stage of the parliamentary process for the Bill. He says of the 300 amendments put forward by the Scottish executive: ‘One could interpret the large number of amendments as showing that the system works. The amendment putting the Lord President in to the process of removal of members puts some distance between the new commission and the executive, but there still concerns about Scottish ministers giving “general directions” to the commission – and what that would mean in practice.’ He adds: ‘It is important that the executive and the Justice 2 Parliamentary Committee show that they are listening to the evidence given by all the interested parties – that would be how to ensure the independence of the legal profession and the rule of law.’



The other issue exercising lawyers in Scotland is the perennial one of legal aid. However, it could be said that solicitors there have had rather more success in pushing for higher rates than the English and Welsh. An offer to increase the level of legal aid in May – which was deemed too low – led to local bar associations and local law societies threatening to strike. The Justice Ministry agreed to an increased offer of 8% for court work and 12% for other work, backdated to work commenced after 1 December 2005, which was agreed to.



‘Negotiations on legal aid reform are now back on track, having begun on 22 September,’ says lead negotiator Oliver Adair, convenor of the Law Society of Scotland’s Legal Aid (Solicitors) Committee. He adds: ‘The changes will involve moving from a time-and-line system, which covers each separate piece of work, such as a telephone call, to a system currently being modelled by the Scottish Legal Aid Board looking at breaking a case into component parts, such as preparation, and each stage attracting a block fee, with an upgrade for complexity. We have not seen the final structure yet, but it has to be sufficiently flexible to deal with all the cases that need to be covered – and the fees must be sufficiently high.’



There is a certain amount of urgency in relation to both issues, as elections for the Scottish Parliament are set for 3 May 2007. Whatever the outcome in relation to the Bill, one can be sure that Scottish solicitors will make their voices heard.



Linda Tsang is a freelance journalist