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JUDICIAL REGISTER: Calls to invite Supreme Court President Lady Hale to Holyrood for evidence on judicial interests register – as Judicial Office concede on addition of 500 Justices of the Peace to recusals register & publication of tribunal recusals

MSPs hear calls to invite UKSC President Lady Hale to Holyrood. A FIVE YEAR Scottish Parliament investigation of Petition PE1458: Register of Interests for members of Scotland’s judiciary has received further submissions – calling for MSPs to invite Baroness Hale to give evidence at Holyrood.

Calls for Lady Hale – President of the UK Supreme Court (UKSC) – to be invited to appear before the Scottish Parliament – come on the back of evidence presented to MSPs on the lack of transparency relating to recusals in UK’s top court – which also serves Scotland as the court of last resort.

While courts in Scotland now publish details of judicial recusals – where judges stand down from cases due to a conflict of interest – the UK Supreme Court has refused to take on this extra transparency measure.

Transparency campaigners cite the Supreme Court’s refusal to publish recusals as creating an imbalance in transparency with a court based in London which Scots based litigants & accused persons must still rely on for a right of appeal.

Submissions filed with the Scottish Parliaments Public Petitions Committee also urge MSPs to quiz Lady Hale on the current stance of the UK’s top court on declarations of judicial interests in a publicly available register – a move currently opposed by the Supreme Court according to policy currently posted on the UKSC’s website.

A supplementary submission lodged earlier this week also reveals major concessions from the Judicial Office for Scotland after discussions between the petitioner and the Head of Strategy and Governance at the Judicial Office.

MSPs have been made aware an agreement has been reached where up to five hundred Justices of the Peace are now to be included in the Register of Judicial Recusals – created by ex Lord President Brian Gill in February 2014 – in response to meetings with MSPs on Petition PE1458.

However, the submission asks MSPs to seek answers on why Justices of the Peace – who comprise the bulk of Scotland’s judiciary – were excluded from the recusals register when it was set up in April 2014.

An additional concession from the Judicial Office passed to MSPs also reveals that recusals which take place on the many tribunals under the wing of the Scottish Courts and Tribunals Service (SCTS). will be published at a date yet to be decided.

MSPs have also been asked to consider calling Ian Gordon – the new Judicial Complaints Reviewer (JCR), who took over from Gillian Thompson and hear his views on declarations of judicial interests.

Both previous Judicial Complaints Reviewers – including well known transparency campaigner Moi Ali – fully support the petition calling for the creation of a register of judicial interests in Scotland.

A full report on Moi Ali’s evidence to MSPs and support for proposals calling for the creation of a register of judicial interests is reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Meanwhile it can be revealed written evidence of failures to declare interests at the UK’s top court has been passed to journalists and MSPs for study.

The material, identifies a judge who took part in a case in the Court of Session on multiple occasions who then took a seat on the Supreme Court – and knocked back an appeal from the same case he had ruled on, without declaring any former interest in the case after blocking the route of appeal.

Later today, members of the Scottish Parliaments Public Petitions Committee will consider the request to call Lady Hale and obtain more answers on judicial recusals.

UK SUPREME COURT: MOST POWERFUL, NOW LEAST TRANSPARENT:

The current stance of the UK Supreme Court has previously been used by judges in Scotland to avoid creating a register of judicial interests in response to the cross party supported petition still under investigation at the Scottish Parliament.

UK Supreme Court on declarations of judicial interests statement:

Background: Prior to the creation of the Supreme Court of the United Kingdom, the highest court in the UK was the Appellate Committee of the House of Lords. The members of the Committee were Lords of Appeal in Ordinary appointed under the Appellate Jurisdiction Act 1876. Although those appointments gave them full voting and other rights in the House of Lords, the Law Lords had for some years voluntarily excluded themselves from participating in the legislative work of the House. Notwithstanding that, they were bound by the rules of the House and provided entries for the House of Lords Register of Interests.


On the creation of the Supreme Court the Lords of Appeal in Ordinary became Justices of the Supreme Court. They retain their titles as Peers of the Realm, but are excluded by statute from sitting or voting in the House, for so long as they remain in office as Justices of the Supreme Court. As such, they are treated as Peers on leave of absence; and do not have entries in the House of Lords Register of Interests. Historical information remains accessible via the House of Lords website.

Other judges in the UK, such as the judges of the Court of Appeal and the High Court in England and Wales, and in Northern Ireland, and the Court of Session in Scotland, do not have a Register of Interests. Instead they are under a duty to declare any interest where a case comes before them where this is or might be thought to be the case.

Current position:  Against this background the Justices have decided that it would not be appropriate or indeed feasible for them to have a comprehensive Register of Interests, as it would be impossible for them to identify all the interests, which might conceivably arise, in any future case that came before them. To draw up a Register of Interests, which people believed to be complete, could potentially be misleading. Instead the Justices of the Supreme Court have agreed a formal Code of Conduct by which they will all be bound, and which is now publicly available on the UKSC website.

In addition all the Justices have taken the Judicial Oath – and they all took it again on 1 October 2009 – which obliges them to “do right to all manner of people after the law and usages of this Realm without fear or favour, affection or ill will”; and, as is already the practice with all other members of the judiciary, they will continue to declare any interest which arises in the context of a particular case and, if necessary, recuse themselves from sitting in that case – whether a substantive hearing, or an application for permission to appeal.

The latest submissions filed with the Scottish Parliament’s Public Petitions Committee in relation to Petition PE1458: Register of Interests for members of Scotland’s judiciary are reprinted below:

PE1458/IIII: Petitioner submission of 4 September 2017

I would like to draw to the attention of members the appointment of Baroness Hale as President of the UK Supreme Court, which also serves as the most senior court in the UK for appeals from Scotland.

Noting Baroness Hale’s recent comments in relation to the appointment of judges (Let ministers pick judges, says Supreme Court chief Baroness Hale, The Times, 23 August 2017) and other matters, I request Baroness Hale be invited to give evidence before the Petitions Committee.

As the President of the UK Supreme Court, Baroness Hale will be able to give a substantive account of why UKSC Judges no longer consider they require to adhere to the expectation of completing a register of interests as they did pre-UKSC days as Law Lords in the House of Lords.

Members may also wish to raise questions to Baroness Hale on the disparity of judicial transparency between Scotland and UKSC on judicial recusals, where as members are aware, the Judiciary of Scotland now list details of recusals, compared to the UKSC in London – where this information has not yet been made available to all UK users of the Supreme Court.

The position of the UKSC on the current lack of a register of judicial interests has entered Committee discussions on numerous occasions, and in evidence. Lady Hale’s appointment as President would be a significant opportunity for this Committee to hear from the top UKSC judge on a court which also serves the interests of Scotland.

Lord Carloway evidence to Petitions Committee 29 June 2017: In response to evidence given by Lord Carloway to members I note Lord Carloway claims the creation of a register of interests would deter recruitment of candidates to become judges.

In no other walk of life including politics – does the existence of a register of interests deter recruitment of individuals to a profession or industry. A register of interests is designed to promote accountability and transparency. If someone were to be deterred from a job due to the existence of a register of interests there would quite properly be questions on why transparency would hinder someone from applying for a position of such authority, power – and – responsibility to serve the community.

Lord Carloway stated the critical distinction for judges in this case is that the judiciary require to be independent of any form of government – a point no one or this petition is questioning.

However, and to quote Scotland’s first JCR Moi Ali in a letter to the Petitions Committee of 23 April 2014 “The position of the judiciary is incredibly powerful. They have the power to take away people’s assets, to separate families, to lock people away for years. Some of these people will not have committed a crime.”

To add to Ms Ali’s comments, members will be aware a decision by the judiciary can effectively revoke an item of legislation created by the Scottish Parliament, or the House of Commons if a legal challenge in court to a law is successful. Examples of such cases – including HMA V Cadder – have occurred over recent years, requiring emergency legislation to address issues of successful judicial challenges.

One branch of the Executive which can overturn legislation from another branch, or our elected Parliaments, clearly requires the same implementation of transparency as the other.

In light of the judiciary’s position as the most powerful branch of the Executive – and their considerable effect on public life, policy and legislation, an equivalent, or even greater level of transparency is required to be applied to the judiciary by way of creating a register of judicial interests.

In his evidence, Lord Carloway goes on to claim a register of judicial interests should only be created if the judiciary detect corruption within it’s own ranks.

This is not a credible position in terms of public expectation of transparency in 2017.

Registers of interest exist to ensure transparency and accountability in public life and there is now clearly a requirement for members of the judiciary to declare their interests as practiced by all others in public life.

In conclusion of Lord Carloway’s evidence, I note the Lord President was unable to provide a single legitimate example of harm caused to the judiciary by the creation of a register of interests, nor one single reason why the judiciary should be exempt from the same levels of public transparency which rightly apply to everyone else.

There is cross party backing for the creation of a register of judicial interests, as has already been demonstrated at Holyrood during the motion debate of October 2014, and widespread support in the media and public, and from both Judicial Complaints Reviewers for judges to be required to declare their interests.

Creating a register of interests for members of Scotland’s judiciary is the right thing to do.

Members will also be aware of the appointment of a new Judicial Complaints Reviewer – Mr Ian Gordon, formerly the Convener of the Standards Commission for Scotland.

Mr Gordon’s appointment, along with concerns from the outgoing JCR Gillian Thompson, and calls for a review of the role and powers of the JCR – were reported in the Sunday Herald (Calls for more funding as new judicial watchdog appointed, Sunday Herald, 15 August 2017).

As Mr Gordon is well versed in standards, and public expectation of transparency, I ask the Committee call Mr Gordon to give evidence on his experience in relation to standards in public life, and any thoughts he may have as the new Judicial Complaints Reviewer – with regards to the creation of a register of judicial interests.

Members may also wish to note the retiring JCR – Gillian Thompson who gave evidence to the Committee in July 2015 has published information in her 2014/15 annual report in relation to her continued support for this petition, which available on the JCR’s website here: Judicial Complaints Reviewer Annual Report 2014-2015

All annual reports from the Judicial Complaints Reviewer including those from Moi Ali, are available here: Judicial Complaints Reviewer – Annual Reports

In light of the progress on this petition, public interest, and public debate, I would like to encourage this Committee to begin discussions with other Committees to determine which is the best way to advance this petition forward.

There is now five years of work, from MSPs, Public Petitions Committee members past & present, PPC clerks, two Judicial Complaints Reviewers, Parliamentarians from other iurisdictions, legal academics, submissions from members of the public, wide support in the media and across the spectrum of politics & public for the implementation of a register of judicial interests.

This team effort should rightly culminate in what will be a significant gain for the justice system, judiciary and courts – in terms of transparency and accountability, and a gain for this Parliament in creating the legislation to bring about such judicial transparency, and increase public confidence in our courts.

Finally, as Lord Carloway raised the subject of problems in judicial recruitment if a register is created, I urge the Committee write to the Sheriff’s Association, the Scottish Justices Association, the Law Society of Scotland and the Faculty of Advocates on this particular subject, seeking their views in writing, so these issues can become a matter of public record in this debate.

PE1458/JJJ: Submission from the Petitioner, 29 November 2017

A further development of interest to members with regards to the Register of Judicial Recusals – created by former Lord President Lord Brian Gill as a result of this petition in April 2014.

During the creation of the Register of Judicial Recusals in 2014, some 400 plus members of the judiciary – Justices of the Peace – were excluded from the register for no apparent reason.

Recent communications with the Judicial Office and further media interest in the petition[has prompted the Judicial Office to finally include Justices of the Peace in the Register of Judicial Recusals – with a start date of January 2018.

This follows an earlier development after Lord Carloway gave his evidence to the Committee, where the Judicial Office agreed to publish a wider range of details regarding judicial recusals, A copy of the revised recusal form for members of the Judiciary has been provided by the Judicial Office and is submitted for members interest.

Additional enquiries with the Judicial Office and further media interest on the issue of Tribunals which come under the Scottish Courts & Tribunals Service (SCTS) and Judicial Office jurisdiction has produced a further result in the Judicial Office agreeing to publish a register of Tribunal recusals.

I urge members to seek clarification from the Judicial Office and Lord President on why Justices of the Peace, who now comprise around 500 members of the judiciary in Scotland, were excluded from the recusals register until now – as their omission from the recusals register has left a distorted picture of judicial recusals in Scotland.

Since my earlier submission of 4 September, the Scottish Courts & Tribunals Service has published their Annual Report, which contains a Register of Interests for SCTS Board members, including several members of the judiciary, available here: Scottish Courts & Tribunals Service Annual Report 2016-2017

While the register exists for a handful of judges who sit on the SCTS Board – including Lord Carloway, and does include further detail on some financial holdings of the judiciary, as provided by the Judicial Office SCTS Board shareholdings register – there is clearly a format by which this same register, with enhanced requirements of disclosure as appear in other jurisdictions, could be applied to all members of Scotland’s judiciary.

Finally, I wish to draw attention to members of the status of the Norwegian Register of Judicial Interests, which is a very comprehensive register, and could well be used as a template for a similar register of judicial interests in Scotland.

The Norwegian register of judicial interests is available here: Norway – Register of Judicial Interests. I urge members to contact Norway’s judiciary to seek comments on their register of judicial interests, and if necessary invite evidence on Norway’s implementation of such a register and how it impacts on judicial transparency.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary.

