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Consumer Focus Scotland supports publication of solicitors complaints outcomes as law regulator SLCC ‘launders’ survey data out of FOI reach

Consumer Focus Scotland logoConsumer Focus Scotland support publication of complaints against Scottish solicitors. OUTCOMES of complaints against Scottish solicitors should be published, says Glasgow based consumer protection body Consumer Focus Scotland in response to a new study being undertaken by the Scottish Legal Complaints Commission (SLCC) of law firms’ complaints handling, reported by Diary of Injustice at the beginning of May, Consumers ‘locked out of debate’ as Scottish Legal Complaints Commission carries out yet more research on how solicitors handle complaints

The SLCC’s latest study which is seeking disclosure of information from individual law firms on how solicitors deal with complaints has drawn sharp criticism from the legal profession itself and provoked calls by lawyers lobby groups to boycott the survey after fears were raised that actual complaints data would end up being published by the media as a result of Freedom of Information requests to the SLCC.

SLCCLawyer’s so-called ‘independent’ regulator said it would avoid Freedom of Information laws by stashing data out of reach of media. Proving the SLCC has little interest in public opinion or confidence in it’s alleged role as an ‘independent’ regulator of solicitors, the law complaints quango responded to lawyers concerns by saying they would dodge Freedom of Information legislation by refusing to look at the actual complaints data gathered up by research company TNS Research International TNS-BMRB who are under contract to carry out the survey. The FOI dodge was reported by Diary of Injustice earlier in the month, here : Law regulator SLCC responds to lawyers call to boycott complaints research : ‘We will AVOID Freedom of Information by stashing data with researchers’

Responding to questions over the SLCC’s latest complaints survey which effectively shuts out consumers, a spokesperson for Consumer Focus Scotland said : We are pleased that the SLCC is undertaking research to improve its knowledge of the ways in which firms of solicitors deal with complaints. Ideally, consumer complaints about legal services should be dealt with quickly and effectively at a local level, by the business or professional involved, so far as possible. Many complaints can be resolved by way of an apology or informal agreement at this stage, and only where local resolution fails, should the complaint then go to a higher complaints handling body.”

The spokesperson continued : “We know consumers find it important to see complaints data so wider consideration of how this might be best achieved for legal services in Scotland would be helpful. The SLCC currently produces some complaints data within their annual report. This includes information on the number of complaints it received, the areas of law to which these relate and the stage of the SLCC’s process at which these complaints were resolved.”

“In its ‘Complaints about solicitors’ research, the Scottish Consumer Council, one of our predecessor bodies recommended that performance targets for each stage of the complaints process be published. Case study examples are published routinely by ombudsmen in the public sector, and used to be published by the Scottish Legal Services Ombudsman in its annual report. In 2010, a survey of our consumer network of volunteers to inform the Scottish Public Services Ombudsman’s model complaints handling process found that the publication of the outcomes of complaints was a particularly important principle for these consumers”

Consumer Focus Scotland in their previous incarnation as the Scottish Consumer Council conducted several studies & investigations into the notorious difficulties encountered by members of the public who are forced by circumstances to file complaints about their solicitors to the self regulating Law Society of Scotland and ‘independent’ Scottish Legal Complaints Commission. In what is now well over two decades of surveys & investigations by consumer groups & bodies into the complaints processes of Scotland’s legal profession, very little has changed from the 1999 SCC report “Complaints About Solicitors”, with most clients encountering a significant anti-consumer prejudice when making complaints about their solicitors to the legal profession’s in-house closed shop regulators.

Scottish Consumer Council recommended independent regulation of legal profession in 1999. Writing in the Scotsman newspaper in September 1999, the Scottish Consumer Council’s Sarah O’Neill went some way to explaining the conclusions of the SCC’s “Complaints About Solicitors” report, going onto recommend the Scottish Parliament’s then Justice & Home Affairs Committee study the issue, saying : “The SCC report concluded that there must be an open debate about the merits of establishing an independent complaints-handling body. We therefore recommend that the Scottish Parliament should review the current procedure with a view to establishing an independent body to deal with complaints about solicitors in Scotland. We would encourage the Justice and Home Affairs Parliamentary Committee to find time to examine this issue and reach a balanced conclusion. The Scottish Executive has told us it has no plans at present to change the current system.”

Ms O’Neill went onto say : “We would not recommend a particular model for an independent complaints-handling body. The Scottish Parliament should carefully consider all possible options, having carried out a thorough review of the current system, before making any firm decisions. Whatever scheme is introduced, however, it is essential that it is seen to be transparent, fair and above all, independent.”

The Scottish Consumer Council’s 1999 report “Complaints About Solicitors” stated in its conclusion : “This report provides considerable evidence of consumer dissatisfaction with the way in which complaints against solicitors are presently handled in Scotland, both by solicitors and by the Law Society. We believe that there is an urgent need for both to adopt a more client-oriented approach to dealing with complaints. Solicitors must embrace the concept of client care, which would help to reduce complaints, while at the same time ensuring a better deal for clients. The Law Society’s procedure contains many major flaws, and we have suggested a number of ways in which these could be remedied. Were these changes to be carried out, this would go some way towards improving the lot of consumers who complain about solicitors.”

The SCC report continued : “However, such changes would not go far enough. It is essential that complaints are dealt with by a body which is seen to be independent and impartial. Those who complain must be able to feel that their complaint has been fairly dealt with. It is clear that the fundamental root of the problem from the consumer’s point of view is that the Law Society is seen as being on the side of the solicitor. The only effective solution to the problem is the establishment of an independent review body to deal with complaints against solicitors in Scotland”

An earlier research project commissioned by the SLCC in 2009 & carried out by the University of Manchester’s Law School in to the Law Society of Scotland’s Master Insurance Policy revealed clients had committed suicide because of the way they had been treated over claims made against negligent or corrupt solicitors. Diary of Injustice reported on the Master Policy research revelations here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society’s Master Policy which ‘allows solicitors to sleep at night’

However, the SLCC has steadfastly refused to monitor individual claims to the Master Policy in spite of being asked by members of the public to do so, and no detectable changes have been made to how the SLCC deals with complaints made against negligent solicitors.

The Scottish Legal Complaints Commission has not released any further statements on the progress of the survey or any response to criticisms it is avoiding Freedom of Information laws by refusing to look at complaints data gathered by it’s contract researchers.

Meanwhile in England & Wales, the Legal Ombudsman is pressing ahead with full identification of solicitors & law firms who fail their clients, reported by Diary of Injustice in April, here : Clients of Scots solicitors miss out on ‘right to know’ as UK Legal Ombudsman moves to name & shame ‘crooked lawyers’ in England & Wales

As of 1 April 2012 the Legal Ombudsman began collating names of lawyers and law firms subject to complaints resolved by an ombudsman’s decision. Any data collected will be made publicly available by the Legal Ombudsman at the end of July 2012 and then subsequently every quarter.

 

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Scots consumers to remain ‘in the dark’ over crooked lawyers complaints histories while English Legal Ombudsman publishes complaint data enabling safer choice of legal services south of the border

Legal Ombudsman The Legal Ombudsman move ahead with publication of complaints about the legal profession in England & Wales. SCOTS CONSUMERS officially now face a clear disadvantage in being able to choose a safe or trustworthy Scottish solicitor or law firm to represent their legal interests, after the Legal Ombudsman (LeO) for England & Wales began publishing preliminary details of complaints brought to its attention by clients who felt they had a raw deal from their legal representatives.

While the Law Society of Scotland & Scottish Legal Complaints Commission (SLCC) both appear intent on protecting the long term confidentiality & secrecy of the Scottish legal profession’s complaints data, thus ensuring Scottish consumers will not be able to find out their solicitors complaints histories, the move by the Legal Ombudsman south of the border is being seen as an important gesture towards increasing consumer knowledge of common failings of the legal profession typical of many complaints as well as encouraging a shake up in the quality of legal services on offer to the public south of the border.

The policy of publishing complaints data in England & Wales is ultimately intended to lead to actual naming & shaming of rogue law firms & solicitors who persistently provide poor services to consumers, an issue I reported on earlier in the month, here : Name & Shame : Complaints data on law firms to be published in England & Wales, Scots solicitors complaints history to remain secret, for now.

