Legal services regulation reform: consultation analysis

Part 4 Complaints and Redress

Introduction

The Roberton Report advised that there was clear agreement in relation to the view of the legal complaints and redress process. It found a strongly held perception in the sector that the current complaints system was not fit for purpose. The consultation document set out the various recommendations made in relation to complaints and redress, as well as the implications of how this might work under the proposed regulatory framework options. Feedback was sought on the complaints process and how this should operate going forward.

The consultation document also discussed the positioning of the Disciplinary Tribunals within the regulatory framework and whether the sanctions currently available to Tribunals should be amended. Views were also sought on the complaints budget, and whether this should be subject to the approval of the Scottish Parliament.

Question 47

Q47. To what extent do you agree or disagree that there should be a single gateway for all legal complaints?

Base: 107

Of those respondents who indicated their level of agreement/disagreement, most (87%, n=93) agreed to some extent that there should be a single gateway for all legal complaints. Only 13% (n=14) disagreed with this.

Several respondents criticised the current complaints system, with a few outlining personal negative experiences of this, a few suggesting it was designed to protect the profession rather than consumers, and others arguing that the current system was confusing, time consuming, and had too many bodies involved. It was argued that providing a single gateway for all legal complaints would make the process more efficient, bring clarity and transparency to the process for both the profession and consumers, and make access simpler for consumers:

"The consumer needs as much clarity as possible. At present it is far too difficult and time consuming for the consumer to work out what to do." (Individual)

"As recommended by the Roberton Report, a single gateway complaints-handling system is necessary to ensure simplicity, transparency and accessibility." (Consumer Organisation, Professional Body)

It should be noted that, for the respondents above, it was not always clear whether they were discussing the benefits of a single gateway or were referring to a single complaints body that would handle all stages of the complaint. Indeed, several did express a preference for a single body, while others were less explicit.

Several respondents also supported the current framework, with a single gateway for complaints to be raised, but then for these complaints to be referred to the relevant professional body to be actioned. It was cautioned that the processes operating behind the gateway were critical to the success of the system, with it being suggested these needed to be simplified and delays eliminated:

"I do agree, but I think it should be more administrative, simply providing an easy way for consumers to make a complaint and for it to be directed to the appropriate professional body without the consumer having to know who that is." (Individual)

Several respondents from the legal profession, including the Law Society of Scotland and those who supported their response, also suggested that, in addition to a consumer complaints process, there would be merit in facilitating the regulator or professional bodies to refer matters for investigation themselves, and for these to be facilitated in an efficient and timely manner:

"It may be that a modified version of the current system would be more efficient. For instance, a single gateway for consumers to make complaints but also allowing us, and the other professional bodies, to take conduct complaints forward under our own initiative. This would ensure consumers would be clear about where to take a complaint and professional bodies would not face delays in taking regulatory action in relation to conduct matters." (Organisation, Professional Body, Law Society of Scotland)

There were also concerns that, to remove the single gateway approach (as already existed), would reduce the independence of the system, increase costs, and create inefficiencies, complexity and confusion:

"Removing the single gateway would reduce the independence within the system, make it less consumer focused, and is more likely to create greater inefficiency and ineffectiveness… It would also mean duplicating the enquiries and eligibility functions across the complaints body and the various regulators, leading to greater costs and inefficiency. This would be a significant backward step." (Consumer Organisation, Public Body/Sector)

Those who disagreed tended to provide more disparate reasons for this. Reasons mentioned more than once included:

• The process needed to vary depending on the subject matter, and/or that separate systems were needed for business and individual consumers;
• The relevant professional bodies/regulators should be responsible for complaints;
• The current system was appropriate and therefore there was no need for change; and
• Disillusionment with the current single gateway system/SLCC was evident, with one suggesting this would simply protect the interests of the profession while another felt this was not impartial and acted more in favour of the consumer.

The Faculty of Advocates, while disagreeing with the need for a single gateway in preference to Faculty assuming responsibility for all complaints against advocates, did suggest that, should the single gateway function continue, this should operate simply as a sifting mechanism with all substantive complaints against advocates being referred to Faculty for investigation. It was felt this was more efficient and cost effective in comparison to the current model where the SLCC and professional bodies pursue different types of complaints. Several respondents throughout this section of the consultation and in other comments also agreed there needed to be a stricter sifting process to identify and deal with vexatious complaints.