 

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CRY WOLFFE: Judicial Office hit with new conflict of interest claims as Court of Session papers reveal £9 million damages claim against Chief Constable & Lord Advocate James Wolffe QC was set to be heard by the Lord Advocate’s wife – Judge Lady Wolffe

Court details reveal judge scheduled to hear case against her own husband. SCOTLAND’S judiciary are facing fresh allegations of conflict of interest after it emerged a multi million pound damages claim against the Lord Advocate and Scotland’s Chief Constable for wrongful arrest and financial damages – was set to be heard by a judge who is the wife of the Lord Advocate.

The NINE million pound damages claim against Scotland’s top cop and top prosecutor has been lodged by David Whitehouse – a former administrator at Rangers FC – who is seeking financial damages from Police Scotland’s Philip Gormley and Lord Advocate James Wolffe QC.

A copy of the Court Rolls handed to the media at the time reveal Lady Sarah Wolffe QC – an outer house senator of the Court of Session – was scheduled to hear the case involving the claim involving the Lord Advocate – her own husband – A295/16 David Whitehouse (represented by Urquharts) v Liam Murphy &c (represented by Ledingham Chambers for SGLD – Scottish Government Legal Directorate) – on November 15 2017.

Liam Murphy is currently listed as a Crown Office Procurator Fiscal on “Specialist Casework”.

However, Lady Wolffe appears to have been removed from the hearing, with no official comment from the Judicial Office or Scottish Courts and Tribunals Service (SCTS).

Claims have since been made Lady Wolffe was suddenly dropped from the hearing when it ‘emerged at the last minute’ her husband – Lord Advocate James Wolffe – was involved in the case.

A report from a source claims a second Court of Session Judge – Lady Wise QC – was then scheduled to hear the case.

However, the silent replacement of Lady Wolffe with Lady Wise – has now raised serious questions as to why there are no references to any note of recusal made by Lady Wolffe – who clearly had a conflict of interest in the case given one of the core participants in the action is her own husband – the Lord Advocate.

The case then takes another turn after media reports of the hearing on Wednesday 15 November reveal a third judge – Lord Arthurson QC – eventually heard the case, and has since arranged for a four day hearing for legal arguments.

The background to the civil damages claim stems from when David Whitehouse and Paul Clark were appointed to the former Rangers Football Club PLC in 2012 after owner Craig Whyte declared the business insolvent.

The Duff and Phelps administrators faced a failed prosecution bid by the Crown Office in relation to the collapse of the Ibrox oldco, while Mr Whyte was found not guilty of fraudulently acquiring the club during a trial in June.

The charges against David Whitehouse and his colleague Paul Clark were later dropped.

Both PoliceScotland Chief Constable Phil Gormley and Lord Advocate James Wolffe claim police and prosecutors acted in accordance with correct legal procedure.

Yet questions remain on how the Crown Office acted in this case, and many others where prosecutions which ultimately collapse, appear to be based on flimsy or even non-existent or unprovable evidence.

Police arrested and charged Mr Whitehouse and Mr Clark during the investigation into businessman Craig Whyte’s takeover of the club in 2011. Charges were dropped following a court hearing before judge Lord Bannatyne in June 2016.

Lawyers acting for Mr Whitehouse claimed their client was “unlawfully detained” by detectives in November 2014. They also said that throughout the period of detention, there was no reasonable grounds to suspect that Mr Whitehouse had broken the law.

Mr Whitehouse also claimed that police obtained evidence without following proper legal procedure. An indictment against Mr Whitehouse was issued without any “evidential basis”, his lawyers said.

It is also claimed the actions of police and prosecutors are said to have damaged Mr Whitehouse’ reputation of being a first-class financial professional and led to a £1.75m loss in earnings.

A legal document states: “He lost income, in particular his entitlement to bonus payments and future earnings. His reputation was severely damaged.”

At the hearing on Wednesday 15 November  – originally scheduled to be heard by Lady Wolffe –  lawyers acting for Mr Whitehouse appeared during a short procedural hearing where it also emerged Mr Whitehouse’s colleague Mr Clark is also suing the chief constable and Lord Advocate.

At the hearing, Court of Session outer house Judge Lord Arthurson arranged for a four-day hearing into the legal issues surrounding the case to take place at a later date.

Given the similarities of the two claims, lawyers are now examining whether the two actions should be rolled into a single case.

The case has emerged from the circumstances surrounding Mr Whyte’s takeover of Rangers in 2011. Mr Whitehouse and Mr Clark worked for Duff & Phelps and were appointed as administrators of the club in February 2012. Four months later, the company’s business and assets were sold to a consortium led by Charles Green for £5.5m.

Mr Whitehouse believes that his human rights were breached as a consequence of the actions of the police and prosecutors.

The chief constable and the Lord Advocate claim that police and prosecutors acted in accordance with correct legal procedure.

Lawyers acting for the top cop & Lord Advocate claim that Mr Whitehouse’s human rights were not breached and that he did not suffer any loss or injury as a consequence of the actions taken by the police and prosecutors.

Lawyers acting for the Chief Constable & Lord Advocate also claim should be dismissed because the Lord Advocate is exempt from civil action from people who were the subject of a legal investigation.

However, the use of the Lord Advocate’s immunity from civil action – in times where the Crown Office have often been found to have got things wrong in court, or have acted improperly during investigations and the application of criminal charges, should now come under increased external scrutiny and ultimately be withdrawn from legislation.

The Judicial Office, and the Scottish Courts and Tribunals Service have both refused to issue any further comment or statement on this case, despite the Judicial Office informing journalists a statement would be issued, over two weeks ago.

However, questions remain as to why no recusal has been posted by the Judicial Office with regards to Lady Wolffe stepping aside from the case.

Clearly, had a register of judicial interests existed in a form currently being studied by MSPs of the Scottish Parliament’s Public Petitions Committee, incidences such as these could be avoided.

Lady Wolffe Biography:

The Hon Lady Wolffe was appointed a Judge of the Supreme Courts in March 2014.

Lady Wolffe qualified as a solicitor in 1992 and worked at the Bank of Scotland legal department from 1992 to 1993. She called to the bar in 1994 and until 2008 practised as a junior counsel, mainly in commercial and public law. From 1996 until 2008 she was also standing junior counsel to the Department of Trade and Industry and its successor departments. Since 2007 she has been an ad hoc advocate depute. She was appointed QC in 2008. As senior counsel she has practised mainly in commercial and public law. She was a member of the Disciplinary Tribunal of the Faculty of Advocates 2005-2008 and has been a member of the Police Appeals Tribunal since 2013. Mrs Wolffe emigrated to the United Kingdom in 1987.

Crown Office Specialist Casework Function:

The Crown Office Specialist Casework Function – currently led by Deputy Crown Agent: Lindsey Miller – comprises a number of specialist units involved in the delivery of case preparation and the provision of  other legal services in support of COPFS core functions where the nature, size and/or complexity of the case or subject matter means that it is most effectively dealt with within Specialist Casework. This Function is managed nationally by Liam Murphy, Procurator Fiscal Specialist Casework, but delivered from various locations throughout Scotland.

The Specialist Casework units are:

  • Appeals
  • Criminal Allegations against the Police
  • Health and Safety Crime (including the Helicopter Incident Investigation Team)
  • International Co-operation Unit
  • Proceeds of Crime Unit
  • Scottish Fatalities Investigation Unit   (including Road Traffic Fatalities Unit)
  • Serious and Organised Crime  (including Counter-Terrorism and Economic Crime)
  • Wildlife and Environmental Crime Unit

The Civil Recovery Unit also sits within Specialist Casework.

The Specialist Casework and the High Court Functions together are known as Serious Casework.

 

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ALL THE LORD PRESIDENT’S INTERESTS: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary

Scottish Parliament probe judicial interests & register proposal. A FIVE YEAR Scottish Parliament probe into Petition PE1458: Register of Interests for members of Scotland’s judiciary has generated over sixty two submissions of evidence, twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate.

The proposal, first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

The move to create a register of judicial interests enjoys cross party support, is widely supported in the media and  in public debate as a result of media coverage.

The petition has also secured the support of Scotland’s Judicial Complaints Reviewers Moi Ali, and Gillian Thompson.

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) – appeared before the Public Petitions Committee of the Scottish Parliament in a hard hitting evidence session during September of 2013.

At the hearing, Ms Ali supported the proposals calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Scotland’s second Judicial Complaints Reviewer Gillian Thompson OBE also backed the petition and the creation of a register of judicial interests during an evidence session at Holyrood in June 2015.

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 – ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

A report on Lord Brian Gill’s evidence to the Scottish Parliament in November 2015 can be found here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests – Petitions Committee Chief brands Lord Gill’s evidence as “passive aggression”

A report on Lord Carloway’s widely criticised evidence to the Scottish Parliament in July 2017 can be found here: REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency – Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

The timeline of debates at the Scottish Parliament’s Public Petitions Committee on Petition PE1458:

Petition PE1458 Register of Interests for Scottish Judiciary Scottish Parliament 8 January 2013

The Committee decided to call for submissions on the petition from the Lord President, the Law Society of Scotland, Faculty of Advocates and Crown Office.

Petition PE1458 Register of Judges Interests 5 March 2013 Scottish Parliament

Petition PE1458 by Peter Cherbi calling on the Scottish Parliament to legislate to create a Register of Interests for Scotland’s judiciary was heard today 5 March 2013. The Committee decided to call for further evidence and also to invite the Lord President Lord Gill and others along to speak to MSPs and be questioned on the matter.

Petition 1458 Register of Interests for Scotland’s Judiciary Scottish Parliament 16 April 2013

 

A petition calling for a register of interests for Scotland’s judiciary has again been debated at the Scottish Parliament, where upon the Lord President Lord Gill’s refusal to attend the Petitions Committee to give evidence, the Petitions Committee decided to repeat its invitation to Lord Gill to attend, and also agreed to seek the views of the Judicial Appointments Board and the Judicial Complaints Reviewer.

Petition 1458 Register of Interests for Scottish Judiciary 25 June 2013 Scottish Parliament

Members of the PPC decided to invite Moi Ali, the Judicial Complaints Reviewer to give evidence and also to contact Dr Kennedy Graham MP of the New Zealand Parliament. Dr Graham currently has a bill before MPs in New Zealand calling for a Register of Pecuniary Interests of Judges. During the debate it was noted Lord Gill has refused to attend the Scottish Parliament to discuss the petition and judge’s interests, but has attended the Justice Committee to discuss court closures in Scotland.

Evidence from Judicial Complaints Reviewer Moi Ali on Petition PE1458 Register of Interests for Scotland’s Judiciary Scottish Parliament

Moi Ali, Scotland’s Judicial Complaints Reviewer gives evidence to MSPs at the Scottish Parliament regarding Public Petition PE1458 calling for a Register of Interests for Scotland’s Judiciary.

Petition 1458 Register of Judicial Interests Public Petitions Committee 28th January 2014

Following a private meeting between Scotland’s top judge, the Lord President Lord Brian Gill, and the Convener & Deputy Convener of the Public Petitions Committee of the Scottish Parliament,the Committee agreed today, 28 January 2014 to defer consideration of Petition PE1458 by Peter Cherbi calling on the Scottish Parliament to create a register of judicial interests, pending receipt of a letter from the Lord President.

The Convener, David Stewart MSP and Deputy Convener, Chic Brodie MSP reported back to members on what had been said at the private meeting with Scotland’s top judge who refused to attend the Scottish Parliament to be questioned on his deep seated opposition to the proposal to requie Scottish judges to declare all their interests, hidden wealth, family & business links and other matters which may impact on cases being heard before judges in Scottish courts.

Committee Member John Wilson MSP requested details of the private meeting with the judge be put on the official record of the Committee, and Jackson Carlaw MSP drew attention to the fact had it not been for the Petitions Committee asking tough questions there would not even be any letters forthcoming from Lord Gill.

The petition will be heard once a letter has been received from Scotland’s top judge, who appears to be set against any attendance to face questions on why judges should not be required to register their interests, unlike all other public officials, politicians, Government Ministers and others.

Petition 1458 Register of Judicial Interests Scottish Parliament 4 March 2014

The Committee agreed to seek time in the chamber for a debate on the petition. The Committee also agreed to write to the Lord President and the Scottish Government.

Petition PE1458 Register of Interests for Scotland’s Judiciary Scottish Parliament Public Petitions Committee

The Committee agreed to continue the petition, and is seeking a debate in the main chamber of the Scottish Parliament. The Committee also agreed to write to the Lord President and the Scottish Government for more detailed responses.

The next fifteen video clips are from the debate held at the Scottish Parliament on Thursday 09 October 2014, in which MSPs, Scottish Government ministers and members of the Public Petitions Committee spoke in the debate. The full text of the speeches of each MSP can be found here: DEBATING THE JUDGES: Cross party support for proposal seeking a register of interests for members of Scotland’s Judiciary as Scottish Parliament holds first ever debate on judicial accountability & transparency

David Stewart MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

David Stewart: The committee’s motivation in giving consideration to the issue and in seeking time in the chamber to debate it is a point of principle and comes from the starting point of there being an assumption of openness and transparency in all areas of public life in order to shine a light, if you like, into every corner of Scottish society.

