Complaints against lawyers and legal firms in Scotland: consultation

Chapter 1: General

A. Background to the proposal to make changes to the legal complaints system in Scotland

The Scottish Government established an independent review of the regulation of legal services in 2017. That review was asked to make recommendations to Scottish Ministers on ways to reform and modernise the framework for the regulation of legal services and complaints handling in Scotland.

The chair of that review, Esther Roberton, presented her report to Scottish Ministers in October 2018^[1] and the Scottish Government response to that report was published in June 2019^[2]. Work by the Scottish Government is underway to consider how the recommendations made in the Roberton Report should be taken forward and a public consultation in due course will inform Ministers' views as to the extent to which they are to be implemented. Much of what is recommended in the Roberton Report will require primary legislative change to replace or amend the current legislative framework for the regulation of solicitors, advocates and commercial attorneys in Scotland including the Solicitors (Scotland) Act 1980^[3]; or to amend or replace other relevant statute such as the Legal Profession and Legal Aid (Scotland) Act 2007^[4] ("the 2007 Act") or the Legal Services (Scotland) Act 2010^[5].

In the longer term, the Roberton Report provides an opportunity to develop a new statutory framework for a modern, forward-looking legal services regulatory system for Scotland. The complaints system will also be adapted within that framework.

As progress on reforms continues, the Scottish Government has been working with Law Society of Scotland (the "Law Society") and the Scottish Legal Complaints Commission (the "SLCC"), and with the agreement of the Faculty of Advocates and Association of Commercial Attorneys, to develop proposals for potential change that could deliver shorter term improvements to the way in which complaints are handled within the current framework set out in the 2007 Act. These proposals are being developed with the intention of using powers available to Scottish Ministers under section 41 of the 2007 Act:

"41Power by regulations to amend duties and powers of Commission

(1) The Scottish Ministers may, after consulting—
(a) The Commission;
(b) The relevant professional organisations;
(c) Such other persons or groups of persons as they consider appropriate,

by regulations modify the provisions of this Part for the purposes of adjusting the duties imposed, or the powers conferred, by it on the Commission (including imposing new duties or conferring new powers).

(2) Regulations under subsection (1) may contain such incidental, supplemental, consequential, transitional, transitory or saving provision as the Scottish Ministers consider necessary or expedient for the purposes of that subsection (including modification of any enactment, instrument or document).

Those discussions have identified a number of potential ways in which improvements might be made and this Consultation seeks views on a number of these proposals for change that have been informed by those discussions.

B. Introduction to the legal complaints handling system in Scotland

The handling of complaints is one of the most important parts of any regulatory system. It is crucial that users of legal services have access to an efficient, effective and fair process for dealing with their complaint. Equally, legal professionals rely on a complaints system which is efficient, effective and can resolve complaints in an impartial manner.

Many of those who have been involved in the current Scottish legal complaints process introduced by the 2007 Act, including the SLCC itself, have expressed frustration with the process, partly in terms of the length of time needed to reach a conclusion to a complaint as well as the structure of the process.

In her report on the regulation of legal services, Esther Roberton wrote of "a unanimous view that the system for handling complaints is not fit for purpose"^[6]. In its response to the review's call for evidence^[7], Citizens Advice Scotland highlighted the "relative slowness of complaints resolution". Similarly, lawyers have reported their frustration with the time taken to resolve complaints and the overall cost of the complaints handling system.

There is therefore a compelling case for the consideration of amendments to the current regulatory framework for dealing with complaints that would seek to improve the way in which the legal services complaints system operates.

The current legal complaints system

The existing legislative framework under the 2007 Act is summarised in the diagram set out in the Annex to this Consultation.

Under the 2007 Act, the SLCC is the gateway for all legal complaints in Scotland against legal practitioners. After assessing the eligibility of a complaint by way of a number of tests, the SLCC categorises complaints as either service complaints or conduct complaints. Service complaints are then investigated and determined by the SLCC. Conduct complaints, or complaints which include a conduct element, are sent to the respective professional organisations for investigation and determination.

The tests applied by the SLCC on receipt of a complaint in assessing and in advance of confirming the eligibility of a complaint^[8], require to be applied by the SLCC in the specific order set out in the 2007 Act, irrespective of the nature of the case. As each decision is subject to appeal to the Court of Session^[9], the 2007 Act also requires that statutory notices are issued to each party of the complaint; meaning that at multiple stages of the complaint process a period of 28 days must elapse to allow time to appeal, before progressing to the next stage, or test, in the process.

In support of appeal rights, and to enable a complainer to make an informed decision on whether or not to appeal, the SLCC is required to provide detailed reasoning for their decisions taken at each stage of the process. This detailed reasoning requires to include sufficient reasoning to satisfy the court that the correct procedure has been properly followed.

This process can be time consuming for both the complainer and the legal services provider. It has the effect of potentially delaying a clearly serious complaint being investigated swiftly as the SLCC must proceed through the initial stage, or tests, of assessing the complaint before an investigation can be commenced.

The decision on whether to accept and investigate a complaint may also, on occasion, be made on limited evidence provided by the complainer, as the SLCC has no power to investigate until it has accepted a complaint. However, once accepted, if the SLCC investigation reveals that the complaint ought not to have been accepted, statute does not allow that initial decision to accept a complaint to be overturned or reversed. The complaint must then be taken through each step of the process, potentially until the point of determination.

All of this takes place simply to assess if the case can be accepted by the SLCC as a complaint to be looked at, something which in many complaints bodies would be a low level administrative decision. This is despite both Parliament and the courts stating that this decision is intended to be an initial sift, rather than a detailed examination of the case.

