Scottish Legal Complaints Commission to be staffed by the Law Society of Scotland

Being short staffed recently, we feature some of the recent stories from A Diary of Injustice in Scotland

Law Society staff secretly migrating into 'independent' complaints commission will ensure continuing problems of regulating Scottish lawyers

Justice Secretary Kenny MacAskill continues to disappoint the public in terms of their consumer rights against lawyers & legal services as it was revealed today that telephone comments by staff at the the Scottish Government's Justice Directorate have revealed that a vast amount of staff from the Law Society of Scotland itself are to be migrated to the new 'independent' Scottish Legal Complaints Commission, where 'independent' means ... 'more lawyers than ever'.

At least 34 members of staff from the Law Society's headquarters at Drumsheugh Gardens in Edinburgh, are to work for the new SLCC, which was confirmed in a telephone conversation upon enquiries over the make up of the 'independent' complaints body.

The SLCC, which is yet to even start its work, but has suffered from constant attempts at the hands of the Law Society of Scotland to undermine its function, is rapidly losing it's independence from the legal profession at the hands of Justice Secretary Kenny MacAskill, even though the aims of the new complaints body was to be a break from the past and ensure independent regulation of complaints against Scottish solicitors.

We were to be treated to a spin release from the Justice Directorate over the influx of Law Society personnel as a way of 'bringing into the SLCC the most capable staff of dealing with complaints against lawyers' but discussions on how to go about this still seem to be ongoing, as some are concerned over the 'more jobs for the lawyers to protect each other' image it brings to the SLCC.

Since I have now broken the story, that will ease the problems of telling the public I hope ...

A source at the Justice Department speculated that many of the members of staff from the Law Society had themselves been involved in mishandled complaints against some very well known solicitors, where clients rights and finances had been seriously breached by the conduct of their legal representatives, with the Law Society of Scotland taking a back seat and ultimately letting those solicitors, some who had been involved in serious financial frauds against clients, to escape penalty, while ensuring the client got no compensation.

As one lawyer put it this afternoon after hearing the Law Society staff were being squirreled into the new regulatory body - "that's like asking serial abusers to go into their victims homes when they are alone and abuse them again. I don't think the public will be very happy at that."

Oddly enough I have written along these lines before, being warned during the appointments process of the Law Society's wish to ensure its staff were "at the heart" of the new complaints body with the following articles :

Scottish Legal Complaints Commission 'lacks impartiality' despite Ombudsman's appointment as Chairman

Legal Profession attempts fiddle against new Scottish Legal Complaints Commission as wider review required on injustice in Scotland

Levels of Lay Membership on new Scottish Legal Complaints Commission questioned as lawyers begin attempt to plant allies in positions

update 20 February 2008

After contacting the Scottish Government for comment, the following was received :

“Scottish Ministers have directed that TUPE applies to those staff at the Law Society of Scotland affected by the creation of the SLCC. The number of staff transferring will be borne out of the current internal organisational review within the Law Society.”

So, TUPE saves the day for the same people who are responsible for getting as many crooked lawyers off the hook as possible ... for instance, the people who let John O' Donnell amass some 21 plus negligence claims, will be saved by TUPE and instead of getting paid by lawyers to knock off complaints against lawyers, they will be getting paid by the taxpayer to knock off complaints against lawyers ...good work if you can get it - but not one move to tackle the long line of victims left by their prejudiced anti-public work at the Law Society of Scotland.

Here's some examples of the work of the Law Society staff who are migrating to the new Scottish Legal Complaints Commission :

Law Society of Scotland covers up history of crooked lawyer as new President indicates little change on pro lawyer anti client policies

Peter Cherbi comments on top Scottish Lawyer revealed by the Sunday Mail newspaper to be at centre of 12 Negligence Claims by clients

Lawyers negligence insurance branded corrupt, anti-consumer as evidence reveals only one per cent of clients get chance of payout

Lawyer caught in media sting bribing clients to defraud Legal Aid Board - the tip of an iceberg

and a few more crooked lawyers and from SACL, many more crooked lawyers who are let off the hook by these same people at the Law Society who are going to transfer to the new 'independent' SLCC ...

If you want to find out more about TUPE, go here : Transfer of Undertakings - TUPE

The conveniently placed review of the Law Society's workings, which have been geared for the last few decades to getting as many lawyers off the hook from public & client complaints, might see jobs protected but will deliver a final blow of dishonesty to what was to be a new hope for independent complaints handling against the legal profession.