Roseanna Cunningham MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Roseanna Cunningham: The setting up of a register of judicial interests would be a matter for the Lord President, as head of the judiciary in Scotland. The Lord President takes the view that a register of pecuniary interests for the judiciary is not needed. Furthermore, a judge has a greater duty of disclosure than a register of financial interests could address.

Graeme Pearson MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Graeme Pearson: Until the petition was discussed, there was no knowledge of recusals in the public domain. I welcome the fact that, as of April this year, the Lord President has introduced a register of recusals. It is fair to say that without the petition and the work of the Public Petitions Committee, such a register would probably not have been considered.

Jackson Carlaw MSP opening speech Register of Judicial Interests Petition PE1458 Scottish Parliament

Jackson Carlaw: It is perhaps difficult to take on the judiciary, because judicial independence is always mentioned. As I said, that is a cornerstone of democracy, but because there has been no separation of accountability and independence, it is easy for the judiciary to say, ‘We are independent, so don’t interfere in that.’ Unless independence and accountability are separated, legislation will continue to include no requirement for more openness and transparency.”

Angus MacDonald MSP Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

Angus MacDonald: If we as elected members have to register and declare our interests, I see no reason why members of Scotland’s judiciary should not be subject to a full and publicly available register of judicial interests.

Anne McTaggart MSP Register of Judicial Interests debate – Petition PE1458 Scottish Parliament 9 Oct 2014

Anne McTaggart: In Scotland, claims continue to emerge of trials that have been unfair as a result of religious, ethnic or national bias. As long as those claims continue to exist, it is the Parliament’s job to promote fair government. In conclusion, I declare my support for the petition and encourage support from all the other MSPs.

David Torrance MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 Oct

David Torrance: Although I understand that conflicts of interest are on occasion declared in open court prior to taking on a case, the introduction of a register of interests would provide a more consistent and sound basis on which to move forward.

Neil Findlay MSP speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

Neil Findlay: We need to do much more to make our society less secretive and less closed, and I think that the register that we are discussing is just one step towards that end. I, for one, give it my full support and urge other MSPs to do the same.

Joan McAlpine MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 Oct 2014

Joan McAlpine: I gently suggest to the Lord President, in whose gift it is to set up a register, as we cannot legislate for it in the Parliament, that he should be mindful of the need for the judiciary to move with the times, along with every other public institution, in order to retain the confidence of the public.

John Wilson MSP speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 Oct 2014

John Wilson: A register of interests for judges is an area in which we could move forward and build more confidence in the system that we have in place.

Stewart Stevenson MSP speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Stewart Stevenson: I encourage Lord Gill and his successors to think about recalibrating their relationship with Parliament.

Jackson Carlaw MSP closing speech Register of Judicial Interests Petition PE1458 Scottish Parliament 9 October 2014

Jackson Carlaw: Mind you, I would point out that we, too, swear an oath, but we nonetheless still subscribe to a register.

Elaine Murray MSP Register of Judicial Interests Petition PE1458 Scottish Parliament 9 October 2014

Elaine Murray: “Given the position of power held by the judiciary, it is essential not only that they have absolute integrity–but crucially, that they are seen to have absolute integrity.” Therefore, the issue is not that anyone doubts the judiciary’s integrity, but that the public need to see that integrity.

Roseanna Cunningham MSP closing speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Roseanna Cunningham: A number of members referred to the register of interests of MSPs. However, the situation is different, because we are directly accountable to the electorate.

Chic Brodie MSP closing speech Register of Judicial Interests debate Petition PE1458 Scottish Parliament 9 October 2014

Chic Brodie: There is concern that a register would have unintended consequences—a phrase that has been used often in the debate—for the judiciary’s freedom and privacy and its freedom from harassment from the media or dissatisfied litigants. Those are concerns, but they are no less so for others in public life, including MPs and MSPs, who may be attacked publicly for non-declaration of interests. Although it is argued that the establishment of a register may have the unintended consequence of eroding public confidence in the judiciary, it might equally be argued that its absence might have the same effect.

The debate at the Scottish Parliament now returns to deliberations of the Public Petitions Committee on Petition PE1458 – A Register of Interests for members of Scotland’s Judiciary:

Register of interests for judiciary Petition PE1458 Scottish Parliament 28 October 2014

Paul Wheelhouse Register of Judicial Interests Petitions Committee Scottish Parliament 9 Dec2014

Minister for Community Safety Paul Wheelhouse gives evidence to the Public Petitions Committee on their investigation of proposals to create a register of judicial interests as called for in Petition PE1458. Mr Wheelhouse on behalf of the Scottish Government opposes the creation of a register which will inform the public about what judges have, their interests, links to big business, banks, shares in corporations and tax avoidance scams.

Petition 1458 Register of interests for Scotland’s Judiciary Scottish Parliament 12th May 2015

The Scottish Parliament’s Public Petitions Committee discussed Petition PE1458 on Tuesday 12 May 2015. The Committee agreed to call Gillian Thompson OBE – Scotland’s current Judicial Complaints Reviewer to give evidence on the creation of a register of judicial interests.

Evidence of Gillian Thompson Judicial Complaints Reviewer Register of Interests for Judges Petition PE1458 Scottish Parliament 23 June 2015

The Scottish Parliament’s Public Petitions Committee discussed Petition PE1458 on Tuesday 23 June 2015. The Committee took evidence from Gillian Thompson OBE – Scotland’s current Judicial Complaints Reviewer who gave evidence in support of the creation of a register of judicial interests.

Lord Brian Gill evidence to Public Petitions Committee Scottish Parliament 10 Nov 2015

Lord Brian Gill, former Lord President and Lord Justice General of Scotland gives evidence to the Scottish Parliament’s Public Petitions Committee on Petition PE1458 calling for a register of interests for judges.Gill refused two earlier invitations to appear before the Public Petitions Committee in 2013 and was dubbed “Lord No No.”. Several times during the debate the 73 year old ‘retired’ Lord Gill called on the panel of MSPs to show faith in the UK judiciary and scrap the petition along with calls for greater transparency of judges interests.

Petition PE1458 Register of Interests for Judges Public Petitions Committee Holyrood 1 Dec 2015

Petitions Committee member Kenny MacAskill MSP calls for the committee to invite the new Lord President upon their appointment to appear to give evidence. Convener Michael McMahon MSP agrees to write to the new Lord President.

Petition PE1458 Register of judicial interests Scottish Parliament 23rd February 2016

The Committee decided Lord Carloway is to be called to give evidence, MSPs will also contact Professor Alan Paterson of the University of Strathclyde for evidence.

Petition PE1458 Public Petitions Committee Scottish Parliament 29 Sept 2016

The Petitions Committee decided to call Lord President Lord Carloway to give evidence, and also hear from Professor Alan Paterson of the University of Strathclyde.

Petition PE1458 Register of Interests for judges Public Petitions Committee 22 Dec 2016

MSP Angus MacDonald (SNP) moves to call Professor Alan Paterson to give evidence to the committee and for msps to consider evidence from the Professor then to contact the Lord President, Lord Carloway.

Professor Alan Paterson Petitions Committee PE1458 19th Jan 2017

Professor Alan Paterson evidence to Public Petitions Committee on creating a register of interests for members of Scotland’s judiciary.

PE 1458 Public Petitions Committee Scottish Parliament 30th March 2017

Members of the Scottish Parliament’s Public Petitions Committee decide to invite Lord President Lord Carloway to provide evidence before the Committee at a future date, and to invite Alex Neil MSP to appear before the Committee at the same meeting. The decision was taken after Lord Carloway offered concessions on the recusal register of Scotland’s judiciary – created as a result of this petition.

Lord Carloway Register of Judges interests Petitions Committee Scottish Parliament 29 June 2017

Lord Carloway gives evidence to the Public Petitions Committee on a proposal to create a register of judicial interests for members of Scotland’s judiciary. The proposal has been investigated by the Scottish Parliament for five years, there is wide support for the register, from cross party msps to the media to both Judicial Complaints Reviewers.

The Petition will next be heard on Thursday 7 December 2017 where the Public Petitions Committee will be asked to consider taking evidence from Baroness Hale, President of the UK Supreme Court, and to seek further evidence on the operation of Norway’s Register of Judicial Interests.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary.

 

 

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END OF CLAIMS: Rogue lawyer who claimed £600K in two years abandons £100K case against Scottish Legal Aid Board – over release of damning report revealing ‘unnecessary, deliberate and excessive’ legal aid claims

Lawyer abandons claim against legal aid board for £100K. AN INVESTIGATION has revealed a rogue lawyer – previously accused of making “unnecessary and excessive” claims for more than £600K Legal Aid in two years – attempted to sue the Scottish Legal Aid Board (SLAB) for £100,000 over release of a report detailing legal aid claims.

The three year court case – registered in the courts by Kilmarnock based solicitor Niels S Lockhart during December 2013 – finally came to an end in 2016 – with legal aid chiefs absolved of any blame for the release of a damning report which raised serious concerns over Lockhart’s multiple claims for legal aid public cash.

The size of the legal aid claims put Lockhart’s one man law firm higher up the scale of legal aid payments than many law firms with multiple partners, and advocates.

Last week, Legal Aid Chiefs finally admitted in a Freedom of Information disclosure to journalists“the case A665/13 Niels Lockhart v The Scottish Legal Aid Board was a court action raised by Mr Lockhart at the Court of Session in which he sought payment of damages of £100,000 from SLAB. The court action has since been concluded.”

The response to the journalist continued: “You will recall that in early 2010 you submitted an FOI request to us, and that on 16 March 2010 we responded to your request by forwarding to you a report in relation to Mr Lockhart. This release of information to you was alleged by Mr Lockhart to be a breach of confidentiality by SLAB. SLAB defended the action.”

SLAB was represented in the action by in-house solicitors, and instructed counsel, John MacGregor, advocate.

The costs incurred by SLAB were: Counsels fees £2,100.00; Court dues £202.00; Printing cost of court documents; £92.07 Total; £2,394.07

The statement in the FOI response issued by SLAB concluded: “The court action was terminated in 2016 by agreement. Decree of absolvitor was granted in favour of SLAB together with an order of expenses in favour of SLAB in the sum of £1,750. No monies were found payable, or paid, to Mr Lockhart by SLAB.”

However, similar enquiries to the Scottish Courts and Tribunals Service (SCTS) – revealed court staff had been ordered to refuse to disclose details relating to Lockhart’s attempt to sue the Scottish Legal Aid Board.

A spokesperson for the SCTS initially said: “I’m told that typically we can’t reveal very much as you were not a party to the action. I’m told that we can say that the case concluded on 28 June 2016 and that it was a Joint minute and the defender was absolved.”

When pressed for further details, the spokesperson added: “I am afraid I cannot say what the case was about or about any amounts of money. I can say that the case was registered on 19/12/13, it was called on 24/1/14,  it did not call in court, it was sisted until early 2016 then concluded on 28 June 2016.”

Kilmarnock based solicitor Niels S Lockhart was subject of a lengthy investigation by the Scottish Legal Aid Board from 2005 to late 2010 over vastly inflated claims for Civil Advice & Assistance Legal Aid.

Legal Aid chiefs then send their report to the Law Society of Scotland, who carried out an investigation into Lockhart and the detailed SLAB report.

However, sources at the Legal Aid Board revealed a string of delays during the Law Society investigation, including a series of ‘complaints reporters’ who were tasked to study the SLAB report and recommend what action if any should be taken against Lockhart.

After several Law Society investigators had either refused to look at Lockhart’s legal aid claims, or finalise a report, a version was sent to the Scottish Legal Aid Board – which legal aid chiefs claimed they could not release because they had no permission from the Law Society of Scotland.

A timeline of events established that on 5 June 2005 the Scottish Legal Aid Board sent a report to the Law Society of Scotland in terms of S32 of the Legal Aid (Scotland) Act 1986 against the sole practitioner firm of Niels S Lockhart, 71 King Street, Kilmarnock. The secret report, obtained under Freedom of Information laws, can be downloaded here: SCOTTISH LEGAL AID BOARD S31 COMPLAINT REPORT TO THE LAW SOCIETY OF SCOTLAND : NIELS S LOCKHART(pdf)

The Legal Aid Board report outlined a number of issues that had been identified during the review of case files & accounts which raised concern about Mr Lockhart’s conduct and which fell to be considered as a breach of either Regulation 31 (3) (a) & (b), relating to his conduct when acting or selected to act for persons to whom legal aid or advice and assistance is made available, and his professional conduct generally. These issues illustrated the repetitious nature of Mr Lockhart’s failure to charge fees “actually, necessarily and reasonable incurred, due regard being bad to economy”

The heads of complaint submitted by the Scottish Legal Aid Board to the Law Society of Scotland were : (1) Excessive attendances, (2) Lack of Progress, (3) Splitting/Repeating Subject Matters, (4) Inappropriate Requests for Increases in Authorised Expenditure, (5) Matters resubmitted under a different guise, (6) Standard Attendance Times, (7) Attendances for Matters Not Related to the Subject Matter of the Case, (8) Unreasonable Charges, (9) Double Charging for Correspondence, (10) Account entries not supported by Client Files, (11) Attempt to Circumvent Statutory Payment Procedure for Property Recovered or Preserved, (12) Continued Failure to act with Due Regard to Economy.