A few possible complaints models which could offer useful learning were suggested, including New South Wales in Australia, and the system employed in England and Wales (although the latter was suggested as it may contain both pros and cons). A few respondents also outlined bespoke suggestions for how they felt the complaints and redress system should be set up and operate, with the system proposed by the Law Society of Scotland outlined in Appendix A as it was supported by a number of other respondents.

Seven focus groups also discussed the single gateway approach to complaints, with mixed views being expressed. Again, many attendees were keen to see a single gateway, although views were split as to whether this needed to be a new independent body or if the existing system could be adapted, and also regarding who should ultimately handle the complaints. Again, those who supported a fully independent body argued this was necessary to provide an unbiased approach.

A few agreed that the current framework, with a single gateway and then complaints referred to either sub-groups within the regulator, or to the relevant professional body was appropriate. However, it was argued that, if using the professional bodies, this needed better communication and to be publicly presented to highlight the transparency and independence currently built into the system to avoid perceptions of conflicts of interest. Others agreed that the current process needed to be 'fixed' rather than a new tier being added.

Others preferred:

• A multiple gateway option for complaints, with the key issue being the need to speed up the process;
• A consumer panel to be involved in the regulatory body to help provide balance and reassurance to consumers;
• An independent ombudsman to be involved as this would be better understood by the public/consumers; and
• The courts to handle complaints as they have the required experience and there is a built in appeals process - although others disagreed as this was seen as expensive and inaccessible for most consumers.

A few also felt that it was the rules and legislation which underpinned the complaints structure which needed to be addressed and reformed rather than necessarily the organisations or framework itself. They felt this was a missed opportunity to tackle those elements which would have the biggest impact.

Question 48

Q48. Dependant on the regulatory model take forward, to what extent do you agree or disagree that the professional regulatory bodies should maintain a role in conduct complaint handling, where a complaint is generated by an external complainer such as a client, or non-client?

Base: 101

Of those who provided a response at the closed element of this question, 70% (n=71) agreed that the professional regulatory bodies should maintain a role in conduct complaint handling, where a complaint is generated by an external complainer.

The key reasons given for agreeing with professional regulatory bodies having a continued role in conduct complaint handling included:

• To uphold the reputation and standards of the profession as well as providing reassurances to the public;
• They were best placed to assess such issues due to having direct experience of this aspect of the profession; and
• To maintain the independence of the profession:

"Professional regulatory bodies should maintain a role in conduct complaint handling. They have an interest in protecting both the consumer and the reputation of their profession." (Organisation, Legal Services Provider)

It was also felt that removing professional regulatory bodies from conduct complaints would be a disproportionate step, with the Law Society of Scotland also arguing that it would lead to a loss of expertise, undermining of the rule of law and independence of the profession, and increased costs for the consumer.

Those who disagreed with having professional regulatory bodies involved in conduct complaint handling preferred such issues to be handled by an independent complaints body to maintain independence from the profession, remove any bias in the process, and avoid conflicts of interest by separating complaints and representative functions. It was also argued that the ability to conduct a single investigation would abolish the need to attribute a complaint as either 'service' or 'conduct', which it was felt were linked and often indistinguishable from each other:

"An independent body is best placed to investigate all consumer complaints in full, avoiding an early and artificial distinction between service and conduct, and ensuring a consumer friendly and efficient process throughout, without handovers between different bodies. That means a single complaints body, able to manage complaints from start to finish, without duplication and delay, should be created." (Consumer Organisation, Public Body/Sector)

"Under no circumstances should the legal profession be granted anything which resembles the opportunity for them to mark their own homework - or more accurately… to protect their own." (Individual)

Further, it was argued that, maintaining a system with different bodies involved in the complaints process was complex, confusing, slow, led to duplication in process, and increased costs:

"One of the major shortfalls we identify in the current process is the duplication caused by different bodies being involved in the process and, in some cases, investigating different aspects of the same complaint - duplication to any degree inevitably builds delay into the process." (Organisation, Consumer Body/Panel)

One respondent also felt that, having a single regulator responsible for monitoring all complaints would provide an effective means of collating consumer feedback to identify themes for driving forward improvement, and that this organisation could be flexible enough to incorporate any new market entrants.

