Legal Services Regulation Reform in Scotland: Consultation Analysis Reviewed – Part 5: Complaints and Redress
This post, on complaints and redress, is the fifth in a series of five blog posts, each one looking at different aspects of the Consultation Analysis on Legal Services Regulation Reform in Scotland.
That consultation comes on the back of the ‘Roberton Review‘, which was an independent Review commissioned by the Scottish Government in 2017 and chaired by Esther A. Roberton.
The introduction to the section in the Consultation Analysis on complaints and redress states:-
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.
Should there be a Single Gateway for all Legal Complaints?
The first question asked in the consultation on complains and redress was: To what extent do you agree or disagree that there should be a single gateway for all legal complaints?
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.
Comments on this included:-
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.
As recommended by the Roberton Report, a single gateway complaints-handling system is necessary to ensure simplicity, transparency and accessibility.
However the Consultation Analysis notes that:-
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.
The Consultation Analysis stated that “those who disagreed tended to provide more disparate reasons for this.” These 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, again not wanting to be a Turkey voting for Christmas, wishes to assume responsibility for all complaints against advocates.
My own experience in lodging a complaint against an Advocate to Faculty Services was very unsatisfactory. The shutters came down. It was very much a case of protecting their own.
Some recent high profile cases of possible misconduct involving QCs have also come under criticism for the way they were handled by the Faculty of Advocates.
In highlighting the question of vexatious complaints the Consultation Analysis states that:-
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.
Should the Professional Regulatory Bodies maintain a role in Conduct Complaint Handling?
The consultation asked: 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, where a complaint is generated by an external complainer such as a client, or non-client?
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.
I am sure the second point is a valid one. However, I would expect any independent body conducting complaint handling to have those from the profession involved in the process.
Loss of Expertise
The Law Society of Scotland were concerned about:
a loss of expertise undermining of the rule of law and independence of the profession, and increased costs for the consumer.
Surely the Law Society will facilitate a transfer of such expertise to any body set up to conduct complaint handling?
The Consultation Analysis states that:-
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.
The Elephant in the Room
This is basically the same argument for having one overall regulator independent from the professional bodies whose members it regulates. An argument that it appears quite difficult to argue against. And one that was referred to at ‘The Roberton Rammy‘ as “the elephant in the room”:
No real rebuttal around the point that good regulation should be independent of those it regulates, which seems to be the elephant in the room.
As one respondent to the Consultation Analysis put it:-
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.
Should the Professional Regulatory Bodies maintain a role in conduct complaint handling, with regard to the investigation and prosecution of regulatory compliance issues?
This question was not significantly different from the previous one. It asked: 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?
I suppose the difference is where a compliance issue is identified against a solicitor (presumably by the regulator). Rather than a complaint lodged against them by a client or a third party as per the previous question.
But I am unsure why the arguments for dealing with such an issue should be any different. Indeed “many respondents simply indicated that their response [to the previous question] was also relevant here, with others reiterating the points made above.”
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.
Although when looking at this figure you have to be careful to remember that, as mentioned in Part 1 of this series of blog posts, the Consultation Analysis highlighted that:-
there was evidence of coordination of responses. Mostly, this was respondents supporting the Law Society of Scotland’s organisational response.
Which possibly and maybe unrealistically provides the high figure in favour of the status quo.
As one respondent put it:-
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.
Preferences between an Independent Body or a Professional Regulatory Body investigating different types of complaints
The consultation asked: 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: (i) Service, (ii) Unsatisfactory conduct, and (iii) Professional misconduct.
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.
The Consultation Analysis points out:-
Again, many respondents cited their previous answers… regarding why they supported either an independent or professional body investigating issues. Little new information was provided at this question.
It also states:-
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.
Should there be a level of redress for all legal complaints, regardless of regulated activity?
The consultation asked: To what extent do you agree or disagree that there should be a level of redress for all legal complaints, regardless of regulated activity?
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.
The Consultation Analysis states that:-
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.
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.
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.”
Should there be a single Discipline Tribunal for legal professionals, incorporated into the Scottish Courts and Tribunals Service?
The consultation asked: 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?
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 did so for reasons that included:-
- 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.
Whilst those that disagreed with the proposal gave reasons such as:-
- 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.
Should the Complaints Budget require the approval of the Scottish Parliament?
