The Law Society of Scotland, who last year threatened the Scottish Parliament and Executive over the passage of the Legal Profession & Legal Aid (Scotland) Act 2007, is still secretly working on forcing the SNP Scottish Government to cave into demands for less interference from the new Scottish Legal Complaints Commission, according to campaigners.
In a series of meetings between the Law Society, Kenny MacAskill, and Bil Aitken, the Tory Justice spokesman and carefully planted Convener of the single Justice Committee at Holyrood, officials from the legal profession have allegedly warned they will act or undermine the new SLCC if their demands are not met ...
Of note recently was Bill Aitken's support & congratulations to Douglas Mill, who authored the legal challenge threat to the Parliament over the LPLA (Scotland) Act 2007, which may indicate Tory support for lawyers to be allowed to continue regulating complaints against themselves.
The Scotsman & Herald report, along with a Press release from the Law Society itself.
A PROPOSED new quango to deal with complaints against Scottish lawyers will be in breach of human rights law, according to one of the UK's top legal minds.
Lord Lester of Herne Hill said the Executive's planned reforms of the way that legal complaints are handled are "flawed" and "wrong in law".
Currently, any complaints against lawyers are handled by the Law Society of Scotland, but under the Legal Profession and Legal Aid (Scotland) Bill, the 10,000 solicitors and advocates will be policed by an independent body - the Scottish Legal Complaints Commission - which will handle most of the thousands of grievances lodged against lawyers every year.
The Law Society has accepted the need for a new complaints watchdog, but has warned that the specific proposals may not comply with the European Convention on Human Rights. They sought the opinion of Lord Lester - one of the UK's foremost experts in human rights - who has concluded the absence of any right of appeal to an external court or tribunal against a ruling by the commission would contravene human rights law.
The watchdog's main function will be to handle consumer or service complaints, which comprise about 80 per cent of the grievances made every year about solicitors and advocates.
It will be able to make compensation awards of up to £20,000 against lawyers - a sum which the Law Society says could put some practices out of business; hence the need for a rigorous appeal process to ensure the system is fair.
Douglas Mill, the chief executive of the Law Society, said: "The opinion states that there is insufficient right of appeal for the public and that the proposals compromise the independence of the legal profession in Scotland.
"The society has passed the opinion to the Scottish Executive. A meeting has now been arranged, and there is still time for the Executive and justice ministers to take the society's concerns seriously to correct the bill."
However, an Executive spokesman said the bill had been certified by ministers as compliant with the European convention. "We are considering very carefully the opinion put forward by Lord Lester," he said.
Douglas Mill, secretary and chief executive of the Law Society of Scotland, has the politicians of Holyrood and the civil servants of Victoria Quay firmly in his sights.
However, his tactics are about to change. It appears that the rather gentlemanly opening skirmishes are over and warfare is about to break out.
The issue that has precipitated hostilities is the "independent" complaints body MSPs are currently piecing together.
Mill and many solicitors believe it will undermine the Scottish legal profession and make it more difficult for Scottish clients to access a solicitor at relatively low cost. The Scottish Executive begs to differ, of course.
Mill concedes that entrusting the handling of "service" complaints against Scottish lawyers to an independent, government-funded body does makes sense, even though he thinks the society's record is more than acceptable in this regard.
At present, the society handles both service and conduct complaints about solicitors, a system of self-regulation which has attracted fierce criticism.
"That (conceding that service complaints should be independently handled) is a big concession for us, but we are utterly pragmatic about it," says Mill, speaking in the library of the society's Victorian headquarters in Drumsheugh Gardens.
"Unlike the advocates, most solicitors are entirely happy with the idea that their professional body should no longer be responsible for handling service complaints. If we no longer have responsibility for service complaints, our members might even start to love us again," he jokes.
Mill's concern is that the legislation, the Legal Profession and Legal Aid (Scotland) Bill, will give rise to a Frankenstein's monster of a complaints-handling body.
Not only does he believe that the proposed Scottish Legal Complaints Commission will be slow, rule-based, bureaucratic and expensive – his biggest fear is that it will not be properly independent, as appointments to it and pay levels for commissioners will be set by Scottish ministers.
It is partly for this reason that the eminent Queen's Counsel, Lord Lester of Herne Hill, recently said the body as proposed will be incompatible with the European Convention on Human Rights.
Mill says: "The proposed body will cost about four or five times more than the current system – and it is inevitable firms will pass those costs onto clients."
Mill does have one nuclear option up his sleeve. He told The Herald that the society will probably take Scottish ministers to court after the bill is enacted, if it is enacted in its present form.
Mill is particularly worked up by what he claims is the lack of understanding of the machinations of the law displayed by bureaucrats and politicians.
"The inability of civil servants to engage with the society, and their lack of trust in the society, has been stunning," said Mill. He accuses them of "not understanding" how professional indemnity insurance and specifically the society's "master policy" works. "Talking to them on these subjects is like having a dialogue with the deaf," says Mill.
"The civil servants seem incapable of distinguishing between the master policy (which is negotiated annually on behalf of all solicitors with insurers by the insurance brokers Marsh) and the wholly separate guarantee fund," he adds. "They want to look at claims (against the master policy) and how these are handled. But they cannot do that. If they do try to do this, I believe the insurers and the Financial Services Authority will tell the Scottish Parliament to take a hike."
He also believes the parliamentary time and the Justice 2 Committee time that has been allocated to piecing the bill together is inadequate, particularly in view of the number of amendments tabled. "It's an absurdly short timescale," said Mill. "They have four 90- minute sessions to deal with around 550 amendments."
Mill further opines that the lack of a revising chamber at Holyrood, with powers to rein in the Executive, has made it possible for what he sees as a shoddy and ill-thought out piece of legislation that will undermine the independence of the legal profession to near the statute books.