Question 49

Q49. Dependant on the regulatory model taken forward, to what extent do you agree or disagree that the professional regulatory bodies should maintain a role in conduct complaint handling, with regard to the investigation and prosecution of regulatory compliance issues?

Base: 97

Around three quarters (76%, n=73) agreed that the professional regulatory bodies should maintain a role in conduct complaint handling, with regard to the investigation and prosecution of regulatory compliance issues.

Many respondents simply indicated that their response at Q48 was also relevant here, with others reiterating the points made above. This included that professional bodies were best placed/had the most experience and expertise to investigate conduct complaints, the risk of professional bodies becoming irrelevant if removed from the process, and that the process needed to change not the organisations involved:

"The issues that arise are not about who deals with the complaint but are about the cumbersome process. It is a rigid system that is not directed towards resolving the issues but determining fault. It also takes far too long." (Organisation, Legal Services Provider)

It was noted that different rules of proof are required for conduct complaints, and that the current professional bodies have the required experience and expertise to deal with this, while the SLCC or any new/external regulatory body would not:

"Mainly because they have the expertise to do it which has been lacking in external investigation." (Individual)

Again, those who disagreed preferred to have a fully independent regulator investigating such complaints, and noted that this would remove the confusion and complexity that exists in the current system:

"Like the Police or banking, you never allow in-house to investigate their own complaints. Why have an independent oversight if you then allow self-investigation." (Individual)

A few, who preferred the Roberton Model noted that, should Options 2 or 3 be chosen, then independent regulatory committees should be used in order to ensure greater independence and accountability.

It was again argued that, depending upon the model chosen, either the regulator or professional bodies should have the ability to bring investigations themselves rather than being reliant on a complaint being submitted.

Question 50

Q50. From the complaint issues below please give a preference between the options a) an independent body or; b) a professional regulatory body; who you think should investigate each of the following:

For both 'unsatisfactory conduct' and 'professional misconduct' just under two thirds of respondents (60%, n=53 and 61%, n=54 respectively) preferred these to be investigated by a professional body. For 'service' issues however, 62% (n=55) preferred these to be investigated by an independent body.

Again, many respondents cited their previous answers, particularly at Q4, Q48 and Q49, regarding why they supported either an independent or professional body investigating issues. Little new information was provided at this question. A few respondents also outlined their preferred complaints handling system, typically bespoke to each respondent rather than based on established/referenced models in use elsewhere, although a few did note that the system in England and Wales (i.e. the Legal Ombudsman Service) may provide a useful model.

For those who preferred an independent body for each of the three issues, the reasons were again, that respondents felt this would provide more independent and impartial investigation which would be more suited to upholding consumer rights, and would simplify and streamline the system and allow for hybrid-complaints. Meanwhile, those who preferred professional bodies to investigate all issues felt they were the best placed to do so, with the need for independence from Government reiterated.

For some, the type of body preferred to deal with each type of complaint varied by the nature of the issue, how serious they considered the matter, and who would be best placed to deal with each:

"Service and unsatisfactory conduct could be entrusted to an independent body since these issues are likely to be easier to fix, i.e. less messy. Professional misconduct, being a more serious situation would be better dealt with by a professional body." (Individual)

"Professional regulatory bodies, as we have indicated above, are best placed to deal with issues relating to unsatisfactory conduct and professional misconduct. Service complaints, on the other hand, should remain with an independent body reflecting the difference between service complaints which impact the consumer and conduct complaints which deal with matters which may adversely affect confidence in the legal profession." (Organisation, Legal Services Provider)

Question 51

Q51. To what extent do you agree or disagree that there should be a level of redress for all legal complaints, regardless of regulated activity?

Base: 92

Most respondents who provided a rating agreed (86%, n=79) that there should be a level of redress for all legal complaints, regardless of regulatory activity.