What Scots consumers wont see for a long time yet : Details published for the first time on the Legal Ombudsman’s website of common types of complaints or issues arising from difficult dealings with solicitors in England & Wales give examples such as :

On The Case with the Legal Ombudsman

Court out by costs :

We’ve made our first Ombudsman decision here at the Legal Ombudsman. Let’s have a look at the case…

The complainant, Ms X, was about to buy two properties in Europe when she discovered that the developers hadn’t built the homes to the required specification. She decided it was time to involve a lawyer and found one who was based overseas but regulated in the UK.

Given a costs estimate at the start, with one amount for initial advice and negotiations, and an additional figure if the case went to court, Ms X engaged the lawyer’s services.

When negotiations broke down with the vendors, Ms X was told that the court costs would be £2,500 more than she was originally advised. When she asked why, her lawyer told her that her case had generated more correspondence than usual. He explained that as that was likely to continue, the price had to rise.

Ms X hasn’t decided whether to pursue the matter in court, but has chosen to complain about the service her lawyer provided. She explained that she wouldn’t have employed him if she’d known the price would increase. Dissatisfied with his response to her complaint, Ms X turned to us for help to resolve it. She added that as well as the increase in costs for taking the case to court, she was also unhappy with the price charged for the work already carried out.

Our view was that the work originally agreed had been completed without unnecessary delay and the firm had acted reasonably. However, we also concluded that there could have been a better explanation of the court costs and how these could change over time.

Ms X wasn’t satisfied with the recommendation we made. She wanted more money back from her lawyer and asked us to refer the case for an Ombudsman’s decision. So that’s what we did.

The result was that our Ombudsman agreed with the recommendation originally made. We decided that the lawyer should pay Ms X £150 in recognition of the inconvenience caused by this inadequate costs information. The lawyer agreed to this and has assured us that the firm had started to issue client care letters as a result of our involvement.

Case one: home sweet home? :

Mr and Mrs A bought their house in 2005 – or so they thought. When they came to sell last year, they discovered that they didn’t actually own their home. The solicitor for the people who wanted to buy the house discovered that Mr and Mrs A’s names had never been transferred to the Land Registry documents. On the face of it, this looks like a serious oversight by the solicitor who managed the original purchase on their behalf.

Mr and Mrs A were not able to sort things out with their solicitor and so complained to us.

Case two: money matters :

Ms B is divorced now but has been left feeling dissatisfied with the service her lawyer provided at the time of the divorce. She had asked that the decree absolute should not be signed until all outstanding financial matters with her husband had been resolved. She realised that if it was signed before then, she’d be left in a sticky financial situation. When she was asked to sign the document herself, she did so believing her lawyer had followed her wishes. Unfortunately, as it turned out, a number of money matters had not been dealt with beforehand, as she had asked. So she is feeling let down by her lawyer and unhappy that they hadn’t made this clear.

Case three: where there’s a will… :

Mr C is the executor of his mum’s estate. The lawyer acting on his behalf had the task of selling his mother’s house and closing her two bank accounts. Mr C is also a beneficiary, so once these things are done, he will receive some money from the estate. A year down the line, and the lawyer has done nothing.. And Mr C hasn’t heard from him for two months, despite chasing him on several occasions.

Mr C hasn’t been able to resolve things with the lawyer himself and so brought his complaint to us.

Case four: just the job :

Ms D was sacked from her job, but had the right to appeal against the decision. So she instructed a lawyer to act on her behalf, but they missed the deadlines required for her case to be heard in court. This meant she couldn’t go ahead with her appeal at all. She complains that she’s been let down by the person she employed to help her.

Case five: a clean break :

Mr E contacted us to complain about the lawyer who had been dealing with his elderly mother’s case. She’d fallen badly and damaged her ankle while out shopping. The ‘no win, no fee’ solicitor involved has taken three years to conclude that the case is not worth pursuing. Mr E believes that this timescale is unacceptable and has left his mother very distressed. She was under the impression that the case was nearing conclusion. Had she been told about this sooner, we were told, she would have employed another lawyer to deal with her case.

Case six: rising damp :

Mr F bought a property in London six years ago, knowing that there were problems with damp. He asked his solicitor at the time to make it a condition of sale that the damp would be fixed. His solicitor said it was all fine and so Mr F went ahead with the purchase. When he came to sell, however, a survey carried out for a potential buyer found the problem was still there. It seems that the work had not been done after all. Now Mr F wants to sell up and is insisting that his solicitor pays to sort out the damp and refund the fees that have already been paid to him.

Case seven: lost in transition :

Ms G’s family has used the same solicitor for generations, looking after the deeds to her house and her will. She contacted the firm a couple of weeks ago as she wanted to make some changes to her will, only to be told that the documents had been lost. The original firm has merged with another one and now nobody at the new place is accepting responsibility for the loss.

As a result, Mrs G brought her complaint to us.

Case eight: stop rambling :

Mr and Mrs H are finding it hard to sell their home. They bought the house 10 years ago, but they say their solicitor failed to tell them about the public right of way that runs across the back of the house. This is putting potential buyers off. Mr and Mrs H say they wouldn’t have bought the house, or would have paid less, if they’d known that people had the right to walk through their garden. They didn’t know anything about this until they put their house on the market.

Their solicitor says he made the situation clear to them at the time, but the couple have brought their complaint to us.

Case nine: page turner :

Mr I is in prison. He has been asking his solicitor to forward a few items of personal property for the past two months, but has heard nothing back. These things are really important to Mr I – religious books that he needs to have with him while he’s in prison. All he wants is his belongings to be sent to him as soon as possible.

He has complained to us that something so straightforward really shouldn’t take so long.

Case ten: the French connection :

A complainant from France, who dealt with an English lawyer, bought a 1940s property. She decided to make some improvements to her new home, including changing all of the windows. She then received a letter from the local council telling her the property was listed and she’d need to put it back to its original condition. She’s annoyed because her lawyer had failed to mention the fact she was buying a listed building, and she’s now faced with the costs of putting the matter right.

Case eleven: trouble and strife :

One very distressed caller wants to complain about the solicitor who has been dealing with her acrimonious divorce. As part of the settlement, the marital home had to be sold. Her solicitor told her that she must be present with her husband when the valuation was carried out. She told him that she didn’t want to do this, explaining that there had been domestic violence in the relationship and she wouldn’t feel comfortable. Despite her protests, she told us he convinced her that she had to be there. The solicitor joined her for the valuation and her husband also turned up … with his new girlfriend. The trouble that followed meant the police had to be called and the complainant has told us she has been under a great deal of stress ever since. She wants action taken against her solicitor for the distress caused.

Case twelve: first case closed! :

A caller wants to complain about the lawyer dealing with his tribunal. The lawyer had taken it upon himself to adjourn the case on four separate occasions – without letting his client know. The latest hearing was scheduled for 29 October, and the lawyer wanted to delay that hearing until December. This was an adjournment too far for our caller, who told the lawyer he wanted his file back and money returned. He heard nothing back following his request. We called the solicitor involved and upon hearing that the Legal Ombudsman was involved, the lawyer agreed to return his client’s file and any money owed within the next three days.

While the complaints data now published by the LeO does not yet name actual solicitors or law firms, it is envisaged this will come sooner rather than later. The information will certainly carry much more weight in the public’s eyes if actual solicitors & law firms are identified, thus helping to avoid consumers hiring the same ‘crooked lawyers’ who have maligned other clients.

SLCC LAW SOCIETYLaw Society & SLCC much more anti-consumer than England’s LeO.In Scotland, the Law Society of Scotland, Scottish Legal Complaints Commission & Faculty of Advocates all refuse to publish complaints data naming law firms & the many solicitor ‘serial offenders’ or ‘crooked lawyers’ in Scotland’s legal profession. Currently, Scots consumers can only find out if a lawyer has had any findings made against them by visiting the consumer unfriendly Scottish Solicitors Discipline Tribunal website, where details of cases seem to indicate more often than not, ‘crooked lawyers’ who end up in front of the Tribunal even on the most serious of charges, remain in legal practice while clients affected by their actions receive little or no redress.

Consumer Focus Scotland logoConsumer Focus Scotland support publication of Scottish legal profession’s complaints data. However, while there is still no sign of any similar moves by the Scottish Legal Complaints Commission to name & shame Scotland’s many rogue solicitors & law firms, Consumer Focus Scotland have now come out in favour of publishing complaints data, a move which may well help many Scots consumers avoid going to solicitors & law firms who for now, are able to keep their complaints records & regulatory histories hidden from the public.