The report by the Scottish Legal Aid Board revealed that, of all firms in Scotland, the sole practitioner firm of NS Lockhart, 71 King Street, Kilmarnock, granted the highest number of advice and assistance applications for “interdict” (392) for the period January-October 2004.The next ranked firm granted 146, while the next ranked Kilmarnock firm granted only 30.

The report stated : “While conducting a selective analysis of Niels S Lockhart’s Advice and Assistance accounts, it was clear from the outset that much of his business comes from “repeat clients” and/or members of the same household/family, whom he has frequently admitted to Advice and Assistance. The analysis revealed persistent patterns of excessive client attendances, the vast majority of which are irrelevant, unnecessary and conducted without due regard to economy.”

“It was also clear that Niels S Lockhart makes grants for a number of interlinked matters, where there is clearly a “cross-over” of advice. Consecutive grants are also often made as a continuation of the same matter shortly after authorised expenditure has expired on the previous grant.”

“This appears to the Board to be a deliberate scheme by Niels S. Lockhart to make consecutive grants of Advice and Assistance on behalf of the same client for the same matter, for personal gain. By so doing, he has succeeded in obtaining additional funds by utilising new initial levels of authorised expenditure for matters where, had further requests for increases in authorised expenditure under the initial grant been made to the Board, they would with every likelihood have been refused by Board staff.”

“Closer scrutiny of Niels S Lockhart’s accounts and some client files has given rise to a number of other serious concerns, e.g. numerous meetings, standard of file notes, encouraging clients to advance matters while demonstrating a lack of progress.”

“After a meeting between SLAB officials & Mr Lockhart on 14 April 2005, Mr Lockhart was advised that SLAB’s Executive Team had approved of his firm’s accounts being removed from the guarantee of 30-day turnaround for payment of accounts, and that henceforth, to allow the Board the opportunity to satisfy itself that all fees and outlays had been properly incurred and charged by the firm, he would be required to submit additional supporting documentation and information with his accounts (including client files).”

The report continued : “Over the next few months, Mr Lockhart telephoned Accounts staff many times, often on a daily basis, repeatedly asking questions about the type of charge they considered acceptable or unacceptable in a variety of situations. Staff reported that, despite their having given Mr Lockhart the same answers time and again (both via correspondence and over the telephone),he continued to submit accounts with unacceptable charges. In a final effort to counter these continuing problems and to emphasis the Board’s stance in relation to the various issues of concern, our Accounts Department sent him a letter on 23 December 2005.”

“Mr Lockhart did not provide a written response to this correspondence. He did however contact Mr McCann of the Legal Defence Union, who wrote to the Board seeking a meeting with Board officials to try to resolve the payments issue. Our view however was that this would not advance matters as Mr Lockhart had been given a clear steer both after the April 2005 meeting and in the December when Accounts wrote to him on a number of matters.”

However, a key error was made by the Legal Aid Board, who stunningly failed to interview any of Mr Lockhart’s clients despite SLAB’s claims of excessive legal aid claims.

The SLAB report revealed : “Board staff have not interviewed any of Mr Lockhart’s clients as we have no reason to believe that, for example, the multitude of meetings that he held with them—sometimes more than twice daily—did not take place; our concern is that they DID take place and he has sought to claim payment for these multitudinous meetings,very few of which could be described as necessary and reasonable. We believe that such work had no regard to the principle of economy: our contention is that it is highly unlikely that any private paying client would be willing to meet the cost of the service provided by Mr Lockhart. That aside, there are cases set out in the report where it is difficult to see what advice or assistance has actually been provided. Our Accounts staff are continuing to assess a number of his accounts and examining the corresponding client files which indicate repetition of the issues that gave rise to our initial concerns.”

The report’s findings concluded : “From April 2002—March 2005, Niels S Lockhart was paid £672,585 from the Legal Aid Fund. Of this, £596,734 (89%) was in relation to Advice and Assistance cases, with £570,528 (85%) solely in relation to Civil Advice and Assistance.”

“In the Board’s view, the ranges of actions taken by Niels S. Lockhart towards achieving those payments are not those appropriate to a competent and reputable solicitor.”

“Based on the supporting evidence he arranges for, or permits, his clients to attend his office on numerous occasions for excessive, unnecessary and often irrelevant meetings. In the main, these do not appear to have advantages for their further welfare or advance their case, but merely act as a mechanism for the firm to exploit the Legal Aid Fund by charging for these unnecessary and unproductive meetings.”

“The nature of subject matters is often repeated, resulting in numerous duplicate/multiple/consecutive grants submitted under various guises, thus avoiding the Board’s computerised checks on subject matter. This pattern of conduct is deliberate,recurring and persistent, serving—in the Board’s view—as a device to generate considerable additional income for the firm to the detriment of the Scottish Legal Aid Fund.”

Further documents released by the Scottish Legal Aid Board during 2015 – Extra Payments to Niels Lockhart – in response to a Freedom of Information request revealed Niels S Lockhart was paid a further £34,711 (excl VAT) of taxpayer funded legal aid by the Legal Aid Board – even though by that time he was already barred from claiming for any further legal aid work.

Historical payment accounts published by the Scottish Legal Aid Board also reveal Lockhart received a whopping £1.2million (£1,213,700) of public cash since the Legal Aid Board began publishing the names of firms and the size of payments from 2003 onwards.

From 2003 to 2013, Neils Lockhart claimed the following amounts of publicly funded legal aid: £280,200 in 2003-2004, £321,400 in 2004-2005, £95,400 in 2005-2006, £160,800 in 2006-2007, £133,300 in 2007-2008, £82,000 in 2008-2009, £65,800 in 2009-2010, £67,400 in 2010-2011, £7,200 in 2011-2012, £200 in 2012-2013

The Sunday Mail newspaper reported on the details of the now revealed court case:

Lawyer who made ‘eye-watering legal aid claims’ sued for £100,000 in compensation from taxpayer

Niels Lockhart said the Scottish Legal Aid Board (SLAB) had hurt his reputation amid the release of a damning report.

By Russell Findlay 26 November 2017 Sunday Mail

A rogue lawyer demanded £100,000 of taxpayers’ cash after legal aid chiefs revealed his history of inflated claims.

Niels Lockhart, 66, said the Scottish Legal Aid Board (SLAB) damaged his reputation by releasing a damning report which laid bare “unnecessary and excessive” payments.

He accused them of breaching his confidentiality and sued them for £100,000 – but has now dropped the claim.

The Sunday Mail obtained the report in 2011. We told how Lockhart claimed more than £600,000 of legal aid in two years and was accused of deliberately ramping up expenses.

The SLAB report stated: “He arranges for, or permits, his clients to attend his office on numerous occasions for excessive, unnecessary and often irrelevant meetings.”

They said the meetings merely acted as a mechanism for the firm to exploit the legal aid fund.

Legal reform campaigner Peter Cherbi, who unearthed the SLAB report through freedom of information laws, said: “Lockhart’s history of eye-watering legal aid claims was rightly subjected to public scrutiny yet he seems to see himself as the victim.”

SLAB said: “We were right to make public our complaint report to the Law Society of Scotland which set out our concerns about Mr Lockhart’s legal aid work.

“We successfully defended that decision in the court action raised against us by Mr Lockhart in which he sought payment of damages of £100,000 from SLAB. Mr Lockhart agreed to withdraw his action and pay us expenses of £1750.”

Lockhart said the decision to sue was taken after advice given by counsel who took the case on a no-win, no-fee basis.

He added: “The sum sued for was later altered to £30,000. There was thereafter a change in legal team who were not so optimistic.”

Lockhart claimed none of the SLAB allegations were proved to be correct and that they previously said no public funds had been compromised.

The original Sunday Mail report on Niels Lockhart in 2011 – reporting on the damning investigation of Lockhart’s legal aid claims

Solicitor made “unnecessary and excessive” claims for legal aid and raked in over £600,000 of public money

EXCLUSIVE: Mar 27 2011 Russell Findlay, Sunday Mail

This lawyer pocketed £600,000 Legal Aid in two years. His claims were ‘excessive, unnecessary, inappropriate, deliberate and persistent’ but it’s all OK because watchdogs say it was never.. CRIMINAL

LEGAL AID watchdogs have accused a solicitor who took £600,000 of taxpayers’ money in two years of deliberately ramping up his claims.

Niels Lockhart, 60, who runs a one-man firm in Kilmarnock, raked in £280,200 in 2004 then £321,400 the following year.

After he ignored a warning to curb his claims, the Scottish Legal Aid Board investigated before a probe team concluded that his applications were a systematic attempt to create extra fees.

But despite deciding that he routinely made “unnecessary and excessive” claims, SLAB did not call in police. They referred Lockhart to the Law Society who also decided no fraud had taken place.

The secret SLAB dossier, obtained through freedom of information laws, said: “Lockhart routinely makes consecutive grants of advice and assistance to the same clients for what appear to be similar matters submitted under a different guise.

In the board’s view, the ranges of actions taken by Lockhart towards achieving those payments are not those appropriate to a competent and reputable solicitor.

“He arranges for, or permits, his clients to attend his office on numerous occasions for excessive, unnecessary and often irrelevant meetings.

“In the main, these do not appear to have advantages for their further welfare or advance their case but merely act as a mechanism for the firm to exploit the Legal Aid fund by charging for these unnecessary and unproductive meetings.”

The audit discovered Lockhart’s firm was granted 392 “advice and assistance” applications for clients considering civil legal actions over 10 months in 2004 – more than double the number granted to the firm making the second highest number of similar applications.

The report stated: “The analysis revealed persistent patterns of excessive client attendances, the vast majority of which are irrelevant, unnecessary and conducted without due regard to economy.

“This appears to the board to be a deliberate scheme by Lockhart to make consecutive grants of advice and assistance on behalf of the same client for the same matter for personal gain.”

Slab officials warned Lockhart about his claims in April 2005 but he “continued to show contempt for the board’s serious concerns regarding his practices that were discussed at that meeting”.

That prompted SLAB to send their damning 13-page report to legal regulator the Law Society of Scotland in June 2006. Yet the Law Society did not report SLAB’s concerns to police or refer him to the Scottish Solicitors’ Discipline Tribunal. It took them another four years to even agree Lockhart should be banned from legal aid.

Last October, Lockhart’s lawyer James McCann struck a deal with SLAB which allowed Lockhart to agree to quit legal aid voluntarily. He continues to do other legal work.

A slab spokesman said: “The matter was not one of fraud and, therefore, not a criminal matter. A Law Society spokeswoman said: “Our powers in this situation relate to considering the solicitor’s conduct. It is not for the society to determine whether there has been fraud.”

Married dad-of-two Lockhart, from Ayr, said: “There was no suggestion of any dishonesty. I voluntarily removed myself. I was going to withdraw anyway. Where did you get this report?”

Diary of Injustice continued to report on allegations surrounding Mr Lockhart and the Law Society of Scotland’s efforts to avoid a prosecution. All previous reports can be viewed HERE.

If you suspect a solicitor is committing legal aid fraud, or if you feel your own solicitor is making fraudulent legal aid claims, email Diary of Injustice at scottishlawreporters@gmail.com

 

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GOOD FOR LAWYERS: Challenging year for ‘toothless, waste of time’ Scottish Legal Complaints Commission as complaints against lawyers rise again amid claims regulator has little impact on rogues of the legal world

Lawyers regulator proves no deterrent to poor legal services. SCOTLAND’S ‘independent’ regulator of legal services has admitted complaints against rogue solicitors & law firms have again risen in the past “challenging year” according to the latest Annual Report 2016-17 of the Scottish Legal Complaints Commission (SLCC).

The SLCC’s past year was marked by the Anderson Strathern appeal, in which Court of Session judge Lord Malcolm – real name Colin Campbell QC – ruled unlawful the SLCC’s previous practice of classifying certain single issue complaints as hybrid (raising issues of both service and conduct).

However, an investigation of the ruling by Lord Malcolm – who is also a Privy Councillor – revealed a top QC who was identified in complaints relating to the acceptance of £5,000 a time cash payments  and accusations of misrepresenting clients in a case directly involving Lord Malcolm – escaped investigation as a result of the same Court of Session ruling on 31 August 2016.

Earlier this year, the SLCC was branded a “toothless waste of time” by Alex Neil MSP (SNP Airdrie and Shotts) – who called for major reform of the Scottish Legal Complaints Commission after a Sunday Mail investigation revealed the SLCC refused to investigate serious complaints & cash payments involving ‘top’ planning law QC John Campbell (67) of Hastie Stable & Trinity Chambers.

Speaking to the Sunday Mail, Alex Neil said: “These technicalities show the SLCC as it stands is a waste of time. It’s not up to the job and we need major change.”

Mr Neil continued: “Parliament’s justice committee should have an urgent and comprehensive look at this and rewrite the legislation so people have a reasonable time to register legitimate complaints.”

“People need assurance that the legal profession isn’t just looking after itself all the time. People have no confidence in the system.”

A full report on the John Campbell case impacted on by Lord Malcolm’s ruling can be found here: CASH ADVANCE: QC says ‘Can I have £5k cash on the way to the Law Society?’ – MSP calls for reform of ‘toothless’ Scottish Legal Complaints Commission as regulator turns blind eye on Advocates cash payments scandal.

Further litigation occurred with the Law Society of Scotland over the SLCC’s power to then reclassify cases, in which the court eventually found for the Legal Complaints Commission but resulted in a large number of complaints being suspended, with no progress made until the ruling in June.