A few organisations felt that consumers would be unlikely to know which areas were regulated and would expect that the complaints and redress process would be applicable for all issues, therefore the system needed to take account of this:

"Since consumers are unlikely to be familiar with which activities are, or are not, reserved and/or regulated, they will assume that this exists for all legal complaints and so must be in place." (Consumer Organisation, Third Sector)

Indeed, this concern appeared to be born out in the comments, with many individuals indicating that all complaints should be investigated and redress available, whatever the issue has been. It was argued by both individuals and organisations that this would ensure greater confidence and perceptions of fairness in the system:

"We agree that there should be a level of redress for all legal complaints, regardless of the regulated activity. However, that should be subject to such complaints having been judged (via the complaints system) to be well-founded. In that event, it is only fair that those who have suffered resultant loss are compensated. Having such redress also helps to maintain public confidence in any complaints system." (Organisation, Legal Services Provider)

Of those who disagreed, very few provided any qualitative comments. Two respondents (along with one who had not specified whether they were for or against the proposal) indicated that they had found the question difficult to understand, while one noted:

"I am not sure how you can have redress for a complaint which is not a regulated activity." (Individual)

Question 52

Q52. To what extent do you agree or disagree that there should be a single Discipline Tribunal for legal professionals, incorporated into the Scottish Courts and Tribunals Service?

Base: 98

Over half of the respondents who provided a rating (57%, n=56) agreed that there should be a single Discipline Tribunal for legal professionals, incorporated into the Scottish Courts and Tribunals Service (SCTS), compared to 43% (n=42) who disagreed.

Those who agreed with this proposal provided a range of reasons, including:

• To avoid conflicts of interest and/or any bias;
• To provide consistency in decision making;
• To be more cost efficient; and
• To provide transparency/clarity, make the process more streamlined, and remove duplication in roles/efforts:

"A single discipline tribunal would help to reduce duplication in the system, make it more accessible for smaller professions/new entrants and ensure consistency of approach. Being housed within the Scottish Courts and Tribunals Service could also help to provide additional capacity on certain issues. It would also help to ensure public and professional confidence in the impartiality of the tribunal, and support appropriate governance, for example in making appointments through an appropriate process and ensuring that legal and lay members are appointed and remunerated on an equal basis." (Consumer Organisation, Public Body/Sector)

Those who disagreed with the proposal also provided a range of reasons, including:

• That professional bodies should be responsible for addressing such issues, whilst still being open and transparent - indeed it was noted that the Scottish Solicitors Disciplinary Tribunal (SSDT) and Faculty of Advocates already operated tribunal systems which were noted to be impartial, open and transparent. It was felt there was no cost or efficiency benefit in transferring this to SCTS as a single entity;
• It was not a proportionate reaction to the current issues or number of cases involved, court based tribunals were not used in other professions, therefore, this represented an unnecessary step;
• It would not be practical to have one tribunal dealing with both solicitors and advocates, it was felt that this would result in losing specialist expertise; and
• It would increase court workloads and increase public cost:

"Reform is disproportionate to the small number of cases involved. Merging the tribunal systems into the generic courts system will lead to loss of specialist expertise." (Individual)

"The case for incorporation into SCTS is not clear. Other professional disciplinary tribunals are not part of the SCTS… Another major question would relate to funding of the Tribunal if it was to be incorporated into the SCTS. At present the SSDT is funded by the Law Society of Scotland and so the costs of operation are borne by the profession at large. Should the tribunal be funded by general taxation in the absence of any real case for change? The cost and administrative burden of incorporation might also not be justifiable for a Tribunal which deals with around 40 cases a year…" (Organisation, Legal Services Regulatory Body)

Question 53

Q53. To what extent do you agree or disagree that any future legal complaints model should incorporate the requirement for the complaints budget to require the approval of the Scottish Parliament?

Base: 97

Around half (51%, n=50) of those who provided a rating agreed that any future legal complaints model should incorporate the requirement for the complaints budget to require the approval of the Scottish Parliament, while 49% (n=47) disagreed.

For those who agreed, this was felt to be a positive and sensible step which would provide public scrutiny, transparency and accountability. It would offer reassurance that the complaints system was being funded properly, fairly and efficiently.