Gemma Crompton, Senior Policy Advocate (Legal Services) for Consumer Focus Scotland commenting on the matter said : “Publications of complaints data is a useful source of information for consumers. The SLCC currently produces some complaints data within their annual report. This includes information on the number of complaints received, the areas of law to which these relate and the stage of the SLCC’s process at which these complaints were resolved.”

Ms Crompton continued : “In its ‘Complaints about solicitors’ research, the Scottish Consumer Council, one of our predecessor bodies recommended that performance targets for each stage of the complaints process be published. Case study examples are published routinely by ombudsmen in the public sector, and used to be published by the Scottish Legal Services Ombudsman in its annual report. In 2010, a survey of our consumer network of volunteers to inform the Scottish Public Services Ombudsman’s model complaints handling process found that the publication of the outcomes of complaints was a particularly important principle for these consumers.”

Insiders at the SLCC who spoke on the issue earlier this week claimed the Scots law complaints quango has no intention to name & shame any of Scotland’s ‘crooked lawyers’ for fear of upsetting the Law Society of Scotland who certainly do not want anyone finding out their solicitor may be up to their necks in complaints about negligence, embezzlement or ripping off legal aid claims …

 

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Out of Focus : Consumer Focus Scotland’s “qualified support” for self regulation of lawyers halts Holyrood moves to scrap Solicitors Scotland Act 1980

Consumer Focus Scotland logoConsumer Focus Scotland’s support of self regulation closed Holyrood petition, say campaigners. A CLAIM by Consumer Focus Scotland that self regulation of lawyers “brings a number of benefits to consumers” along with a statement by the consumer organisation’s policy of ‘qualified support’ for the Law Society of Scotland’s model of self regulation of the legal profession, is today being blamed by campaigners for the failure earlier this week of a public petition which called for repeal of thirty year old legislation which continues to allow Scottish lawyers to investigate themselves while consumers in England & Wales now have fully independent regulation of legal services via the Legal Ombudsman.

The consumer organisation was also criticised by a solicitor for its apparent lack of understanding of how the Law Society’s Council operates behind closed doors, where Consumer Focus’ expectations that yet another, to-be-announced Law Society run Committee with ‘equal lay membership’ will resolve many of the concerns highlighted in the now closed petition.

Petition PE1388, which called for the repeal of the Solicitors (Scotland) Act 1980 was briefly heard at the Scottish Parliament’s Public Petitions Committee on Tuesday of this week. However, with all respondents to the committee, the Scottish Government (pdf), Law Society of Scotland (pdf) & Consumer Focus Scotland (pdf) failing to support the petition, it was left to one committee member, Robin Harper MSP to call for it’s closure, citing the highly controversial policy shift by Consumer Focus Scotland as one of the chief reasons the committee should not consider the petition any further.

Consumer Focus Scotland’s support for self regulation ‘played key role’ as Robin Harper MSP calls for closure of Petition PE1388 during Tuesday’s committee hearing (Click image to view video footage)

Members of the Petitions Committee were asked by its convener, Rhona Brankin MSP for their views on the petition, resulting in Robin Harper calling for the petition to be closed. Mr Harper said : “Happy to close it under Rule 15.7 Convener, the Scottish Government has indicated it’s got no plans to repeal the Solicitors’ (Scotland) Act 1980, it responded to the question raised about the resignation of John McGovern, the repeal of the act is not supported by the Law Society of Scotland and Consumer Focus has a qualified support for self regulation on the grounds it does bring certain benefits to consumers.”

As I reported in early February, Consumer Focus Scotland refused to support the petition calling for repeal of legislation which allows solicitors to regulate & investigate themselves. Consumer Focus’ response came after I reported on the Scottish Government’s refusal to repeal the 1980 Act and the Law Society of Scotland’s warning to the Petitions Committee over the petition which I reported on here : Law Society ‘warns’ Scottish Parliament : Solicitors (Scotland) Act 1980 ‘should not be repealed’ by msps or Scottish Government

Consumer Focus Scotland’s response (pdf) to the Petitions Committee, as briefly referred to Mr Harper during Tuesday’s meeting at Holyrood stated : While it is clear there is the potential for conflict between the representative and regulatory functions of the Society, we believe that self-regulation brings a number of benefits to consumers. These include : (i)The regulatory system will be tailor made for the needs and problems of that particular sector, and will reflect inside knowledge about the realities of that sector, (ii)The benchmarking of best practice over and above the basic minimum requirements & (iii)Self-regulation is quicker and less costly to put in place (and adapt to changing needs) than legislation.”

“However, our support of self-regulation by the legal profession (other than for investigation of complaints) is qualified. The SCC produced a good practice guide on effective self-regulation, which made clear that one of the key principles of a credible self-regulatory scheme is independent representation on its governing body.”

Consumer Focus Scotland’s response to the Petitions Committee also talked about the establishment under the Legal Services (Scotland) Act 2010 of a regulatory committee of the Law Society of Scotland with at least a 50% non-solicitor membership and non-solicitor convener, which in the quango’s view would give the Law Society the opportunity to demonstrate clearly that it is acting in the public interest in carrying out its regulatory functions.

Consumer Focus Scotland further stated : “The independence of the regulatory committee will be an important tool in ensuring public confidence in its regulatory functions and we were pleased that provisions were inserted into the 2010 Act to ensure that the Society’s Council must not interfere unduly in the regulatory committee’s business.”

“The provisions of the Solicitors (Scotland) Act 1980 (as amended), which set out the Society’s role in the regulation of solicitors, provide an important consumer protection. It is critical that there is a robust regulatory framework in place to protect consumers should things go wrong. While we have been critical in the past of the Society’s regulatory regime, we believe the changes being introduced by the 2010 Act should lead to increased public confidence, transparency and effectiveness in the regulatory process. This Act is not yet in force, however, and we believe it is important that an opportunity be given to demonstrate whether these changes do lead to such improvements.”

“For this reason we do not support the petition’s suggestion that the Scottish Government should repeal the Solicitors (Scotland) Act 1980 to end self-regulation of the legal profession. Should this restructuring of the Society’s governance arrangements and the application of the regulatory objectives not act to improve public confidence in its regulatory functions, however, we believe the dual regulatory and representative roles of the Society should be reviewed.”

One msp speaking to Diary of Injustice over the failure of Petition PE1388 branded Consumer Focus Scotland’s idea that a Law Society regulatory committee with a 50-50 lay member involvement will restore public confidence in regulation of the legal profession as “nonsense”.

He said : “I think Consumer Focus Scotland seem to have drifted off course from the widely held & clearly justifiable public perception that self regulation is not really an open or honest method of regulating any commercial or public service by any stretch of the imagination. For instance, would Consumer Focus Scotland claim the actions of various bankers were well regulated by their colleagues or the FSA in the light of the banking crisis and massive cuts to public services ?”

He continued : “Consumer Focus as the Scottish Consumer Council supported the introduction of the LPLA Bill which brought the Scottish Legal Complaints Commission in as an independent regulator. However we have recently learned there have been no prosecutions of solicitors under the 2007 LPLA Act and the SLCC which has the same proposed 50-50 lay member complement on its board is itself lacking public confidence. Why on earth would Consumer Focus Scotland believe the same arrangement at the Law Society could resolve the difficulties over regulation or complaints ? This is nonsense.”

There was further support today from a Glasgow solicitor who is keen to see reforms & amendments to the Solicitor’s (Scotland) Act 1980. However, he was severely critical of Consumer Focus Scotland for its apparently lack understanding of how the Law Society Council operates, particularly in the light of recent media attention & high profile resignations from the Law Society’s Council over backdoor dealings & censorship of some its own members views on everything from regulation to saving money from the legal aid budget.

He said : “The Consumer Focus plan that an equal membership solicitor-lay committee at the Law Society will solve the ills of complaints will not work and as far as there being no interference from the Law Society’s Council, well I think recent events are enough to show us the people at Consumer Focus have no idea how the Law Society Council functions or operates, which seems to be mostly behind the membership’s backs. I think its a bit airy fairy to suggest the Council wont intervene with a committee, don’t you ?”