Over the year, complaints received rose from 1,132 to 1,155, up 2% on top of the previous year’s 12% rise.

However, an analysis of the complaints statistics, and contact with persons raising complaints with the pro-lawyer Scottish Legal Complaints Commission reveal the SLCC is more often than not – too eager to knock back complaints against solicitors – in a similar manner once practiced by the Law Society of Scotland.

In the past year, a total of 414 cases were accepted for conduct or service investigation, or a combination of the two (previous year 408), and 171 (compared with 226) were deemed ineligible as time barred or being “frivolous, vexatious or totally without merit”.

A further 251 cases (previous year 188) were resolved, withdrawn or discontinued without a formal investigation.

Solicitors accounted for 410 of the complaints accepted while 4 of the cases related to members of the Faculty of Advocates.

However, this year, the success rate of mediation was much lower – indicating perhaps complainants have become wise to a process dubbed as “rigged” by some, after it was discovered some ‘independent’ mediators have connections to some of the law firms facing complaints investigations.

In the past year, mediated resolutions were achieved in only 27 complaints (44 the previous year), a lower success rate than previously at 58%.

Sixty three cases were resolved during or at the conclusion of the investigation stage (down from 128), and the number receiving a final determination by a committee of commissioners fell from 102 to 95, of which 44 (down from 58) were upheld in whole or part.

The number of investigations in hand at the year end rose from 664 to 807, having jumped from 473 at the start of the previous year.

Residential conveyancing was again the most frequent area of complaint, at 22% of those received, closely followed by litigation (21%), then executries, wills and trusts (14%), family law (10%) and crime (7%). Commercial property and leasing accounted for 4%, as did “personal conduct”. Other categories of work, each comprising fewer than 3% of complaints, accounted for the remaining 18%.

Regarding the nature of the complaint, however, failure to communicate effectively was a clear leader at 26% (but down from 43%), followed by failure to advise adequately (20%, up from 14%), failure to provide information (14%, down from 15%), failure to prepare adequately (11%, up from 6%), failure to follow instructions (10%, up from 6%), and delay (unchanged at 8%). Other categories made up 6% of cases.

The accounts for the year, also published today, disclose a net operating loss up from £114,000 to £194,000, though income rose from £2.714m to £2.763m. Net assets fell from £675,000 to £421,000.

This year the current Chair, Bill Brackenridge, comments on coming to the end of his statutory term after five years as well as this year’s performance: “the SLCC has sought to drive efficiency within the current statutory process whilst making bold calls for reform.  This year we were pleased to see the Scottish Government announce an Independent Review of the Regulation of Legal Services, and we will continue to contribute to work to improve the regulatory and complaints system for consumers and lawyers”

“This year complaints against lawyers continued to rise, a further 2% on top of 12% last year.  We recognise that complaints form a tiny proportion of overall transactions in which lawyers support clients, but increasing case load continues to be a key factor in performance and costs.  This year we have also seen a continuing trend towards more complaints entering the later stages of our process.  To tackle this we’ve worked to support consumers and the sector with guides to reduce the common causes of complaints.”

SLCC Chief Executive Neil Stevenson added “this has been a challenging year, with significant litigation that has driven delays and costs and which was outwith our control.  We are delighted the court upheld our position, and hope we can now move beyond some of these challenges to work with others in the sector to improve confidence in regulation.

On a personal level one of the organisational achievements we all contributed to, and which I am most proud of, is a significant improvement on our staff engagement survey results. I’m also delighted that we are in the rare position of gender pay parity.”

The SLCC’s Annual Report and Annual Accounts are laid before the Scottish Parliament by the Minister for Community Safety and Legal Affairs.

In the past NINE years since the Scottish Legal Complaints Commission was created in 2008, the Law Society backed ‘independent’ regulator of complaints against legal practitioners in Scotland – including solicitors and advocates – has more often than not seen year on year rises in complaints while becoming involved in protracted orchestrated arguments with lawyers over funding for the legal quango.

In reality, funding for the SLCC – running at around £3million a year – is secured from a client sourced complaints levy – where hikes in solicitors legal fees to clients & consumers are used to pay for the upkeep and operation of the Scottish Legal Complaints Commission.

Since 2008, the SLCC has received nearly £30 million of client sourced funds – yet it is now clear the pro-lawyer quango has had little impact on the generally poor standards of expensive legal services available in Scotland.

Currently the Scottish Legal Complaints Commission is involved in lobbying against a Scottish Parliament investigation into self regulation of the legal profession, a full report on this can be found here: LOOKING OUT FOR LAWYERS: Scottish Ministers unite with lawyer dominated review panel & pro-lawyer legal regulator – to urge Holyrood MSPs delay probe on proposals for independent regulation of legal services.

The SLCC, along with the Law Society of Scotland and other legal interests have made submissions to the Scottish Parliament’s Public Petitions Committee calling for MSPs to hold off on hearing petitions calling for independent regulation – until a Scottish Government review on regulation of legal services reports back at the end of 2018. The ‘independent’ review, is in actuality being run by lawyers.

ANOTHER DAY IN COURT – Unidentified Law firm accused in client complaints fails in bid to overturn investigation

The Court of Session recently ruled in favour of the SLCC in refusing an application by a firm of solicitors for leave to appeal one of the Commission’s decisions. The application came from a firm seeking leave to appeal a decision that a number of issues of complaint were accepted as eligible services complaints and were not frivolous, vexatious or totally without merit. It was unusual in that only some issues of complaint accepted were being appealed.

The full findings – by Lord Glennie are available here: NOTE OF REASONS delivered by LORD GLENNIE in the application for leave to appeal by X LLP AND OTHERS (Appellant) against SCOTTISH LEGAL COMPLAINTS COMMISSION (Respondent).

However, it should be noted the Court ruling does not identify the law firm involved.

The SLCC’s eligibility determination that some issues of complaint should be accepted for investigation represents what is essentially a sifting function to establish whether issues of complaint require investigation. The Court endorsed the already established view that at this stage there is a low bar for accepting issues of complaint, Lord Glennie’s Notes of Reasons stating “the Commission has to decide in respect of each complaint whether it is frivolous, vexatious or totally without merit; and if it decides the complaint is any or all of these things, it must reject the complaint and notify the relevant parties.  That is a high test to be applied or, to put it another way, is a low threshold to be crossed.”

Mark Paxton, one of the SLCC’s Case Investigation Managers, explained “there can be misconceptions about the eligibility test, one of the most complex stages within the process prescribed in statute.  We have seen comments in the past that ‘too many complaints’ are let in, but the courts are once again making clear there is a high test to be met if complaints are dismissed at this stage.  We know others can think the eligibility decision is an early indication of eventual substantive outcome, which is not the case – it is simply a decision that matters need formally investigated to have sufficient information to make a decision. We are also aware that, for practitioners, the fact that this is a formal “decision”, appealable to the Court of Session, suggests that it is somehow already a stain on the practitioner’s record – which again is just not the case.”

Lord Glennie went on to reiterate that “the nature and extent of the investigation to be carried out by the Commission, and how they go about it, is pre-eminently a matter for the Commission itself.”  Having considered that there was no basis for establishing that the SLCC had erred in law or acted irrationally the Court refused leave to appeal the decision.

What was also highlighted in this case was the time and resource expended by the SLCC in carrying out this sifting function. The Court also made reference to the detail in which the SLCC had dealt with this determination, stating “The Commission’s decision in the present case is very fully reasoned… The decision deals with each complaint individually and over a number of paragraphs”.

The resources expended by the SLCC in relation to appeals bears a significant financial cost to the organisation. In this particular case, costs will be recovered following the decision of the Court to award expenses. However such an award is unlikely to recompense the full cost of all work done in relation to the appeal, and the process of contesting appeals continues to be a significant factor which the SLCC has to contend with in managing its budget.

Neil Stevenson, CEO added: “The expense of appeals has been a key driver of increasing cost in the last two years. Looking at other complaints bodies and ombuds it is very unusual for a right of appeal, especially to such a senior court, to be provided for in a complaints process on a decision simply that something needs investigated.  Our current proposals for statutory reform recommend that a more proportionate approach should be considered.”

The SLCC itself was created at a cost of over £2 million pounds of public cash in 2008 – by a Scottish Government team led by Angela McArthur – who was since appointed as Chief Executive of the Parole Board of Scotland from 2009 to present day.

Previous media investigations, reports and coverage of issues relating to the SLCC can be found here: Scottish Legal Complaints Commission – A history of pro-lawyer regulation.

 

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LOOKING OUT FOR LAWYERS: Scottish Ministers unite with lawyer dominated review panel & pro-lawyer legal regulator – to urge Holyrood MSPs delay probe on proposals for independent regulation of legal services

Ministers, lawyers & legal regulator seek Holyrood probe delay. A PROPOSAL before the Scottish Parliament calling for views on scrapping self regulation of the legal profession in Scotland – has received representations from Scottish Ministers , the Chair of a pro-lawyer review panel and a Law Society-backed legal regulator – calling for MSPs to back off from investigating regulation of legal services.

Unsigned letters from the Scottish Government, the Chair of an ‘independent’ review group dominated by lawyers, and the pro-lawyer Scottish Legal Complaints Commission (SLCC) – call on members of the Scottish Parliament’s Public Petitions Committee to wait until the end of a two year review – conducted by lawyers – before MSPs conduct any independent investigation of lawyers investigating themselves.

A letter from the SLCC states: “The SLCC is certainly confident that the independent review of legal regulation will actively consider the issues we have been raising over the last 18 months, and which the petitions support from a public perspective, and look forward to the final report on these complex issues currently expected in July 2018.”

However, in reality the issues raised by the SLCC in a report titled “Reimagine Regulation” do little for consumer protection, leaving complaints and investigations firmly in the hands of lawyers, as was reported last year, here: ROGUES REIMAGINED: Scottish Legal Complaints Commission calls on Scottish Government to reform “complex and legalistic” solicitors’ self regulation & complaints system

Meanwhile, representations from the Scottish Government, and an unsigned letter from the Chair of a lawyer dominated review panel – are careful not to demand outright, but infer MSPs halt their consideration of calls to scrap the historically biased system of self regulation of lawyers in Scotland.

The latest submissions from the three pro-lawyer groups come in the wake of a call for evidence by the Scottish Parliament’s Petitions Committee on two public petitions seeking to replace self regulation of the legal profession in Scotland with fully independent regulation of legal services – as occurs in England & Wales.

In September, MSPs called for views on bringing Scotland into line with the rest of the UK – where a much greater independent level of legal regulation exists compared to the current Law Society of Scotland & SLCC pro-lawyer regulation model.

Petition 1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission with a view to making the process of legal complaints more transparent and independent.

Petition 1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, Legal Ombudsman, Bar Standards Board and Solicitors Disciplinary Tribunal which serve consumers and clients of legal service providers in England and Wales.

Earlier this year, former Cabinet Minister Alex Neil MSP (SNP Airdrie and Shotts) said the ‘independent’ review created by the Scottish Government, should include judges – and the membership of the review team should be expanded to balance up the panel’s current top heavy legal interests membership.

In another development, Alex Neil recently branded the Scottish Legal Complaints Commission (SLCC)  “a toothless waste of time” – after the legal services regulator failed to act in a high profile case involving a senior QC – John Campbell – who is caught up in a cash payments scandal – which has since led to information provided to journalists on other Advocates & QCs who have demanded & pocketed substantial and apparently undeclared cash sums from clients.

During the debate on the two petitions – on 21 September – members of the Public Petitions Committee agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland, the Faculty of Advocates, Scottish Solicitors’ Discipline Tribunal, Citizens Advice Scotland and the Judicial Complaints Reviewer.

It is also open for anyone else to put their views to the Petitions Committee on these petitions, or for constituents to request their MSPs submit material on their constituents behalf.

Regulation of legal profession reform – Public Petitions Committee 21 September 2017

Legal Profession (Regulation) (PE1660 & PE1661)

The Convener: The next two new petitions are PE1660 by Bill Tait and PE1661 by Melanie Collins, both of which raise similar issues in relation to the current system for complaints about legal services in Scotland. Members have a copy of the petitions and the respective SPICe briefings.

PE1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission to make the process of legal complaints more transparent and independent. PE1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, the Legal Ombudsman, the Bar Standards Board and the Solicitors Disciplinary Tribunal, all of which serve consumers and clients of legal service providers in England and Wales.

Do members have any comments or suggestions for action on the petition?

Michelle Ballantyne: First of all, I note that there is a review under way. However, although it was launched in April, it is not due to report until the end of next year, which seems an awfully long time.

I am concerned about a turkeys voting for Christmas arrangement with regard to oversight of this matter. There needs to be some clear water between lawyers and those who review them, and this feels a bit close for comfort. We should check where the review is going and what it is looking at, because if it has been launched, the question is whether we need to be doing something parallel alongside it.

Angus MacDonald: Both petitions are extremely timely. Bill Tait and Melanie Collins have highlighted serious issues with regard to the legal profession and the way in which the SLCC operates in respect of complaints. I agree with Melanie Collins that there is a strong argument in favour of creating a new independent regulator of legal services, and I agree with Bill Tait’s call to make the process of legal complaints more transparent and independent.