A few agreed in general terms with there being a need to provide scrutiny in relation to the SLCC/complaints budget, but were resistant to the Scottish Parliament performing this role. It was felt this would undermine the independence of the legal profession:

"There are issues around the setting of the SLCC budget which need to be addressed. It is perhaps better dealt with outside Parliament but there is a need for checks and balances in that process. We agree… that to help preserve the independence of the profession, Parliament should not have control over the budget that is set for dealing with conduct complaints." (Organisation, Legal Services Provider)

This was also a key issue for many who disagreed with the proposal. It was argued that oversight of the complaints budget by the Scottish Parliament could infringe upon, or be perceived as influencing, the independence of the legal system. Therefore, another independent body should be sought - with a few suggesting the Lord President as an option:

"We believe that scrutiny and approval of the SLCC complaints budget should be independent of the Parliament and the executive to demonstrate full transparency that would have the confidence of the regulated population and consumers alike. We suggest that there may be potential for the Lord President, as the independent head of the judiciary and courts services, to play a role in this or, alternatively, another independent third party… Under this proposal, the state, via the Scottish Parliament, would have an ability to directly influence the activity of the regulator through approval of its budget." (Organisation, Professional Body, Law Society of Scotland)

A few in support of the proposal also caveated that the need for such an approval system would depend on the regulatory model implemented. It was suggested that Parliamentary approval would be required if a new, independent regulator receiving public funds were created, but it was not required for a system where complaints are handled by professional bodies, as this was self-funded by the profession:

"It depends on the model. If complaints are handled by the Law Society and the Faculty this wouldn't be necessary as the complaints budget comes as part of a direct ask of members to contribute to the organisational running costs. It is only when a third organisation creates a levy that there needs to be this additional scrutiny of the budget." (Individual)

Again, this was another key reason given by respondents who disagreed with the proposal - they felt that the current system, of levies on the profession to pay for the complaints system should continue, that this was a matter for the profession, and therefore it was inappropriate or unnecessary for Parliament to approve this:

"[The SLCC] budget does not come from the block grant administered by Parliament (as is the case for bodies subject to this type of budget approval), but from the profession, which makes this approval seem inappropriate... It would not be consistent with the arrangements in other professions, for example the General Medical Council, General Dental Council, or the General Teaching Council for Scotland. All these bodies have a model similar to the SLCC due to the concerns about the independence of the regulatory model." (Consumer Organisation, Public Body/Sector)

Question 54

Q54. From the options listed how important do you think each of the following principles and objectives are for any future regulatory model?

The chart below shows that, across all options provided, most respondents felt that the listed principles and objectives were either 'very' or 'somewhat important' for any future regulatory model.

Those elements which generated the greatest levels of support included:

• Model 1: Uphold the rule of law and the proper administration of justice - 100% felt this was important overall (91% felt this was very important);
• Model 1: Provide access to justice - 98% felt this was important overall (80% indicated this was very important);
• Model 1: Transparent, publish a range of information including decision criteria, complaints data and outcomes of cases. Be able to advise on trends and issues emerging from first tier complaints - 96% felt this was important overall (91% indicated this was very important); and
• Model 1: Provide prompt resolution, proportionate to the complexity of the complaint - 95% felt this was important overall (74% said it was very important).

Those elements which received the lowest levels of support and greatest proportions of respondents who indicated they were either 'not important' or 'should be removed', included:

• Model 1: The levy for entities should be on a financial turnover basis - 42% saw this more negatively (19% indicated this was not important and 23% said this should be removed); and
• Model 1: There should be no appeal in terms of the amount of compensation awarded, similar to other professions - 37% saw this more negatively (15% said this was not important and 22% felt this should be removed).

While 'Model 1: Appeals process simplified while adhering to ECHR. No appeal from the Complaints Ombudsman, but the ability to appeal to the Court of Session in relation to misconduct' was generally supported by 79% of respondents, the use of the Court of Session for appeals was seen less favourably in the five focus groups where this was discussed. The Court of Session was generally considered to be too expensive, for both consumers and legal professionals, therefore limiting access to justice. A few suggested that the Court of Session was an inappropriate setting, preferring instead the Sheriff Court and Sheriff Principal to hear appeals, and that virtual systems should be used. Others preferred a Tribunal system to handle appeals.

A few respondents (who provided non-standard responses) also offered unique qualitative comments, either to set out their reasons for supporting some/all of the above principles and objectives, to caveat in which circumstances they would support each one, or to outline whether they perceived that the different regulatory models set out in the consultation document would enhance or undermine these.