He also called for those solicitors who have publicised their disagreements with the Law Society over issues such as regulation & membership requirements to work with consumer campaigners to return the issue to Holyrood

He continued : “I don’t think Holyrood can turn its back on this issue so easily, given msps have already intervened on the issue of regulation by way of the Legal Profession & Legal Aid Act. Perhaps there may be a greater chance of success if those within the legal profession who are allegedly disgruntled with the Law Society’s poor representation of its members interests and consumers or campaigners who share similar views over the Society’s responsibilities for regulation can come together to take this issue back to the Scottish Parliament after the elections in May.”

Mr William Burns, the petitioner who brought Petition PE1388 to the Scottish Parliament was scathing of the Petitions Committee’s consideration of the issues. He also revealed the Petitions Committee had refused to allow any oral evidence to be presented on the aims of the petition and public experiences with the Law Society’s control of self regulation of solicitors.

He said : “The result of the approximately 30-second hearing, coupled with the repeated refusal to allow us to give oral evidence before the Public Petitions Committee, confirmed of what I accused the nine members prior to the final hearing, that they ignored our abundance of written evidence in its entirety.”

He continued : “Prior to the decision being taken to close PE1388, I accused the committee members of being elected nobodies taking orders from unelected nobodies in the Scottish Government’s legal division; legal collaborators with their comrades in the Law Society. The PPC confirmed this by not denying the accusation, before rushing their decision through on a fast track to close the petition.”

Readers should also note demise of another petition this week which the Law Society unofficially objected to, as Petition 1354 calling for Education of legal & consumer issues in Scottish schools was also closed by the Petitions Committee. Consumer Focus Scotland had rather heavily supported this petition as I reported earlier, HERE, however the Scottish Government and various education bodies said the idea was a non starter and with dwindling media coverage due to some over inflated egos, the petition fell flat on its face.

Petition PE1354 calling for education of legal & consumer issues in Scotland’s schools, closed also, apparently on Law Society orders (Click image to view video coverage)

It should be noted legal insiders have since claimed talks between the Scottish Government and the Law Society of Scotland have taken place on the issues raised in Petition 1354, as the Law Society is rumoured to be seeking to establish itself as the sole educator of legal issues in Scotland.

More worryingly, the petition was also rumoured to have been delayed by the Scottish Parliament, as its own lawyers were involved in an event held jointly with Law Society of Scotland at last year’s Festival of Politics held at Holyrood and chaired by Liz Campbell, the Law Society’s director of Education and Training. Those who participated at the event included the latest Law Society Vice President, Austin Lafferty, of Austin Lafferty Solicitors and Law Society Council Member, Gavin Henderson, from the Office of Scottish Parliamentary Counsel and Patrick Gaffney of the Schools Law Web.

Scottish Government insiders have since revealed the Law Society of Scotland is attempting to ensure that the Schools Law Web, which claims its aims to bring teachers and lawyers together in an effort to introduce young people to the legal system and those who work within it, will be the sole provider of education of legal services to young Scots. Parents and those concerned with education may well want to take a closer look at this arrangement as time goes on.

John Lamont MSP, the Scottish Conservatives Justice spokesman & Convener of the Scottish Parliament’s Justice Committee was asked if the Scottish Conservatives have plans to further raise the issue of teaching consumer & legal issues in Scottish schools, given these subjects are apparently taught in England & Wales.

He said : “Those at school could gain hugely from knowledge of consumers’ rights and the roles and responsibilities of the legal profession and as such the Scottish Conservatives have actively encouraged and continued to support the idea.”

He continued : “As there is no national curriculum in Scotland however, there is no obligation on schools to adopt the idea; but we will be doing all that we can to encourage them to adapt citizenship into their pupils’ studies.”

Consumer Focus Scotland were asked today for their comments on the failure of both petitions at the Scottish Parliament.

On the issue of Petition PE1388 and its closure, a spokesperson for Consumer Focus Scotland said : “As detailed in our submission to the Petitions Committee on Petition 1388, we consider that regulation of the legal profession can be split into two broad categories: the complaints handling functions, and other regulatory matters such as regulating admission to the profession and setting and maintaining professional standards.”

The spokesperson continued : “Our primary concern regarding regulation of the legal profession has been with the issue of complaints against the profession. The Scottish Consumer Council, one of Consumer Focus Scotland’s predecessor bodies, published research in 1999 on complaints about solicitors, which revealed a clear perception that the Society was not impartial in its handling of complaints, appearing to take the side of the solicitor. Following the publication of the research, the SCC campaigned for a number of years for the establishment of an independent body to deal with complaints against solicitors, to ensure that the public has confidence in the legal system. As detailed in our evidence on Petition PE1388, Consumer Focus Scotland’s preference would be for the Legal Services Complaints Commission to have responsibility for investigating all complaints against solicitors, not just service complaints.”

On the matter of Petition 1354 and its closure, a spokesperson for Consumer Focus Scotland gave more hope the issue would be pursued as part of its work on civil justice reform.

The spokesperson said : “Consumer Focus Scotland has a keen interest in the issue of pubic legal education. In our report ‘Making Civil Justice Work for Consumers,’ published in March 2010, we identified a public legal education strategy as being the first step in our four-step approach to removing barriers to access to justice. Most recently, the report of the Civil Justice Advisory Group, published by Consumer Focus Scotland in January 2011, made recommendations around public legal education and our consumer agenda for Scottish Parliament, published in February 2011 also highlights this as a key policy issue.

Their spokesperson continued : “While our work plan for 2011-12 is still to be agreed by the Consumer Focus Scotland Board, we expect that the issue of public legal education will be an issue we pursue as part of our work on civil justice next year.”

 

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Why a lawyer should NEVER be his own judge : The limits of self regulation in Scotland’s legal profession which places lawyers interests before clients

SCCScottish Consumer Council’s 1999 report echoes today’s client concerns of poor legal services & calls to scrap lawyers self regulation. A REPORT published by the former Scottish Consumer Council twelve years ago in 1999, “Complaints About Solicitors” concluded many clients who complained about their solicitor to the Law Society of Scotland felt the entire complaints procedure was biased, unfair, and discouraging. The report went onto recommend fully independent regulation of Scotland’s legal profession.

Most of those clients who managed to somehow survive the Law Society’s torturous complaints system, where some cases took years to be heard, feel to this very day the Law Society of Scotland is nothing short of a thoroughly corrupt self regulator which spares no expense to ensure lawyers, no matter the crime they have committed, retain their jobs, titles, wealth & privileged position while their clients are left blacklisted from access to justice, financially ruined, and in some reported cases involving claims against the Law Society’s Master Policy, ill or even dead.

The Scottish Consumer Council’s 1999 report “Complaints About Solicitors” stated in its conclusion : “This report provides considerable evidence of consumer dissatisfaction with the way in which complaints against solicitors are presently handled in Scotland, both by solicitors and by the Law Society. We believe that there is an urgent need for both to adopt a more client-oriented approach to dealing with complaints. Solicitors must embrace the concept of client care, which would help to reduce complaints, while at the same time ensuring a better deal for clients. The Law Society’s procedure contains many major flaws, and we have suggested a number of ways in which these could be remedied. Were these changes to be carried out, this would go some way towards improving the lot of consumers who complain about solicitors.”

The SCC report continued : “However, such changes would not go far enough. It is essential that complaints are dealt with by a body which is seen to be independent and impartial. Those who complain must be able to feel that their complaint has been fairly dealt with. It is clear that the fundamental root of the problem from the consumer’s point of view is that the Law Society is seen as being on the side of the solicitor. The only effective solution to the problem is the establishment of an independent review body to deal with complaints against solicitors in Scotland”

Today in 2011, the expectations & experiences of thousands of clients who complain to either the Law Society of Scotland or the less-than-independent Scottish Legal Complaints Commission remain unchanged, where most consumers who encounter difficulties with their solicitors view the Law Society & SLCC as little more than systems put in place by the legal profession to cover up complaints against their own colleagues, continuing the long held, if corrupt tradition that a lawyer is still his own judge.

Scottish Consumer Council recommended independent regulation of legal profession in 1999. Writing in the Scotsman newspaper in September 1999, the Scottish Consumer Council’s Sarah O’Neill went some way to explaining the conclusions of the SCC’s “Complaints About Solicitors” report, going onto recommend the Scottish Parliament’s then Justice & Home Affairs Committee study the issue, saying : “The SCC report concluded that there must be an open debate about the merits of establishing an independent complaints-handling body. We therefore recommend that the Scottish Parliament should review the current procedure with a view to establishing an independent body to deal with complaints about solicitors in Scotland. We would encourage the Justice and Home Affairs Parliamentary Committee to find time to examine this issue and reach a balanced conclusion. The Scottish Executive has told us it has no plans at present to change the current system.”