In recent years, we have seen a degree of conflict between the SLCC and the Law Society of Scotland over the operation of the complaints system. I am sure that I was not the only MSP to receive representations from the Law Society earlier this year, stating frustration and disappointment at the increase in the SLCC levy to be paid by solicitors. It also stated that the complaints system was slow, complex, cumbersome and expensive. There is no doubt in my mind that this is the right time to look at this issue.

As Michelle Ballantyne has mentioned, the Scottish Government has acknowledged that the current process for people wishing to make complaints about their solicitor is too slow and complex, so I was certainly pleased to see the Scottish Government launch its independent review of the regulation. However, I take on board Michelle Ballantyne’s point about the review not being due to report back until the end of 2018; the period seems quite lengthy, but clearly, we can contact the Government for clarification. Given the similarity of the two petitions, there is a strong argument for joining them together to help move them forward.

The Convener: First of all, does the committee agree to join the petitions together? It seems to me that they deal with the same issues.

Members indicated agreement.

Brian Whittle: Am I correct in thinking that the Law Society called for a change and was rebuffed?

Angus MacDonald: I am not entirely sure—it certainly was not happy.

Rona Mackay: It was about the levy. It was not happy with some of the SLCC’s operation, but, as far as I am aware, it has not formally called for a change.

Brian Whittle: I thought that it was investigating this very point and was rebuffed. I might be wrong.

The Convener: It would be worth getting it clear in our own heads where all of this stands. We can obviously ask for that information.

The suggestion is that we write to the Scottish Government about the review’s timescale and remit, and I think that we should write to the relevant stakeholder bodies to ask about what issues they have. It does not feel that long since the legislation was passed, so it would be a natural time to look at and reflect on whether it has been effective and what the alternatives might be. My sense is that, when the legislation went through Parliament, we wrestled with the options—it did not go through without debate. Perhaps we should look at whether this is a bedding-in issue or an actual structural problem and whether, as the petitioner suggests, the issue needs to be revisited and a different kind of regulatory body put in place.

I think that we have agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland and the Faculty of Advocates. Citizens Advice Scotland was mentioned, as was the Scottish Solicitors Discipline Tribunal. Are there any others?

Angus MacDonald: Would it be worth contacting the Judicial Complaints Reviewer? Although it deals with judicial complaints, as per the title, it would be good to get its view, if it has one. Of course, it is not compelled to reply.

The Convener: Do we agree to deal with both petitions in that way?

Members indicated agreement.

The latest submissions from the Scottish Government, the Chair of the Independent Review of the Regulation of Legal Services and the Scottish Legal Complaints Commission, are reprinted below:

PE1660/E & PE1661/E Scottish Government submission of 6 November 2017

I refer to your letter dated 28 September 2017 seeking the Scottish Government’s views on petition PE1660 by Bill Tait with regards to the operation of the Scottish Legal Complaints Commission, and petition PE1661 by Melanie Collins regarding amending the regulation of the complaints about the legal profession.

The independent review of the regulation of legal services, announced in April 2017, has been set up to look into these matters and that we understand that the chair, Esther Roberton, will be responding to the committee separately.

The chair is due to report to Ministers by the end of July 2018 and will include the review findings around the complaints handling system.

PE1660/D & PE1661/D Chair of the Independent Review of the Regulation of Legal Services submission of 23 October 2017

I refer to your letter dated 28 September 2017 seeking the Scottish Government’s views on the calls from Bill Tait to review the operation of the Scottish Legal Complaints Commission, and from Melanie Collins to reform and amend the regulation of complaints about the legal profession in Scotland.

The independent review of the regulation of legal services was announced by the Minister of Community Safety and Legal Affairs, Annabelle Ewing on 25 April 2017. I chair the review and my deadline to report to Ministers is by the end of July 2018.

As described in the remit for the review, which is broad, its purpose is to make independent recommendations to reform and modernise the statutory framework for the regulation of legal services and complaints handling. We are committed to ensuring that our recommendations focus on consumers, providers of legal services and the market place for legal services in Scotland. The time is right to appraise the regulatory system, which last saw substantial changes as a consequence of the 2010 Act, and which the current regulators and others agree is ready for review.

The panel, made up of individuals with experience in legal services, consumer interests, regulatory systems, and complaints systems have met five times to date.

Gathering evidence from a full range of stakeholders with an interest in our work is crucial to help inform our findings. This includes professional bodies, regulators, consumer bodies, a wide range of providers of legal services, business organisations and others. Stakeholder events will take place in November-December, with a formal call for evidence launching at the turn of the year.

The review is also considering relevant information such as regulation in other sectors and in legal services regulatory systems from other parts of the world, and has commissioned a specific study into unregulated legal services.

I have copied this letter to the Justice Committee and am happy to provide further updates if either committee wishes those in due course.

PE1660/C & PE1661/C Submission from Scottish Legal Complaints Commission of 31 October 2017

Thank you for your letter of 26 September about the Petitions Committee on 21 September about petitions PE1660 (Bill Tait) and PE1661 (Melanie Collins) relating to regulation and complaints in legal services.

We spoke on 27 October. For some reason, which neither of us could identify, we had not received the original letter, although had been expecting it and indeed had emailed on 10 October to ask if we were to receive such a letter. We’re very grateful, therefore, that you allowed us a short extension to respond.

We agree there is a strong case for reform in some areas, we have actively lobbied for this, and we’re confident the current Independent review of the regulation of legal services will address matters.

In this letter the SLCC sets out our general position on reform first, which significantly pre-dates the petitions, and then addresses some specific issues raised in the petitions.

THE SCOTTISH LEGAL COMPLAINTS COMMISSION

The Scottish Legal Complaints Commission (SLCC) is the independent gateway for all complaints about solicitors, advocates and commercial attorneys. We have experience of handling over 10,000 complaints, and last year alone awarded consumer redress over £324,000. An independent Consumer Panel also helps guide our work.

For a two-page summary of our work, and its impact on consumers see: https://www.scottishlegalcomplaints.org.uk/media/69464/annual review.pdf

OUR PROPOSALS FOR REFORM

The SLCC has actively called for radical change to the regulation of the sector. In July 2016 we published our paper #ReimagineRegulation, which is available on our website: https://www.scottishlegalcomplaints.org.uk/reimagine-regulation.aspx. A detailed set of supporting appendices provide, among other things, a history of the Scottish Parliament’s involvement in these issues since the parliament’s creation.

We hope this is of assistance to the Committee.

The SLCC robustly highlighted key areas for change which we believe could deliver better results for the sector and for the consumer:

1. Unravelling the current complex complaints maze

Up to four statutory bodies can be involved in a single case, causing duplication and delay. We provide a visual representation of the ‘customer journey’ to highlight the current problems.

2. Reducing statutory detail that focuses on processes, not outcomes for people

Complex and inflexible processes have lost sight of the principles of better regulation and distracted from a focus on the outcomes for the public and sector.

3. Ensuring that when redress is awarded the client receives it

In too many cases redress is awarded but failings in the current system mean the complainer does not receive it, undermining confidence in the system.

4. Targeting risk, and not seeing all legal services as the same

For example, conveyancing is a major driver of all regulatory costs across more than one statutory body – how do we either better support, or more proportionately regulate, in that area to reduce this consumer detriment?

5. Embedding the consumer principles

Professional voices in debates in regulation are always informed, strong, and well resourced. We need to understand consumer’s need, and hear their voice, if regulation is to be credible.

6. Learning from complaints and data to improve future outcomes

Modern regulation is about identifying and targeting risk, and creating proportionate and agile structures to tackle issues in fast moving markets. 10 years after our establishment we too often find it is the same basic issues causing problems with consumers, with little done (it being outwith the SLCC’s remit) to tackle the root cause.

SPECIFIC ISSUES RAISED IN THE PETITIONS

A key question is raised about a single regulator, or at least complaints body, and the SLCC believe this merits serious consideration. The cost and confusion caused by four different bodies, for a sector of only 11,000 professionals, is an issue in its own right.

Even if a single body is not eventually possible, debating that model will more sharply focus the discussion on the core purpose and aims of regulation in the sector, and the key mechanism to reduce risk and support a sustainable market, rather than starting discussion from the perspective of the current fragmented roles and responsibilities.

The SLCC also agrees oversight issues need considered. At the moment there is a fractured framework. For example, whilst the SLCC is overseen by an independent Board of Commissioners appointed by government, is subject to Freedom of Information, and comes within the remit of Audit Scotland, not every organisation involved in regulation is currently so transparent, nor under such financial scrutiny. At the moment no bodies, including the SLCC, come under the best practice promoted by the Regulatory Reform (Scotland) Act 2014. As we continue the journey of the modernisation of legal regulation a single approach to oversight, with consistent minimum legislative requirements, would be a positive outcome.

Several statutory levies are payable by lawyers, and the value of the fees, and the balance of spending between regulatory and representative functions, should be considered in the round. None of the bodies currently involved have their budgets approved by parliament. In all governance matters legislation is balancing the need for regulation independent from government with what are appropriate governance structures. As with many issues raised, this may be best looked at in the round, as from the lawyer and consumer perspective it is the total cost of regulation which is key.

The SLCC had already raised concern at the only route of appeal being to the Court of Session. This point was made in our paper last year about reform, and we believe the legislation should be amended to allow a more proportionate mechanism. This is part of reducing the current complaints maze, so there is a single investigation, and single set of decisions, and a single appeal.

The SLCC supports the emphasis placed on independent regulation. We believe expert input into regulation is absolutely essential, and that a regulator must be credible to the profession as well as the public. However, the best model for delivering this has been contentious in previous parliamentary debates. The overwhelming trend in UK terms for regulation has been around an ongoing journey from self-regulation to independent regulation (for example, only today, joint work has been published by the four UK health departments on the evolution of governance in the regulation of health professionals:

https://www.gov.uk/government/consultations/promoting-professionalism-reforming- regulation para 4.18 onwards). These petitions highlight that this is likely to be the expectation of the public.

In all of this public and consumer voices are vital. There is a deeply worrying lack of independent research into consumer needs and detriments in Scotland in the legal sector. The SLCC’s Consumer Panel has been instrumental in flagging this in recent years. However, the government’s own previous review of legal regulation in 2006 had raised this as a concern, and the situation has, if anything, deteriorated further since then (for example with Consumer Focus Scotland no longer in existence and doing work in this field). A top priority should be the creation of a better evidence base from those who use services, alongside the professional voices.

Ignoring those consumer voices has consequences, and this is relevant to one specific issue raised in this petition. In debating the legislation that led to the creation of the SLCC consumer groups valued transparency, and that the SLCC should be able to publish decisions about complaints. However, after extensive lobbying by other interests a decision was made that not only would the outcome of complaints not be published, but that a new criminal offence would be created for any divulgence of information, an offence so wide that it covers even confirming if a complaint has been received. This is out of step with other professions and sectors, and other jurisdictions, where there is more discretion to publish when there is public interest. The SLCC understands the frustration of complainers, but must abide by the current legislative framework. As with most issues covered in the petition, we had raised this ourselves last year in our paper on reform.

LEVY

We noted in the discussion within the committee mention of our consultation on the levy for solicitors last year (the fees all solicitors, advocates and commercial attorneys need to pay each year, set to cover the cost of processing complaints).

Although in past years the SLCC had managed to reduce the levy, a significant increase was proposed last year. This was driven by a number of factors, the two biggest of which were a rise in complaints and a judicial review, and 17 appeals to the Court of Session, launched by the Law Society of Scotland.

The rise in complaints had been steep, with a 12% increase in complaints against solicitors within 12 months. This has now been followed in the subsequent year by a further 2% rise, and current predictions are that complaint numbers are continuing to increase. We recognise paying the cost of complaints is not popular with any sector, and as a member led organisation the Law Society would always challenge costs, but a more positive debate would have focussed on how to tackle the common cause of complaints and reduce harm to the public.

In terms of the number of litigations by the professional body, we were pleased to win the ‘test case’, and to have the court confirm SLCC had been acting in a way consistent with ‘good public administration’. We had publicly warned these litigations would cause cost, delay and worry to complainers and practitioners, and were unnecessary, as proved to be the case. We were disappointed that in their lobbying against the levy the Law Society did not mention its own actions were one of the big drivers of cost.

CONCLUSION

I hope our #ReimagineRegulation paper displays a body which is not only ‘up for’ change, but actively trying to stimulate a debate about how parliament, government, consumers and the profession can work together to create a better system in Scotland.

The SLCC is certainly confident that the independent review of legal regulation will actively consider the issues we have been raising over the last 18 months, and which the petitions support from a public perspective, and look forward to the final report on these complex issues currently expected in July 2018.

Reimagine Regulation – SLCC priorities for a consultation on legal services regulation

Reimagine Regulation – SLCC appendices to our main paper

SLCC Annual Review 2017

LAWYERS REVIEW THEIR OWN REGULATION: Third attempt by SCottish Government at reforming biased system of solicitors self regulation.

The latest review of the way lawyers regulate themselves marks the third attempt at addressing problems created by Scotland’s pro-lawyer system of self regulation, where lawyers write the rules, and look after their own.

In 2001, the Scottish Parliament’s Justice 1 Committee, under the Convenership of Christine Grahame MSP, met to consider evidence in relation to calls to reform regulation of the legal profession.

The inquiry, gained by the late, widely respected MSP, Phil Gallie, heard evidence in relation to how complaints were investigated by the legal profession.