C. Overview of the proposals in this consultation

The objectives behind these proposals

This Consultation seeks views on whether these proposals would meet the objectives of:

• 1. Reducing the overall time taken to deal with complaints.
• 2. Achieving greater proportionality in the complaints system, allowing the SLCC to identify earlier in the process which issues are more likely to require investigation.
• 3. Reducing the cost of the complaints system.
• 4. Continuing to ensure an independent and fair system.
• 5. Providing greater flexibility in the system.

The changes proposed in this paper seek to build on previous changes made in 2014^[10] and are based on 10 years' working knowledge of the current legislation and the experience of the current system.

The current proposals in this Consultation on which views are sought, and which are intended to have a cumulative effect in meeting the objectives, fall into three categories:

1. Changes to the process of complaint categorisation;

2. Changes to the process of complaint investigation, reporting, determination and conclusion of cases; and

3. Changes to the rules for fee rebates.

The proposed changes listed at 1 and 3 can be viewed as standalone amendments but those listed at 2 should be viewed as a package of amendments in order to gain the maximum impact from the changes.

The proposals – a summary

The aim of the proposals detailed below is to explore options to create a more flexible and proportionate complaints system, that will be more efficient yet just as effective, if not more so. Views on whether these proposals address stated frustrations of those who have been involved in the complaints system, who often perceive it to be time consuming and overly complex, are also sought in response to this consultation.

Why is this important?

Those who make or are subject to complaints in respect of legal services have indicated that they would wish for a speedy, robust and proportionate response to each complaint. While all complaints are equally important, there is a recognition that not all complaints are the same. Those who manage the complaints process, as well as many of those who have experienced it, have stated that they consider the current statutory framework insufficiently flexible to enable the process to be adapted to the specific subject of the complaint in each individual case.

While a one-size–fits-all-approach provides consistency in the application of the complaints process, there is an argument that this does not always lead to an efficient system, with the result in the current system that the end of the complaints process can often be some time away from the time of the original incident that led to the complaint. This can be unsatisfactory for all of those involved in the process. These proposals are intended to reduce this time period and improve efficiency while continuing to maintain a robust and fair system.

Costs

The cost of the legal services complaints process administered by the SLCC is met by way of levies on the legal profession. These take the form of an annual general levy paid by all legal services providers^[11] as well as a separate complaints levy^[12] which is payable only by those legal professionals who are subject to a complaint which is upheld.

Should the proposals set out in this Consultation be taken forward then they will likely take time to be fully implemented. There is also likely to be a cost implication for implementation. Depending on the range of amendments ultimately decided to be taken forward, implementation in year one is likely to have associated costs in terms of changing rules, process and IT systems. These costs will be borne by the SLCC and it is not presently expected that these will require an increase in funding to either of the above levies. However, in the first full year of operation, and likely after set-up costs are offset, the proposed changes in this Consultation could lead to longer term savings.

D. About this Consultation

The objective of this consultation paper is to offer an opportunity for targeted views to be gathered on the technicalities of making specific changes to the legal complaints system in Scotland.

The main proposals relate to possible changes to the categorisation of complaints to introduce hybrid-issue complaints as well as changes to the processes of assessment, investigation, reporting, determination and conclusion of complaints. Possible changes to the rules on fee rebates are also proposed.

Responding to this consultation

We are inviting responses to this consultation by 20 February 2021.

Please respond to this consultation using the Scottish Government's consultation hub, Citizen Space (http://consult.gov.scot). Access and respond to this consultation online at https://consult.gov.scot/justice/amendments-to-legal-complaints/. You can save and return to your responses while the consultation is still open. Please ensure that consultation responses are submitted before the closing date of 20 February 2021.

If you are unable to respond using our consultation hub, please complete the Respondent Information Form to:

Access to Justice Unit

Scottish Government
Justice Directorate
St Andrew's House
Edinburgh
EH1 3DG

Or by email to: LegalServicesRegulationReform@gov.scot

Handling your response

If you respond using the consultation hub, you will be directed to the About You page before submitting your response. Please indicate how you wish your response to be handled and, in particular, whether you are content for your response to published. If you ask for your response not to be published, we will regard it as confidential, and we will treat it accordingly.

All respondents should be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.

If you are unable to respond via Citizen Space, please complete and return the Respondent Information Form included in this document.

To find out how we handle your personal data, please see our privacy policy: https://www.gov.scot/privacy/

Next steps in the process

Where respondents have given permission for their response to be made public, and after we have checked that they contain no potentially defamatory material, responses will be made available to the public at http://consult.gov.scot. If you use the consultation hub to respond, you will receive a copy of your response via email.

Following the closing date, all responses will be analysed and considered along with any other available evidence to help us. Responses will be published where we have been given permission to do so.

Comments and complaints

If you have any comments about how this consultation exercise has been conducted,

please send them to the contact or email address above.

Scottish Government consultation process

Consultation is an essential part of the policymaking process. It gives us the opportunity to consider your opinion and expertise on a proposed area of work.

You can find all our consultations online: http://consult.gov.scot. Each consultation details the issues under consideration, as well as a way for you to give us your views, either online, by email or by post.

Responses will be analysed and used as part of the decision making process, along with a range of other available information and evidence. We will publish a report of this analysis for every consultation. Depending on the nature of the consultation exercise the responses received may:

• indicate the need for policy development or review
• inform the development of a particular policy
• help decisions to be made between alternative policy proposals
• be used to finalise legislation before it is implemented

While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.