Ms O’Neill went onto say : “We would not recommend a particular model for an independent complaints-handling body. The Scottish Parliament should carefully consider all possible options, having carried out a thorough review of the current system, before making any firm decisions. Whatever scheme is introduced, however, it is essential that it is seen to be transparent, fair and above all, independent.”

Scotland on Sunday February 2001 - Legal Profession in the dock over complaints about self regulationThe newspaper Scotland on Sunday reported in 2001 there would be an investigation into regulation of the legal profession at Holyrood. Scots had to wait until 2001 before there was substantive movement at the Scottish Parliament to secure an inquiry into regulation of the legal profession, a move made possible only from the much appreciated efforts of the late Phil Gallie, then an MSP. Mr Gallie at the time sat on the Justice Committee and was eager to participate in the investigation, a prospect welcomed by many law reform campaigners, including particularly myself as Mr Gallie had written to me confirming the inquiry was to go ahead.

Regrettably however, the Scottish Conservative’s hierarchy & leadership were not too keen on this idea, so Mr Gallie was taken off his Shadow Justice portfolio and replaced by Lord James Douglas Hamilton in the Justice 1 Committee’s “Regulation of the Legal Profession” inquiry, which, under the Convenership of Christine Grahame MSP, mangled the issue so much, even forbidding public entry & testimony to some of the hearings, the only people to get a say in the matter were lawyers, lawyers, and more lawyers.

Scots had another wait until 2006, when the Justice 2 Committee of the Scottish Parliament was given the task of investigating changes to regulation of the legal profession with its consideration of the Legal Profession & Legal Aid (Scotland) Bill.

Would Granny Swear by the Law Society - The Herald June 5 2006Law Society Chief Executive Douglas Mill threatened legal action against complaints reform bill, also crossed swords with the SNP’s John Swinney. After a long year of bitter parliamentary hearings & debates, legal threats against the Scottish Executive & Scottish Parliament from the legal profession, public testimony & even evidence from now serving Government Ministers that the Law Society was a corrupt organisation, which regularly stage managed complaints & damages claims against ‘crooked lawyers’, the Scottish Parliament again mangled the issue, passing a butchered piece of legislation, the Legal Profession & Legal Aid (Scotland) Act 2007, which left the SNP to create the Scottish Legal Complaints Commission, a quango very far from independent, populated by lawyers, lawyers, more lawyers, a few ex lawyers, and a few ex senior Police Officers, with some quangocrats thrown in just for good measure.

The much-promoted-as-independent Scottish Legal Complaints Commission has, in its three years of existence, managed to uphold only one single complaint against an unknown solicitor or law firm, the remainder being handed back to the Law Society of Scotland for its own style of ‘crooked’ self regulation, you know, the one where the lawyer is his own judge …

So as things currently go, the position we remain in is that lawyers in Scotland are still their own judges. Clearly this is not what consumers of today’s world expect when they are forced into a position of having to make a complaint about their solicitor, not is it what was intended from all those numerous reports published by the Scottish Consumer Council, and even, dare I say, Consumer Focus Scotland over the many years which have passed.

The Scottish Consumer Council’s 1999 report “Complaints About Solicitors” stated in its conclusion : “This report provides considerable evidence of consumer dissatisfaction with the way in which complaints against solicitors are presently handled in Scotland, both by solicitors and by the Law Society. We believe that there is an urgent need for both to adopt a more client-oriented approach to dealing with complaints. Solicitors must embrace the concept of client care, which would help to reduce complaints, while at the same time ensuring a better deal for clients. The Law Society’s procedure contains many major flaws, and we have suggested a number of ways in which these could be remedied. Were these changes to be carried out, this would go some way towards improving the lot of consumers who complain about solicitors.”

The SCC continued : “However, such changes would not go far enough. It is essential that complaints are dealt with by a body which is seen to be independent and impartial. Those who complain must be able to feel that their complaint has been fairly dealt with. It is clear that the fundamental root of the problem from the consumer’s point of view is that the Law Society is seen as being on the side of the solicitor. The only effective solution to the problem is the establishment of an independent review body to deal with complaints against solicitors in Scotland”

The Scottish Consumer Council recommended in it’s 1999 report : “A Scottish Parliament should establish a review of the Law Society of Scotland’s complaints procedure, with a view to establishing an independent complaints body to deal with consumer complaints against solicitors in Scotland.”

The SCC went onto say : “We believe that such a review should be an urgent priority for a Scottish Parliament, in the interests of consumer protection. This review should involve an examination of best practice in complaints handling in other fields. All possible options, including statutory regulation and a non-statutory ‘arms-length’ scheme, should be carefully considered by the parliament.”

The Scottish Consumer Council’s 2001 report “The limits of self regulation in the legal profession” went on to state : “It has been the Scottish Consumer Council’s position for many years that complaints against solicitors in this country should be handled by an independent body, because this is necessary to ensure that there is public confidence in the impartiality of the complaints process.”

The 2001 report further stated : “The Law Society’s procedure continues to be run by solicitors, for solicitors. The existence of lay members on the complaints committees cannot by itself ensure independence. A large number of complaints do not even get as far as being considered by a committee because they are disposed of administratively by Law Society staff before then.”

Now, eleven years on, in spite of all which has passed at the Scottish Parliament, nothing has changed, mainly because the Law Society of Scotland has continued to intercept & interdict any effort to reform regulation of the legal profession, and of course, msps have allowed it.

Indeed, the Law Society of Scotland is as anti-client, & anti-consumer as ever, and their complaints system has not changed one bit. The Scottish Solicitors Discipline Tribunal, that alleged second tier of impartial prosecution of ‘crooked lawyers’ has also not changed. The SSDT’s habit of whitewashing even the worst cases of solicitor misconduct, negligence, poor service, or even criminality, has remained as constant as the numbers of ‘crooked lawyers’ getting a slap on the wrist.

Right at the heart of the Scots justice system, the Scottish Courts policy towards sidelining or discouraging cases involving the pursuit of ‘crooked’ or negligent lawyers has not changed, and to make matters worse, the Scottish Executive’s policy on regulation of the legal profession has actually regressed to the point it now advocates a stronger view for lawyers regulating themselves even more so than lawyers do. It is of course now well known, the ‘independent’ Scottish Legal Complaints Commission, the supposed new broom as a result of Holyrood’s intervention to clean up complaints against solicitors, has only managed to uphold one single complaint in its three years of existence, is not independent, not one bit.

However, what has stayed the same is the frequency of letters sent to msps by constituents who encounter difficulties with the legal profession, the Law Society of Scotland, and now, difficulties with the Scottish Legal Complaints Commission, yet it appears msps again do not want to give Scots a fully independent complaints system for legal services which now operates in other parts of the UK.

Clearly a new campaign is in need of being launched to end self regulation of the legal profession, and bring to an end the deadly era where lawyers are their own judges.

Those who are interested in campaigning on the issue of removing self regulation of the legal profession may wish to & should read some of the earlier Scottish Consumer Council reports on regulation of the legal profession, which can be viewed online or downloaded in pdf format at the following links :

The limits of self regulation in the legal profession (Scottish Consumer Council) 2001

Complaints Against Solicitors (Scottish Consumer Council) 1999

Getting the best from your solicitor (Scottish Consumer Council) 1994

I’m not happy with my solicitor (Scottish Consumer Council) 1986

 

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Consumer Focus Scotland refuse to support petition’s call to repeal ‘anti-consumer’ laws allowing lawyers to investigate complaints against themselves

Consumer Focus Scotland logoConsumer Focus Scotland’s response to Holyrood Petitions Committee gives qualified support for self regulation. IN a letter to the Scottish Parliament’s Petitions Committee, Consumer Focus Scotland have refused to support a public petition which calls for the scrapping of lawyers powers to investigate themselves.

The consumer body even went so far as to give a ‘qualified support’ to the Law Society of Scotland’s powers of self-regulation over complaints, powers which are backed up by the infamously anti-consumer Solicitors (Scotland) Act 1980, the Westminster enacted thirty year old legislation which allows Scottish solicitors to investigate & cover up complaints against their own colleagues.