However, Mr Gallie was replaced by Lord James Douglas Hamilton, and the Committee eventually concluded not to amend how the Law Society regulated Scottish solicitors.

A second, more substantive attempt to reform regulation of the legal profession came about in 2006, with the Scottish Parliament’s then Justice 2 Committee taking on consideration of the proposed Legal Profession & Legal Aid (Scotland) Act, which received Royal Assent in 2007.

The LPLA Act led to the creation of the now widely derided Scottish Legal Complaints Commission – once touted as an ‘independent’ solution to handing complaints against solicitors and advocates.

A mere nine years after the creation of the SLCC in 2008, the badly run legal quango, often itself the subject of scandal, charges of incompetence and downright bias – has become as much a threat to consumer protection as the Law Society itself was in the days when complaints were handled at the Law Society’s former HQ in Drumsheugh Gardens, Edinburgh.

Regulating the legal profession: Usual suspects selected by legal profession to carry out independent review on regulation of solicitors:

The independent review of the regulation of legal services in Scotland is expected to consult widely with stakeholders and report to Scottish ministers by the end of 2018.

The independent chair of the review is Esther Roberton, current chair of NHS 24. Ms Roberton has extensive senior leadership experience in the NHS and other areas of public life.  She is also currently a board member of the Scottish Ambulance Service (2014-18).  She was chair of SACRO (2010-2014) and until recently also sat on the Crown Office and Procurator Fiscal Service Audit and Risk Committee (COPFS ARC).

The review panel have confirmed their participation as follows:

•      Christine McLintock – immediate past president Law Society of Scotland
•      Alistair Morris – chief executive of the management board, Pagan Osborne (Law Society of Scotland)
•      Laura Dunlop QC – Hastie Stables (Faculty of Advocates)
•      Derek Ogg QC – MacKinnon Advocates (Faculty of Advocates)
•      Neil Stevenson – chief executive of the Scottish Legal Complaints Commission
•      Nicholas Whyte – chair of Scottish Solicitors’ Discipline Tribunal
•      Ray Macfarlane –  chair of the Scottish Legal Aid Board
•      Jim Martin – outgoing Scottish Public Services Ombudsman
•      Dr Dame Denise Coia – chair of Healthcare Improvement Scotland
•      Prof Lorne Crerar – chairman, Harper Macleod LLP
•     Prof Russel Griggs – chair of the Scottish Government’s Independent Regulatory Review Group
•     Trisha McAuley OBE – independent consumer expert

A full report on the Scottish Government’s review of legal services – unmasked as a lawyer dominated pro-self regulation panel – can be found here: REGULATED REVIEW: Scottish Government panel to look at self regulation of lawyers – Former Cabinet Minister calls for review to include judiciary, and panel membership to strike ‘better balance between lawyers & non-lawyers’

 

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LOOK AFTER LAWYERS: Law Society wants to keep 70 year ‘successful’ system of lawyers investigating themselves – in response to Scottish Parliament petitions calling for UK style independent regulation of legal services in Scotland

Law Society says lawyers should investigate themselves. A PROPOSAL before the Scottish Parliament calling for views on scrapping self regulation of the legal profession in Scotland – has heard claims lawyers have successfully investigated themselves for seventy years – and that this ‘arrangement’ should continue.

Members of the Scottish Parliament’s Public Petitions Committee have now received the views of the Law Society of Scotland , and Scottish Solicitors Discipline Tribunal  (SSDT) – who both want to continue the current system where lawyers maintain their own ‘standards’, write their own rules, and investigate complaints against themselves.

The Law Society of Scotland stated in a letter to MSPs – PE1660B and PE1661B: Law Society of Scotland“the dual role of regulation and professional support has been successfully carried out for almost 70 years”

The Law Society goes on to claim “This issue was considered in depth by the Scottish Government ahead of the 2010 Legal Services Act with a clear conclusion that the model of having a single professional body was right for Scotland.”

However, thousands of complaints a year made against solicitors in Scotland by clients who end up considerably worse off financially after bruising encounters with lawyers even on the most common legal services show the profession’s self regulation model as predominantly dishonest.

The Scottish Solicitors Discipline Tribunal – who were exposed in a BBC Scotland documentary for shying away from striking off serially dishonest solicitors – ‘suggested’ in their own letter to MSPs – PE1660 A and PE1661: Scottish Solicitors Discipline Tribunal – that the Scottish Parliament wait until a two year review is complete before considering the petitions.

The Disciplinary Tribunal said in it’s letter to the Committee: “The Tribunal considers that the issues raised in Petitions PE1660 and PE1661 are being considered in the current Review which includes an examination of the legal complaints system in Scotland and an analysis of legal complaint handling in other jurisdictions. Perhaps it would be appropriate to await the recommendations of the current Review before there is detailed consideration of the issues raised in these Petitions”.

However, the Scottish Government review referred to by the Disciplinary Tribunal –  has already come in for stinging criticism due to it’s dominant complement of vested interests from the legal profession who lobby against any change to the current system of regulation where lawyers investigating themselves.

The letters come in response to petitions being considered by the Public Petitions Committee calling for a radical overhaul of the way complaints against the legal profession are handled in-house by the Law Society and ‘independent’ Scottish Legal Complaints Commission (SLCC).

In September, MSPs called for views on bringing Scotland into line with the rest of the UK – where a much greater independent level of legal regulation exists compared to the current Law Society of Scotland & SLCC pro-lawyer regulation model.

Petition 1660 calls on the Scottish Parliament to urge the Scottish Government to review the operation of the Scottish Legal Complaints Commission with a view to making the process of legal complaints more transparent and independent.

Petition 1661 calls on the Scottish Parliament to urge the Scottish Government to reform and amend the regulation of complaints about the legal profession in Scotland, which is currently delegated to the Scottish Legal Complaints Commission, by creating a new independent regulator of legal services with powers equivalent to the Solicitors Regulation Authority, Legal Ombudsman, Bar Standards Board and Solicitors Disciplinary Tribunal which serve consumers and clients of legal service providers in England and Wales.

The move by Holyrood to look at the issue of self regulation of lawyers – comes after the Scottish Government announced a ‘review’ of legal services regulation in Scotland, back in April 2017.

However, the Scottish Government ‘review’ – will not report back until the end of 2018 and with non binding recommendations – and has come in for significant criticism after it was found there was only one consumer related interest among the legal related membership.

When the review was announced earlier this year, former Cabinet Minister & SNP MSP Alex Neil said the review remit should also include judges.

Alex Neil said: I hope it produces radical and robust proposals. I also hope it covers the judiciary as well as lawyers.”

Mr Neil also called for greater fairness in the panel’s membership, to include members from outside the legal establishment.

Mr Neil added: I hope the membership of this review panel will be expanded to get a better balance between lawyers and non-lawyers”

A full report on the Scottish Government’s review of legal services can be found here: REGULATED REVIEW: Scottish Government panel to look at self regulation of lawyers – Former Cabinet Minister calls for review to include judiciary, and panel membership to strike ‘better balance between lawyers & non-lawyers’

During the last debate on the two petitions, members of the Public Petitions  Committee also agreed to write to the Scottish Government, the Scottish Legal Complaints Commission, the Law Society of Scotland, the Faculty of Advocates, Scottish Solicitors’ Discipline Tribunal, Citizens Advice Scotland and the Judicial Complaints Reviewer.

Regulation of legal profession reform – Public Petitions Committee 21 September 2017

If proposals within the petitions go ahead, this would bring regulation of legal services in Scotland into line with independent regulation as practiced in England & Wales.

The full letter from the Law Society of Scotland to the Public Petitions Committee:

PE1660/B PE1661/B Law Society of Scotland submission of 16 October 2017 REGULATION OF THE SCOTTISH LEGAL PROFESSION

Thank you for your letter of 29 September. We are grateful for this opportunity to feed into the Committee’s consideration of petitions PE1660 and PE1661.

As the professional body for Scottish solicitors, we share the petitioners’ desire to improve the regulation of legal services. The Scottish legal sector has evolved considerably since the introduction of the Solicitors (Scotland) Act 1980, which is the main legislative framework governing the regulation of legal services. We are clear that reform is needed, both to protect clients’ interests and to ensure the legal sector, which contributes so significantly to the Scottish economy, can be competitive and continue to thrive.

We approach these issues with almost 70 years’ experience of delivering robust regulation of the legal profession. As the principal regulator of Scottish solicitors, we take our duty to protect the public interest extremely seriously, a fact demonstrated through the range of activity which we carry out.

First and foremost, we set high professional standards which all solicitors must meet, including a robust route to qualification along with practice rules and guidance which is regularly reviewed. Our highly trained financial compliance team inspect around 370 law firms each year to ensure compliance with our strict accounts rules. In 2015/16 and as a result of these inspections, we raised 17 complaints of our own to the Scottish Legal Complaints Commission (SLCC). Additionally we intervene quickly in firms when things go wrong, ensuring clients know who to contact, where their files are and offering the assurances they need. Even when clients choose to no longer pursue an initial complaint against their solicitor, we will raise our own complaint if it is in the public interest and in order to maintain standards. In total we raise around 30 complaints a year against solicitors to the SLCC.

By setting, maintaining and vigorously enforcing standards, we strive to ensure that consumer interests remain the central focus of our regulatory work and that consumer confidence in the Scottish solicitor sector remains high. A poll of the Scottish public in

2016 indicated that 90% of those surveyed are satisfied with the services provided by their solicitor and 82% would recommend their solicitor to others. That poll also demonstrated high levels of trust in the legal profession as a whole.

The case for change: We recognise that, despite the strong system of regulation in place, further work is needed to improve that system. This is particularly true around the area of complaints handling, where processes need to be simpler and consumer protection stronger. Given the regulatory framework and processes involved are set out within primary legislation, we are afforded little flexibility within the existing system. This is why we proactively approached the Scottish Government in 2015, submitting a detailed paper which set out the case for new legislation to better protect consumers and allow the legal services market to thrive . Our proposals include better regulation of legal firms and individual solicitors to improve standards in addition to a wider regulatory reach over other legal professionals.

This is in response to the dramatic changes we are seeing in the Scottish and UK legal services market. New expectations from clients, new business models, the growth of cross border legal firms and increased technology are all serving to reshape that market. Yet most of the legislation covering the operation and regulation of the legal market is approaching 40 years old and did not anticipate the changes we are seeing today.

Whilst taking forward reform, we also believe it vital to preserve the elements and principles of the current regulatory framework which work well – the independence of the legal profession; a single professional body; independent discipline body. These must be protected.

We were delighted that, in response to our proposals, the Scottish Government established the independent review of the regulation of legal services, now being chaired by Esther Roberton. We believe this offers a real opportunity to develop a consensus on what reforms are required and how they can be effectively delivered.

The complaints system: We note the ultimate aim of both petitions is to urge the Scottish Parliament and Scottish Government to review complaints about providers of legal services in Scotland. We share the petitioners’ concerns and frustration in relation to the complex and unwieldy complaints process that currently exists from the existing legislation.

The introduction of the Legal Profession and Legal Aid (Scotland) Act 2007 created the Scottish Legal Complaints Commission (SLCC) which opened on 1 October 2008. The SLCC is a complaints handling body which operates independently of the Law Society and Scottish Government. It has important oversight powers in relation to the handling of conduct complaints by the legal professional bodies, including the power of audit in addition to other consumer protection matters. Under the provisions of the 2007 Act, the Law Society retains the responsibility for managing and investigating complaints relating to the conduct of Scottish solicitors.

We regularly engage with the SLCC and enjoy a close working relationship of mutual respect and recognition. We discuss shared matters of concern and ideas for improving the complaints process to the benefit of complainants and the legal profession. We are frequently in discussions with the SLCC and other stakeholders with regard to the various challenges which the 2007 Act raises in relation to legal complaints, in particular the complex processes at the gateway / eligibility stage which result in unacceptable delays.

We believe the whole system for managing legal complaints needs to be changed to make the processes involved easier and quicker for the consumer. We are currently in discussions with the SLCC regarding an interim solution which could be delivered through secondary legislation. This offers the chance to improve the system by speeding up the eligibility stage of the complaints process until such time as more permanent changes can be made.

Given that there is no ability for a complainer to make a complaint on the SLCC’s handling of a service complaint, we strongly believe there should also be independent oversight of the SLCC, particularly as the SLCC perform the oversight functions of the Law Society of Scotland and Faculty of Advocates relating to conduct complaints.

We note that during the Committee’s meeting of 21 September 2017 a number of members referred to the Law Society’s campaign which resulted in many solicitors contacting their local MSPs to express concerns over the increase in the SLCC’s budget for 2017/18. During this campaign, we raised concerns that the SLCC’s budget could not be formally objected to by Ministers or by Parliament. This emphasises the challenge about the lack of effective independent oversight of the SLCC. I enclose a copy of the standard letter which formed the basis for many of the emails sent to MSPs earlier in the year. We would be happy to provide further background information or meet members of the Committee to further clarify the circumstances that led to the campaign and our position.

We have provided some further information on each petition below:

PE1660:  The petitioner argues that the existing appeals route against decisions by the SLCC, via the Court of Session, forms a barrier to those who wish to appeal.

We fully agree with this view. We recognise that the concept of pursuing legal action against a public body via the court can be a difficult and daunting process.