On enquiring whether the Scottish Government would announce to the public that Law Society staff were to be taken into the 'independent' SLCC, the following comment was received :

"We have already announced the establishment, location and membership of the Commission.There are no plans for any further announcements at present"

Yes, I can see that would be a tricky announcement to make, and with no apparent thought to tackle the problem of an influx of 'negligence preserving lawyers' to what was to be an 'independent' complaints commission, the Justice Secretary is making a mess of things for the public, in favour of lawyers ...

end of update

The continuing demise of the Scottish Legal Complaints Commission even before it begins its work, seems to be aimed at preventing clients of solicitors and the public getting a fair hearing of their complaints in the independent venue which the SLCC was designed to be.

Allegations of continuing interference in the SLCC's formation process by the Law Society of Scotland, and charges of an almost "clueless attitude" at the Scottish Government on how to go about forming the new independent body to deal with public complaints against lawyers, have helped the legal establishment see that everything down to even the SLCC's appointments process has seen many from the legal profession itself migrate into the new body designed to prevent the mistakes of the old.

It's almost like the Law Society of Scotland has now renamed itself the "New" Law Society of Scotland - in the form of the Scottish Legal Complaints Commission, and is ensuring professional survival and control over regulation by getting their own staff into the new complaints body to prevent fair & proper hearings of public complaints against crooked lawyers.

Also today, the Scottish Government refused requests from myself and others to carry out an investigation into the appointments process, citing there was no such need and that everything had been handled correctly and above board with all appointees declaring their full histories and backgrounds.

However as you know this is not the case at all, and the new Chairman Jane Irvine, confirmed in writing she had not been given any prior knowledge of the appointees to the SLCC, even though they include lawyers whom her office has considered complaints against how the Law Society of Scotland has handled complaints against their respective legal firms and other solicitor partners, and the checkered histories of ex-Police appointees to the SLCC to which the incoming Chairman was also not made aware of.

See my earlier article for the call for an investigation into the SLCC appointments process after revelations of previous scandals of some of the appointees here : Call for MacAskill appointments 'sleaze investigation' as revelations show Legal Complaints Commission member was subject of Police inquiry

A Justice Department civil servant today stated that "shortlisted lawyer candidates were subject to checks on their disciplinary record" but those records were themselves provided by the Law Society of Scotland - who are well known to fiddle a few complaints against crooked lawyers and legal firms ... so the records themselves have no validity whatsoever other than perhaps whitewash value, which the Justice Secretary seems to be using quite well .. when it comes to his friends in the legal profession.

Cover up or cover up ? - No need for an investigation into appointments scandal, says Scottish Government

As for the public, well, there is clearly a diminishing chance of getting your complaints heard properly at the hands of the new Scottish Legal Complaints Commission, when it is going to be comprised of mostly migrated staff from the Law Society of Scotland.

The Law Society of Scotland have wasted no time in getting their spies into the new SLCC, and I say that with considerable ease, as given the performances I have seen from the Law Society staff against poor clients who had to complain against a crooked lawyer, I wouldn't trust anyone who worked at the Law Society to be able to change their conditioning and work in what is supposed to be a completely transparent regulatory environment at the SLCC, compared with the secretive, closed and corrupt regulatory environment at the Law Society of Scotland.

Not much of a public interest performance from Kenny MacAskill then, who doesn't seem to value Scots rights at all when it comes to dealings with lawyers.

There does seem to be a problem emerging now with the SNP on issues of Justice and public access to it. While I am fully supportive of many other Scottish Government policies in different walks of life, I am left to wonder, as many now are, why the SNP is failing on justice. Is that solely down to Kenny MacAskill and if so why is this being allowed to happen ?

Put Scots before lawyers for a change ... we deserve it, Mr MacAskill ...

Law Society 'secretly preparing legal challenge against Government over SLCC' claims campaigners

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.

New law watchdog 'in breach of human rights law'

MICHAEL HOWIE

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.

Holyrood in solicitors’ sights

IAN FRASER

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 !

Legal Challenge to Complaints Reform Bill Likely

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."

ENDS

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 gillianmeighan@lawscot.org.uk or jodyfitchet@lawscot.org.uk