While it is now clear the Law Society of Scotland retains its iron grip over self regulation of complaints with the apparent support from most ‘official quarters’ including the Scottish Government & even some consumer bodies, it is of note solicitors in England & Wales now face a more rigorous independent regulation in the form of the Legal Ombudsman.

Law Society of ScotlandLaw Society of Scotland’s interests conflict with public. While supporting the retention of self regulation of complaints against solicitors, Consumer Focus Scotland said in their letter to msps there were ‘tensions within the Law Society’s dual role of representing the public & the legal profession, stating that “while often the interests of the profession and the public may be the same, there will be times when they conflict”, the consumer body (which has been scheduled for closure by the Westminster coalition Government) told msps it does not support the aims of a public petition, Petition PE1388, which calls for repeal of the anti-consumer Solicitors (Scotland) Act 1980 and even went onto say, staggeringly, it felt “self-regulation brings a number of benefits to consumers”, despite most evidence pointing to the contrary.

Consumer Focus Scotland’s submission to the Petitions Committee in response to Petition PE1388 falls broadly into line with two earlier submissions to the Petitions Committee, one from the Law Society of Scotland, which I featured here : Law Society ‘warns’ Scottish Parliament : Solicitors (Scotland) Act 1980 ‘should not be repealed’ by msps or Scottish Government, and a statement from the Scottish Government who refuse to become involved in the aims of the petition, here : Solicitors (Scotland) Act 1980 : Scottish Government refuse to repeal Law Society’s self regulating powers of lawyers investigating themselves

The petition, Petition PE1388, originally filed as an e-petition at the Scottish Parliament by a Mr William Burns calls “on the Scottish Parliament to urge the Scottish Government to repeal the Solicitors (Scotland) Act 1980, end self-regulation, and remove the independence of the legal profession, bringing it onside with true democracy”.

I reported on events surrounding the petition in an earlier article, here : Law Society’s legislative powerbase ‘is anti-consumer’ as Holyrood to hear petition calling for repeal of the Solicitors (Scotland) Act 1980

Consumer Focus Scotland’s full response to the Petitions Committee concerning Petition PE1388, can be downloaded from the Scottish Parliament’s website, HERE (pdf) and is reprinted in full, below :

Consumer Focus Scotland welcomes the opportunity to submit evidence on this petition. Both Consumer Focus Scotland and the Scottish Consumer Council (SCC), one of our predecessor bodies, have had significant involvement over many years in the issue of the regulation of the legal profession. Following the passing of the Legal Services (Scotland) Act 2010, we are no longer actively working on this issue, however we are happy to provide evidence given our history of work in this area.

Self Regulation of the Legal Profession

Consumers who use solicitors do so at important and often stressful and difficult times in their lives. They place important transactions in the hands of their solicitors, and if things go wrong with that relationship it can have a devastating effect on client confidence. Where dissatisfaction does arise, consumers need to have no doubt about the impartiality of the regulatory system under which solicitors operate.

Complaints

Scotsman 8 January 1999 Independent watchdog for lawyers proposedThe Scottish Consumer Council proposed an independent watchdog for solicitors in 1999. 2011 and still no sign of any independence in legal complaints regulation. In 1999, the SCC published research into the experiences of those who had complained to the Law Society of Scotland (‘the Society’) about a solicitor. Half of those who responded believed that their complaint had not been handled fairly. The detailed responses revealed a clear perception that the Society was not impartial in its handling of complaints, appearing to take the side of the solicitor. Following the publication of the research, the SCC campaigned for a number of years for the establishment of an independent body to deal with complaints against solicitors, to ensure that the public has confidence in the legal system. It welcomed the establishment of the Scottish Legal Complaints Commission (‘the Commission’) by the Legal Profession and Legal Aid (Scotland) Act 2007.

While the Society retains its role in investigating conduct complaints, some of its previous practices which created the impression that the complaints process was weighted in favour of solicitors and as such had given SCC serious concern, have been changed and significantly improved. Nevertheless, our preference would be for the Commission to have responsibility for investigating all complaints against solicitors, not just service complaints. The distinction between the various types of complaint is not always clear, even to solicitors, and members of the public cannot be expected to distinguish between them. We have expressed concerns that unless all complaints are dealt with by the Commission, there will continue to be a lack of public confidence in the complaints system.

Other Regulatory Matters

Regulation of the legal profession does, of course, go beyond complaints handling and covers a wide range of work to promote and maintain high standards for solicitors and their clients such as the setting of standards of qualification, education and training. The petition suggests that self-regulation, and particularly the conflict between the Society protecting its members and acting in the public interest, is detrimental to the public interest. While it is clear there is the potential for conflict between the representative and regulatory functions of the Society, we believe that self-regulation brings a number of benefits to consumers. These include:

• The regulatory system will be tailor made for the needs and problems of that particular sector, and will reflect inside knowledge about the realities of that sector

• The benchmarking of best practice over and above the basic minimum requirements

• Self-regulation is quicker and less costly to put in place (and adapt to changing needs) than legislation.

However, our support of self-regulation by the legal profession (other than for investigation of complaints) is qualified. The SCC produced a good practice guide on effective self-regulation, which made clear that one of the key principles of a credible self-regulatory scheme is independent representation on its governing body.

We have regularly expressed concerns about the current levels of independent representation on the Society’s Council, believing these arrangements to reflect the interests of a membership body, rather than a regulator in the public interest. Our position throughout the passage of the Legal Services (Scotland) Act 2010 (‘the 2010 Act’) was that if the legal profession is to remain self-regulating (or co-regulating), a change of governance structure (of both the Society and the Faculty of Advocates ) is required to instil public confidence in the regulatory functions of these bodies.

We therefore fully supported the establishment within the 2010 Act of a regulatory committee of the Law Society of Scotland, with at least 50 per cent non-solicitor membership and a non-solicitor convenor. We believe creating a regulatory committee with significant non-solicitor involvement gives the Society the opportunity to demonstrate clearly that it is acting in the public interest in carrying out its regulatory functions. We would also note that the 2010 Act requires the Society, so far as practicable when exercising its regulatory functions, to act in a way which is compatible with the regulatory objectives outlined in the Act. These include protecting and promoting the interests of consumers and the public interest generally and promoting access to justice.

The independence of the regulatory committee will be an important tool in ensuring public confidence in its regulatory functions and we were pleased that provisions were inserted into the 2010 Act to ensure that the Society’s Council must not interfere unduly in the regulatory committee’s business.

The provisions of the Solicitors (Scotland) Act 1980 (as amended), which set out the Society’s role in the regulation of solicitors, provide an important consumer protection. It is critical that there is a robust regulatory framework in place to protect consumers should things go wrong. While we have been critical in the past of the Society’s regulatory regime, we believe the changes being introduced by the 2010 Act should lead to increased public confidence, transparency and effectiveness in the regulatory process. This Act is not yet in force, however, and we believe it is important that an opportunity be given to demonstrate whether these changes do lead to such improvements.

For this reason we do not support the petition’s suggestion that the Scottish Government should repeal the Solicitors (Scotland) Act 1980 to end self-regulation of the legal profession. Should this restructuring of the Society’s governance arrangements and the application of the regulatory objectives not act to improve public confidence in its regulatory functions, however, we believe the dual regulatory and representative roles of the Society should be reviewed.

Tensions in the Law Society’s Dual Roles

We do, however, have some sympathies with the issues raised by the petition, particularly in relation to the tensions that may result from the Society’s duties in relation to the profession and the public. As detailed within the petition, by virtue of section 1(2)(b) of the Solicitors (Scotland) Act 1980, the Society has a duty to promote the interests of the solicitors’ profession in Scotland, and to promote the interests of the public in relation to that profession. While often the interests of the profession and the public may be the same, there will be times when they conflict.

While the changes to the membership of the regulatory committee outlined above will enable the Society to more clearly demonstrate it is acting in the public interest, we believe there also requires to be significant non-solicitor involvement in the Society’s representative functions. In a press release issued by the Society in March 2010, it outlined examples of its ‘representative’ functions, including several which have a clear consumer or wider public interest.