The society also believes the Executive is being unrealistic in its proposed time frame for getting the new complaints-handling body up and running. "I don't believe the new body will be ready to start handling service complaints before January 2009 at the earliest," he says.
Another controversial subject which has divided the profession is that of alternative business structures (ABSs), proposed in the landmark Clementi report south of the border. One reform involves giving non-lawyers the ability to hold equity stakes in law firms, though only at present in England and Wales.
Mill cannot understand how such things would work in practice.
"I can see the business argument for ABSs. The problem is no-one has come up with any workable proposals as to how such things might be regulated. There is also the issue of why non-solicitor owners of law firms – for example fund managers, estate agents and tax planners – should be exposed to unlimited liability for the conduct of their solicitor colleagues. ABSs are totally inconsistent with the current collegiate approach to fidelity.
"There is not much of an appetite for ABSs in Scotland, apart from around six firms," he claims. "However if Westminster does introduce ABSs we acknowledge that we will be unable to hermetically seal Hadrian's Wall." Mill also alleges that "the potential for fraud would be infinite" if non-lawyers are to be allowed to own firms of solicitors.
Mill returns, finally, to his fears that reforms to complaints handling will jeopardise the very independence of the legal profession. "There is no modern democracy where the executive controls the legal profession," he warns. "That sort of thing is more likely to happen in a place such as Zimbabwe than in a modern democracy.
"We do welcome change, but we want the new body to be workable, independent and accountable. That is a long way from what we appear to be getting."
Some lawyers back Mill's uncompromising stance. Douglas Connell, joint senior partner of leading private client firm Turcan Connell said: "While I am in favour of an independent complaints handling body, I think the notion that any law firm that has a service complaint made against them should be made to pay a levy of hundreds of pounds before a case is even heard, is iniquitous, indefensible and hugely open to abuse."
However Kirk Murdoch, senior partner of McGrigors said: "The mood of the country is no longer in favour of independent regulation. The decision has already been taken on this, so in my view Douglas Mill is pushing water uphill."
and finally, a desperate Press Release from the Law Society of Scotland - who were so desperate they had to draft in an English QC to make the opinion that it is a lawyers 'human right' to fiddle complaints against a colleague !
A LEGAL challenge to the Scottish Executive's Legal Profession and Legal Aid Scotland Bill is likely because of the failure to correct flaws in the legislation, the UK's leading human rights QC concludes in an opinion published today (Wednesday, November 8) by the Law Society of Scotland.
Lord Lester of Herne Hill, QC, says that, despite Executive amendments to the Legal Profession and Legal Aid (Scotland) Bill which proposes to establish the Scottish Legal Complaints Commission (SLCC) to handle service complaints against lawyers in Scotland, still fails to comply with the European Convention on Human Rights (ECHR).
He adds that the Bill is therefore not competent under the Scotland Act, which established the Holyrood parliament, and could face a court challenge. Since devolution, no legislation has been struck down, so a successful challenge would make legal history.
He concludes: "In my view, the amended provisions are not sufficient to comply with the Human Rights Act and the Scotland Act. As they stand, they are likely to give rise to unnecessary legal proceedings challenging their compatibility with Article 6 of the ECHR."
Lord Lester believes that the SLCC would not be an "independent and impartial tribunal" as required under ECHR because it would consider negligence - a civil law matter - as part of service complaints yet there would be no right of appeal to a judicial body against its decisions.
He adds; "It is essential to create a right of appeal to an independent court or tribunal if the Bill is to pass muster under the Human Rights Act."
Douglas Mill, Chief Executive of the Society, said today: "The Society supports an independent body to handle service complaints against solicitors but it must work better than the existing system. As currently proposed, this is not the case.
"We made every attempt to point out the flaws in this Bill throughout the consultation and parliamentary processes. Indeed, over 450 amendments have been debated so perhaps some of the deficiencies have been recognised. But the changes do not go far enough, a conclusion Lord Lester agrees with.
"The proposed Commission will still not be sufficiently independent of government control and therefore continues to pose a threat to the independence of the legal profession. Both complainers and solicitors will suffer if there is insufficient right of appeal.
"Even at this late stage, the Executive has an opportunity to correct these flaws. It is surely better to do that than provoke a costly and disruptive legal challenge to the European Court of Human Rights, as Lord Lester warns."
Notes to Editors:
* Lord Lester is available for interview this afternoon (November 8). He can be contacted after 3.30pm on Tel:0785 0400925.
* The Society has obtained two opinions from Lord Lester to ensure that the reforms proposed in the Bill are workable under ECHR and an improvement on the current system for handling complaints against solicitors. The first opinion, from March 2006, was based on the proposals as contained in the Bill when first published. It warned that the reforms proposed were "flawed...and wrong in law". The second opinion, summarised above, considered the impact of relevant amendments.
* A biography of Lord Lester of Herne Hill QC can be accessed through the House of Lords Section of www.parliament.uk. The Society sought the opinion of Lord Lester of Herne Hill, Q.C. as a pre-eminent expert on human rights law. As a member of the English Bar, he is not affected by the Bill's proposals.
* Amendments by the Executive cover matters such as: removing ministers' "power of general direction" in relation to the SLCC; creating a role for the Lord President in the removal of SLCC members; providing security of tenure for SLCC members; and, making some changes to the decision-making process.
* The Society has a full report and information on the bill on its website. The bill pack ad information ca be accessed through the home page at http://www.lawscot.org.uk
For Further Information: Please contact Gillian Meighan or Jody Fitchet at the Corporate Communications Office at the law Society of Scotland by calling: Tel 0131 476 8167 or 0131 476 8186 or emailing email@example.com or firstname.lastname@example.org