The requirement to obtain the leave of the Court of Session can put the appeal option out of reach for the majority of complainers, even where they may have fully justified grounds for appealing. This compares starkly to the situation regarding conduct complaints dealt with by the Law Society. Here, if a complainer is not happy with the way we have handled a complaint then they have the option of taking a ‘handling complaint’ to the SLCC. Whilst this does not amount to an appeal, the SLCC can recommend the matter be re-opened for further consideration if due process has not been followed or the decision lacks reasoning. Furthermore, a complainer can appeal a decision directly to the separate and independent Scottish Solicitors’ Discipline Tribunal (SSDT).

There is no equivalent process for those complaints dealt with by the SLCC. The only recourse is through seeking leave of the Court of Session. We believe there is a case for reviewing this and hope the work being undertaken by Esther Robertson and her review group will consider this point.

The petitioner also states that the Law Society ‘appears to desire no involvement, nor introduce quality control’ in the SLCC’s handling of complaints’. It is important to stress that the current legislative framework provides us no role of oversight of the SLCC, its processes or its decisions. Even where there may be occasions that we disagree with a service complaint decision of the SLCC, there are no special mechanisms which allow us to challenge or raise this other than the general provision which are available to the general public.

We also note that comment is made in the background notes on the process by which the SLCC lays reports before Parliament for information only. The provisions of the 2007 Act (Schedule 1 paragraph 16) provide that the SLCC must lay their annual report before Parliament at the end of each financial year. This is in addition to the laying before the Scottish Parliament of the SLCC budget by the end of April each year. These are laid for information only and Parliament has no statutory powers to comment on or amend these in any way. As I have already outlined, we do believe that greater oversight is needed of the SLCC and its performance, a fact which came into stark focus during the budget issues earlier this year.

PE1661: Central to this petition is the call for a wholly independent regulator of legal services in Scotland with no ties to the profession.

The Law Society of Scotland’s dual role of regulation and professional support has been successfully carried out for almost 70 years. This issue was considered in depth by the Scottish Government ahead of the 2010 Legal Services Act with a clear conclusion that the model of having a single professional body was right for Scotland.

At the core of any profession is a commitment to provide the best possible service to the consumer while recognising it has a responsibility to act in the public interest in all that it does. The regulation of the profession is the means by which the profession ensures these aspirations are met.

Our dual role is essential in ensuring that Scottish solicitors deliver the highest practical and ethical standards. To ensure we maintain a practical distinction between our two roles, our regulatory function is clearly separated and works independently of our professional support work. That regulatory activity is overseen by the Regulatory Committee in accordance with the provisions of the Legal Services (Scotland) Act 2010. This means it is an independent committee. The Law Society Council is not permitted to unduly interfere with the work of the Regulatory Committee, nor with the work of its sub- committees which are responsible for taking specific regulatory decisions. This is all clearly set out in legislation. To strengthen that independence, the Convener of the Regulatory Committee is chosen by the committee and must be a lay member. Our current convener Carole Ford comes from the teaching profession, bringing both an expertise in standards setting and enforcement but also a clear commitment to the public interest. The committee she chairs has an equal number of solicitor and non-­solicitor members – another element set out in legislation.

The concept of a single professional body, with both regulatory and professional support functions, is a model seen in other sectors in Scotland and also in other legal jurisdictions around the world.

Here in Scotland, we have the Institute of Chartered Accountants of Scotland (ICAS), the Royal Incorporation of Architects in Scotland (RIAS) and the Royal Institution of Chartered Surveyors (RICS). The teaching profession in Scotland recently moved from separate bodies into the single professional body that is the General Teaching Council. There is clear recognition across a number of professions that having a single professional body is the right approach, particularly given the size of Scotland.

Further afield, Law Societies and Bar Associations around the world have dual responsibility for regulation and professional support. These include the Law Society of Ireland, Law Societies in the provinces of Canada and states of Australia as well as bar associations in US states such as California, Florida and Texas. It provides a cost effective, practical, and coordinated professional approach which works in the interests of the consumer.

Nevertheless, we recognise the specific areas of concern which the petitioner highlights. The petitioner’s background information notes how the Law Society of Scotland cannot become involved in the decisions of the independent complaints handling body, the SLCC. If there is concern over the accountability of the existing independent complaints body, we do not agree that the way to correct this is to create a new regulatory body. Rather it would be better to create the kind of effective oversight of the SLCC which I have described earlier, the kind of oversight which the Law Society faces from our own Regulatory Committee, the SLCC, the SSDT and the Courts.

The background notes also assert that over 600 complaints were dismissed as a result of the court ruling in Anderson Strathern vs. SLCC (CSIH 71XA16/15). As a result of the ruling, which affected around 250 complaints already in the system, the Court of Session has now made a further judgment on the way these cases should be dealt with . We are working with the SLCC to implement the judgment which centres on the way the SLCC have categorised complaints.

We have worked constructively and collaboratively with the Parliament and other organisations throughout the passage of the Acts of the Scottish Parliament referred to in the petition background notes. As a professional body which has a statutory duty to protect and further the interests of the public and consumers, we have put forward proposals which demonstrate our commitment to these values.

As I have noted, the Scottish Government appointed an independent group to review the provision and regulation of legal services in Scotland, chaired by Esther Roberton. The Committee may wish to consider contacting the review group regarding opportunities for the public, including the petitioners, to present their views on the complaints process for consideration.

Thank you again for the opportunity to respond to these petitions. If we can provide any further points of clarification or aid the Committee’s consideration of these petitions further, please contact our Legislative Change Executive.

The letter from the Scottish Solicitors Disciplinary Tribunal (SSDT) to the Public Petitions Committee:

PE1660/A PE1661/A  Scottish Solicitors’ Discipline Tribunal submission of 13 October 2017

Introduction: The Public Petitions Committee met on 21 September 2017 to discuss petitions PE1660 and PE1661. In short, these conjoined petitions call on Parliament to urge the Government to review and reform the system of legal complaints in Scotland by comparing it to the system in operation in England and Wales. The Committee determined to seek the views of various stakeholders including the Scottish Solicitors ’ Discipline Tribunal.

Current system: It may assist the Public Petitions Committee to understand the place of the Tribunal in the system of legal complaints. Complaints against solicitors in Scotland are channelled first through the Scottish Legal Complaints Commission (SLCC). The SLCC deals with matters of inadequate professional services itself. It refers conduct matters to the Law Society. The Law Society has powers to deal with unsatisfactory professional conduct itself. The Law Society may appoint a Fiscal to prosecute the most serious cases before the Scottish Solicitors’ Discipline Tribunal as professional misconduct. Individuals cannot make complaints direct to the Tribunal.

The Scottish Solicitors’ Discipline Tribunal: The Tribunal is an independent formal judicial body constituted under statute and subject to the appellate jurisdiction of the Court of Session. The Tribunal deals with complaints of professional misconduct, complaints that a solicitor has been convicted of an offence involving dishonesty or any other more serious criminal offence, appeals stemming from the Law Society’s determinations regarding unsatisfactory professional conduct, and applications for restoration to the roll of solicitors in Scotland. The Tribunal is made up of 12 solicitor and 12 non-solicitor members. At each hearing the Tribunal comprises two solicitor and two non-solicitor members. Hearings are generally held in public.

The sanctions which the Tribunal can impose are censure, fines of up to £10,000, restriction of a solicitor’s practising certificate, suspension, strike off or prohibition on restoration to the roll, and compensation of up to £5,000 for loss, inconvenience or distress if a Secondary Complainer has been directly affected by the misconduct. Every decision of the Tribunal is published in full subject to the terms of paragraph 14A of Schedule 4 to the Solicitors (Scotland) Act 1980. Occasionally publicity is deferred, for example, pending the conclusion of criminal proceedings.

The Tribunal’s mission statement is to ensure so far as possible that all cases brought before the Tribunal are dealt with in accordance with the legislative framework and the principles of natural justice, bearing in mind the importance of protecting the public from harm and maintaining public confidence in the legal profession. The Tribunal endeavours to deal with cases efficiently and expeditiously. The Tribunal has a duty to be independent, impartial and transparent.

The Tribunal is responsible for the most serious cases of misconduct relating to Scottish Solicitors. Consequently, it deals with far fewer cases than either the Law Society or the SLCC. In the year 1 November 2015 to 31 October 2016, the Tribunal met on 45 days to hear Complaints. 32 new Complaints were received during that year. The Tribunal made 22 findings of professional misconduct and one under section 53(1)(b). The Tribunal made four findings of not guilty and two were remitted to the Law Society to consider as unsatisfactory professional conduct.

PE1660 and PE1661: The Tribunal considers that the system of legal complaints in Scotland can be complicated, lengthy and expensive. To a limited extent, the procedure has been simplified following the Court of Session judgements in Anderson Strathern v SLCC [2016] CSIH 71 and Law Society v SLCC [2017] CSIH 36. However, there are still areas for improvement.

The Tribunal is currently participating in the Review of Regulation of Legal Services; its Chairman is a member of the Review. The remit of the Review is to make independent recommendations to reform and modernise the framework for the regulation of legal services and complaints handling. The Tribunal hopes that this would modernise and streamline complaints handling. The Review’s remit is to focus on the current regulatory framework and the complaints process. Its aims therefore directly cover Petition PE1660 which calls for a review of the operation of the SLCC with a view to making the process of legal complaints more transparent and independent. .

The Review also overlaps Petition PE1661 which calls for reform of the regulation of legal complaints. However, the author of PE1661 calls for this to be done by creating a new independent regulator of legal services with similar powers those held by the SRA, Legal Ombudsman, BSB and SDT in England and Wales. The Tribunal observes that the Scottish Solicitors Discipline Tribunal is the direct counterpart of the SDT in England and Wales. Similarly, the SLCC performs a broadly similar though not identical role to the Legal Ombudsman. The Law Society of Scotland’s Regulation Department performs comparable functions to the SRA. The Faculty of Advocates Disciplinary Tribunal and the Bar Standards Board also have related responsibilities. The role of these bodies in the complaints system is included in the current Review and the Review may make recommendations for changes in this.

Therefore, the Tribunal considers that the issues raised in Petitions PE1660 and PE1661 are being considered in the current Review which includes an examination of the legal complaints system in Scotland and an analysis of legal complaint handling in other jurisdictions. Perhaps it would be appropriate to await the recommendations of the current Review before there is detailed consideration of the issues raised in these Petitions.

LAWYERS REVIEW THEIR OWN REGULATION: Third attempt by SCottish Government at reforming biased system of solicitors self regulation.

The latest review of the way lawyers regulate themselves marks the third attempt at addressing problems created by Scotland’s pro-lawyer system of self regulation, where lawyers write the rules, and look after their own.

In 2001, the Scottish Parliament’s Justice 1 Committee, under the Convenership of Christine Grahame MSP, met to consider evidence in relation to calls to reform regulation of the legal profession.

The inquiry, gained by the late, widely respected MSP, Phil Gallie, heard evidence in relation to how complaints were investigated by the legal profession.

However, Mr Gallie was replaced by Lord James Douglas Hamilton, and the Committee eventually concluded not to amend how the Law Society regulated Scottish solicitors.

A second, more substantive attempt to reform regulation of the legal profession came about in 2006, with the Scottish Parliament’s then Justice 2 Committee taking on consideration of the proposed Legal Profession & Legal Aid (Scotland) Act, which received Royal Assent in 2007.

The LPLA Act led to the creation of the now widely derided Scottish Legal Complaints Commission – once touted as an ‘independent’ solution to handing complaints against solicitors and advocates.

A mere nine years after the creation of the SLCC in 2008, the badly run legal quango, often itself the subject of scandal, charges of incompetence and downright bias – has become as much a threat to consumer protection as the Law Society itself was in the days when complaints were handled at the Law Society’s former HQ in Drumsheugh Gardens, Edinburgh.

Regulating the legal profession: Usual suspects selected by legal profession to carry out independent review on regulation of solicitors:

The independent review of the regulation of legal services in Scotland is expected to consult widely with stakeholders and report to Scottish ministers by the end of 2018.

The independent chair of the review is Esther Roberton, current chair of NHS 24. Ms Roberton has extensive senior leadership experience in the NHS and other areas of public life.  She is also currently a board member of the Scottish Ambulance Service (2014-18).  She was chair of SACRO (2010-2014) and until recently also sat on the Crown Office and Procurator Fiscal Service Audit and Risk Committee (COPFS ARC).

The review panel have confirmed their participation as follows:

•      Christine McLintock – immediate past president Law Society of Scotland
•      Alistair Morris – chief executive of the management board, Pagan Osborne (Law Society of Scotland)
•      Laura Dunlop QC – Hastie Stables (Faculty of Advocates)
•      Derek Ogg QC – MacKinnon Advocates (Faculty of Advocates)
•      Neil Stevenson – chief executive of the Scottish Legal Complaints Commission
•      Nicholas Whyte – chair of Scottish Solicitors’ Discipline Tribunal
•      Ray Macfarlane –  chair of the Scottish Legal Aid Board
•      Jim Martin – outgoing Scottish Public Services Ombudsman
•      Dr Dame Denise Coia – chair of Healthcare Improvement Scotland
•      Prof Lorne Crerar – chairman, Harper Macleod LLP
•     Prof Russel Griggs – chair of the Scottish Government’s Independent Regulatory Review Group
•      Trisha McAuley OBE – independent consumer expert

 

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