Master Policy Report Suicides revealedLaw Society of Scotland’s Master Policy was revealed in an independent report to have caused consumers to have committed suicide. One such example is tendering and securing the Master Policy for professional indemnity insurance. The Master Policy provides clients with protection from losses caused by their solicitor’s negligence and therefore is of clear consumer interest. We would also see the representative functions of preparing best practice guidelines and the ‘Find a Solicitor’ tool as key means of the Society fulfilling its statutory duty to promote the public interest in relation to the profession.

We therefore think it is entirely appropriate that the representative functions of the Society be undertaken by a Council which contains non-solicitor membership. We have for a long time maintained that it is a considerable drawback for a professional organisation with a statutory responsibility to promote the public interest that its decision making body has no non-solicitors among its membership.

While section 132 of the 2010 requires the Society to make provision for the appointment of non-solicitor members to the Council, sections of the original Bill which would have given Scottish Ministers the ability to make regulations specifying the number of non-solicitor members on the Society’s Council were removed at Stage 2, following concerns that this could be perceived as compromising the independence of the profession. While we expressed some concern about removing these provisions, we acknowledged that the Society has publicly committed to appointing 20% of its Council membership as non-solicitors.

Although we would prefer this figure to be 50%, in keeping with the provisions relating to the Society’s regulatory committee, this represents a significant improvement on the current position. We believe these are important and necessary changes in order for the public to have confidence in the Society’s role of promoting the public interest. It is our understanding, however, that any proposed changes to the Society’s constitution are subject to approval by the profession at the Society’s Annual General Meeting in March 2011. Should the profession not accept a minimum of 20 per cent non-solicitor membership on the Society’s Council, we believe there would be merit in the Scottish Parliament revisiting this issue.

Readers can find out more about the Law Society of Scotland’s Master Policy and the havoc it has caused for consumers, to the point some have committed suicide, in an earlier article here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society’s Master Policy which ‘allows solicitors to sleep at night’

An excerpt of the earlier article reported :

Page 8 - Consumer Focus Scotland refused cooperation from Law SocietySuicides, illness, family breakdown, loss of homes, loss of livelihood were all identified by interviewees as being directly associated with members of the public’s dealings with the Law Society & Master Policy. During the research team’s investigation of claims against the Master Policy, team members were told of suicides which had occurred due to the way in which clients of crooked lawyers had been treated by the Law Society of Scotland and the insurers who operate the Master Policy protection scheme for solicitors against negligence claims. Quoting the report : “Several claimants said that they had been diagnosed with depression; that they had high blood pressure; and several had their marriages fail due to their claim. Some had lost a lot of money, their homes, and we were told that one party litigant had committed suicide.”

Further excerpts from the Manchester University report into the Law Society’s Master Policy & Guarantee Fund show the intolerable strain clients who attempt to claim against their ‘crooked’ solicitor have to endure : Claimants “described being intimidated, being forced to settle rather than try to run a hearing without legal support, and all felt that their claims’ outcomes were not fair. Some claimants felt that they should have received more support, and that this lack was further evidence of actors within the legal system being “against” Master Policy claimants. Judges were described as being “former solicitors”, members of the Law Society – and thus, against claimants. Some described judges and other judicial officers as being very hostile to party litigants.” yet it appears msps do not care, as long as they are able to sleep as easily at night as their Law Society sponsors.

A campaigner speaking to Diary of Injustice this morning said he felt Consumer Focus Scotland could have said more with regard to the way many people have been treated at the hands of the Law Society of Scotland’s complaints system, but he accepted there was little appetite among msps on the Petitions Committee to do anything for victims of the legal profession.

He said : “MSPs are just not interested in doing anything positive for consumers of legal services in Scotland on the complaints & regulation front. They either fear or are already bought off by the Law Society of Scotland’s lobbying powers and the many other arms of the legal profession which they prefer to keep as friends rather than actually do something for us ordinary folks.”

A Holyrood insider speaking to Diary of Injustice this afternoon indicated there was little prospect of the Petitions Committee or the Scottish Parliament ever considering a repeal of the Solicitors (Scotland) Act 1980.

He said : “Petitions which concern the Law Society of Scotland and the legal profession’s handling of complaints are effectively binned before they are even opened by the PPC for consideration.”

Citizens Advice Scotland are yet to send in their requested response to the Petitions Committee.

 

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Enterprise Minister & Scottish Government’s working group on UK reform of consumer & enforcement bodies ‘could help save’ Consumer Focus Scotland

Consumer Focus Scotland logoScottish Government’s working group will consider implications of Westminster decision to kill off Consumer Focus Scotland. FURTHER enquiries by Diary of Injustice regarding the largely anti-consumer decision by the Westminster coalition Government to axe Consumer Focus & Consumer Focus Scotland have revealed the Scottish Government have formed a ‘working group’ to consider the implications on consumer protection in Scotland and develop practical outline variations which optimise future arrangements for Scots consumers, who face a raw deal from the UK Government’s decision to scrap Scotland’s key consumer champion, Consumer Focus Scotland.

Details passed to Diary of Injustice last week revealed the Scottish Government established the working group on the UK reform of consumer and enforcement bodies in November 2010. This group is chaired by a member of the Scottish Government Business Directorate, with representatives from Consumer Focus Scotland, Citizen’s Advice Scotland, OFT, COSLA, the Trading Standards Institute, the Society of Chief Officers of Trading Standards in Scotland, and representatives of relevant Scottish Government departments.

The remit of the working group is to:

· Consider the feasibility of implementing the proposed UK model in Scotland, with a focus on accountability, capacity, and resources;

· Develop practical outline variations which optimise future arrangements for consumers in Scotland, encompassing links to relevant devolved policy and services, and specifically the scope for devolution of consumer advocacy and/or enforcement policy and delivery, and/or resource transfers;

· Support all relevant organisations to individually and collectively influence the Scottish content of UK consultation and develop an informed view ahead of that UK consultation.

The Group is due to report to Scottish Ministers by the end of January 2011. Scottish Ministers will then take a view informed by the work of the working group, on what arrangement would best serve the interest of consumers in Scotland.

A Scottish Government spokesman commenting on the working group’s aims, said: “The working group was formed to consider the implications for Scotland of the UK Government’s proposed reform of consumer and enforcement bodies, including the abolition of the Office of Fair Trading and Consumer Focus Scotland. It includes representation from various stakeholders, including the afore-mentioned bodies, the Scottish Government, trading standards professional bodies and the Citizen’s Advice Bureau.

“The working group is examining distinctive Scottish issues associated with implanting the UK proposals and possible variations including the scope for further devolution. The group has been liaising closely with the relevant Westminster department, the Department for Business, Innovation and Skills rather than the Scotland Office. The groups findings will in due course be shared with the UK Government (both BIS and the Scotland Office) to inform wider consultation.”

sologo_blueScotland Office were not invited to be part of working group. While the working group is taking into account the views of some of the consumer bodies facing the axe, and others who will be left to pick up the pieces after Consumer Focus is axed, it transpires not all have been made welcome to the working group, as was revealed during Westminster questions where, in response to a question from Glasgow North MP Ann McKechin, the Scottish Secretary of State Michael Moore revealed his department, the Scotland Office “has not been invited to be represented on the Scottish Government working group”, promoting some to wonder why the Scottish Government were not seeking more allies in the fight to keep Consumer Focus Scotland from being closed, given the organisation has played a key role in many reforms in Scotland, particularly those relating to justice.

ann_mckechinAnn McKechin MP, Glasgow North (Labour). Commenting on the Scottish Government’s decision to shut out the Scotland Department in London, Ann McKechin M.P. Shadow Secretary of State for Scotland said : I am also deeply concerned about the proposed abolition of these bodies and the levels of resources that will be available to any successor bodies. From my previous experience as a Scotland Office Minister, I consider it extraordinary that the Scottish Government should have set up a working group on an area of reserved policy without any direct representation from a Whitehall department even at official level. This is a major change in consumer protection and the UK Government must take a proper part in ensuring that consumers’ interests north of the border are adequately covered. It would appear that the alleged “respect agenda” between the two administration is wearing thin.”

Earlier this week, further developments on the issue occurred at the Scottish Parliament, where in response to a question from Peter Peacock MSP, the Minister for Enterprise, Energy & Tourism, Jim Mather indicated he was expecting the working group’s report in February.

However, it was then revealed by Mr Peacock in his response that “the UK Government is entirely open to there being an outcome in Scotland that is different from that for the rest of the UK”, a position which now raises the possibility of saving of Consumer Focus Scotland, if of course, the Scottish Government are minded, or motivated to do so.

An additional, and if I may say so, excellent suggestion by Kilmarnock and Loudoun MSP Willie Coffey (SNP), “that the Minister take up with his UK counterparts the need for manufacturers to publish details of known faults with their products” brought a reply from Mr Mather he would do as the members ask.

Mr Coffey’s suggestion could well be applied to many areas of commerce & business, particularly of course, legal services, where law firms should be required to publish the regulatory records of their solicitors, to enable consumers to make an informed decision as to whether any particular solicitor or law firm is the right one to represent their legal interests.

The Scottish Parliament’s website reported the session as follows :

UK Consumer Protection Bodies (Reform)

Peter Peacock (Highlands and Islands) (Lab):

5. To ask the Scottish Executive what action it is taking and what progress is being made in examining the United Kingdom Government’s proposals for the reform of UK consumer protection bodies; what devolved implications there are for Scotland and its consumers, and when it will report its findings on the proposals. (S3O-12661)

The Minister for Enterprise, Energy and Tourism (Jim Mather): “Those are reserved matters, as the member will know. Although the UK Government proposals will have implications for Scotland, the policy detail is not yet fully defined. We invited key Scottish stakeholders to form a working group to consider how we might optimise future arrangements in Scotland and influence decisions in Whitehall. I expect the group’s report in February.”

Peter Peacock: “I am grateful to the minister with regard to that plan, and I am grateful for the work that he indicates is being done. I understand that the UK Government is entirely open to there being an outcome in Scotland that is different from that for the rest of the UK. I urge the minister to make early proposals to the UK Government to influence its forthcoming consultation on the future of Consumer Focus Scotland and to work with other parties across the Parliament to try to secure a consensus on the various options and build on the common ground that I believe will exist between members on the issue.”

Jim Mather: “That was a constructive contribution from the member, and my answer is yes to all of that. I reinforce the message that we are maintaining close contact with the UK Government. We view this as an opportunity to create a model that provides a best solution for Scotland. The more voices that are involved in that, the better.”

Willie Coffey (Kilmarnock and Loudoun) (SNP): “Will the minister take up with his UK counterparts the need for manufacturers to publish details of known faults with their products and for consumer organisations to take into account the variety of ways in which customers now choose to complain about products and services, notably via internet postings?”

Jim Mather: “We are entering a new era, following the financial services crash, in which people are looking to manufacturers and all businesses to be much more aligned with customers and their wellbeing. I will make a point of doing as the member asks.”

Given the chance of saving Consumer Focus Scotland for Scots, I would urge readers to write to their own MSPs and the Scottish Government, especially the Minister responsible, Mr Mather, making your feelings on the issue known and supporting the retention of Consumer Focus Scotland, which has done so much for Scots consumers in many areas including justice, over many years.

 

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Civil Justice Advisory Group call for radical reform of Scotland’s civil justice system, says people should be at the heart of Scottish civil justice

Consumer Focus Scotland logoConsumer Focus Scotland’s Civil Justice Advisory group publishes its report on civil justice reform. SCOTLAND’s “Victorian” civil justice system came in for yet more criticism today as the Civil Justice Advisory Group, reconvened in January 2010 by Consumer Focus Scotland under the chairmanship of Lord Coulsfield with a remit to consider the proposals of the Scottish Civil Courts Review, led by the Lord Justice Clerk, Lord Gill, published its report and called for a radical rethink on how the civil justice system in Scotland can be reformed to make it more fit for purpose & user friendly.

In today’s report the Civil Justice Advisory Group proposes that the focus should be on creating a civil justice system designed around the people who use it, addressing the various needs that users have at each stage in resolving their disputes, to ensure that these are resolved in the most effective way as early as possible.

“Ensuring effective access to appropriate and affordable dispute resolution”, the Final Report of the Civil Justice Advisory Group (pdf), published by Consumer Focus Scotland, makes a series of recommendations that include:

* The development of a ‘triage’ approach to civil justice problems, aiming to ensure that users are directed to the most appropriate pathway for the resolution of their problem.

* The creation of a web-based system bringing together information on rights, responsibilities, sources of help, and advice and options for dispute resolution.

* Funding should be made available to pilot more proactive public legal education initiatives to build legal capability amongst particular groups.

* The introduction of new court rules to encourage, but not compel, parties to seek to resolve their dispute by mediation or another form of alternative dispute resolution, prior to going to court.

* A mediation scheme should be available which could be accessed before a court action is raised, as well as being available to the court.

* The need for a clear separation between civil and criminal business in the third-tier of civil jurisdiction proposed by the Gill review.

* The third-tier should operate within a simplified process, with plain English, user-friendly rules, and clear, simple forms. Efforts should also be made to ensure the culture of the third-tier is not intimidating for litigants.

* The establishment of a specialist jurisdiction to deal with housing cases.

* The Scottish Government to review the way in which family cases are dealt with, including the rules and procedures which should apply.

* National roll out of in court advice services, although these should not necessarily be based within individual courts.

The report also calls on the Scottish Government to ensure that the full range of relevant interests should be given the opportunity to provide sufficient input to future civil justice reform. It will now be submitted to the Scottish Government to support its implementation of the Gill review proposals on civil justice.

Lord Coulsfield said the Group’s aim is to make the civil legal process more effective and efficient as well as easier for its users: “I hope that we have made suggestions which will contribute to the creation of a system which will encourage the resolution of disputes by agreement wherever possible, but also provide for an unintimidating and accessible and efficient court procedure where agreement cannot be reached.”

Lord Coulsfield continued : “Our intention was, through taking a broader look at the experience of people who need the help of the civil justice system, to make recommendations that will spare those who do not need to go to court from having to do so, and reduce the stress for those who do.”

Welcoming the report, Scotland’s Minister for Community Safety, Fergus Ewing MSP, said the Group is putting forward an important set of options: “Scotland’s civil justice system must be open to all who need it and has to offer support that is neither too slow nor too intimidating for users.”

Mr Ewing continued : “I would like to thank the Civil Justice Advisory Group under Lord Coulsfield for their work. They have given us a series of very helpful recommendations for future reform, which we shall now consider as part of our approach to reforming the wider civil justice system.”

The Civil Justice Advisory Group was first established in 2004 by the Scottish Consumer Council, one of Consumer Focus Scotland’s predecessor organisations. It published its report Civil Justice in Scotland: A Case for Review? (available as a PDF by clicking here) in November 2005, and four of the six recommendations of this report were incorporated in the remit of the Scottish civil courts review. The Civil Justice Advisory Group was re-established in January 2010 to consider some of the key proposals of the Scottish civil courts review.

In addition to Lord Coulsfield who chairs the Group, its membership includes representatives from the Law Society of Scotland, Faculty of Advocates, Scottish Court Service, Consumer Focus Scotland, Citizens’ Advice Scotland, Scottish Legal Aid Board, Scottish Association of Law Centres, Scottish Mediation Network, Scottish Committee of the Administrative Justice and Tribunals Council, as well as Professor Alan Paterson from the University of Strathclyde.

The full report “Ensuring effective access to appropriate and affordable dispute resolution – The Final Report of the Civil Justice Advisory Group” can be downloaded HERE (pdf). A summary of the final report can be downloaded HERE (pdf).

I have previously reported on the Civil Justice Advisory Group’s consultation and its activities, HERE

As Consumer Focus have said today, people should be put first and at the heart of Scotland’s civil justice system, and no effort should be spared to ensure all Scots have access to justice, an access which comes as a right, at a reasonable cost which all can afford, and free of the obstructions of vested professional interests whose aims are more often than not to stifle or defeat the aims of justice and the individual’s access to justice out of financial motives, or protection of those who use the law as nothing more than a business model to control who among us gains access to the courts.

BACKGROUND TO CIVIL JUSTICE REFORM IN SCOTLAND

Lord Gill Lord Justice ClerkThe Lord Justice Clerk, Lord Gill, author of the Civil Courts Review. The Lord Justice Clerk, Lord Gill, in his speech to the Law Society of Scotland’s 60 year anniversary conference last year, reproduced in full here said : “The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society. It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost. Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice.”

Readers can find out more & download a copy of the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links :

My coverage of the Civil Courts Review from its publication to the present, and the pace of reforms to civil justice in Scotland can be found here : Civil Courts Review – The story so far.

 

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