The consultation asked: 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?
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.
The Consultation Analysis states:-
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.
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.
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.
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.
I think, ultimately, it does depend on the set up we end up with. Then what is the most appropriate bugetary controls to put around that are.
Esther Roberton recommended that the cost of the new regulatory system should not be more than the cost of the current system. Also that the annual report and budget of the new regulator would be subject to scrutiny by Audit Scotland.
This was to ensure an additional accountability mechanism. And to provide assurance that efficient, effective and proportionate regulatory arrangements are in place.
I am unsure how oversight of a regulatory body’s budget by the Scottish Parliament / Audit Scotland could affect the independence of the legal profession. However, any real concerns can surely be addressed by the introduction of appropriate checks and balances.
Appeals of Decisions
On the question of appeals on complaint decisions the Consultation Analysis states:-
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.
What the Consultation didn’t ask about Complaints and Redress
When it comes to complaints and redress the actual handling and process involved is what concerns most solicitors.
Esther Roberton identified in her Report that the complaints system needed fixing. She said:-
The one area where I found very clear unanimity was on the subject of the complaints and redress process. At every stakeholder event and in the responses to the Call for Evidence, the strongly held view was that the current complaints system is not fit for purpose.
It is essential that the Scottish Government ensure that the complaints handling process is fit for purpose.
The Scottish Legal Complaints Commission Recommendation
Esther Roberton supports the Scottish Legal Complaints Commission recommendation which is:-
We believe the solution is to plot a route from A to B, based on the experience of the consumers and lawyers (in all their diversity) who have to go through this process. The whole process could be reduced to three core stages:
1. A single investigation – ensuring there are a range of flexible options to filter out vexatious and similar complaints and allowing processes proportionate to different levels (£200 or £20,000).
2. Determination – by the same organisation in relation to lower level issues, or by prosecution at the professional tribunal for conduct which may lead to removal from the profession.
3. Appeal – to ensure accountability and meet the requirements of natural justice there should be a single opportunity to appeal at the conclusion of the process.
Mediation to resolve Complaints
Esther Roberton mentions mediation in her Report:-
The Scottish Legal Complaints Commission’s mediation service received praise from different stakeholders including legal professionals as serving both parties in a complaint well.
She went on to recommend that:-
The legislation should require the regulator to develop a complaints handling process for those it regulates. This process should be based on well-established consumer principles and provide appropriate and speedy resolution for all parties. This should include the option of early dispute resolution learning from the Scottish Legal Complaints Commission’s positive experience of mediation services.
At present mediation is offered by the Scottish Legal Complaints Commission as a method of resolving complaints. However, both parties must agree to mediation. Failing agreement to mediate they initiate the investigation and decision making process.
Mediation should be compulsory given the praise the service receives. Resulting in time and expense saved all around. It would save unnecessary lengthy and complex investigation processes that often miss points that might come out in a mediation. It would also open up the potential of sensible solutions that would never be achieved via a determination.
Levies on Determination of Complaints
Imposing levies on law firms following a determination by a Determination Committee needs reconsidering.
A £5,000 automatic fee (unless there is exceptional circumstances) is not necessarily proportionate to all complaints or fair to the law firms it may be levied against.
This fee applies if the recommendation of a case investigator is not accepted and a Determination Committee uphold the complaint.
It appears to be used as a lever by the Scottish Legal Complaints Commission to get law firms to settle on terms that may not be fair and reasonable. Simply on the basis that it avoids the additional £5,000 ‘penalty’ of not settling early. This is both unfair and unjust.
A complainant, on the other hand, is not penalised in any way for bringing a vexatious complaint. Nor, if their complaint is not upheld and was therefore clearly unjustified.
Conclusion and Other Posts in the Series
This blog post concludes the series of five on the Consultation Analysis. The other four are:
- Legal Services Regulation Reform in Scotland: Consultation Analysis Reviewed – Part 1: Overview
- Part 2: The Potential Regulatory Models
- Part 3: Legal Tech
- Part 4: Business Structures
For all blog posts on this topic see: Legal Services Regulation Reform in Scotland
Image credit: Dr David Banner transforming into The Incredible Hulk (1978 TV series) © Universal Television / Marvel Comics
Reactions on Social Media
On LinkedIn the following comments have been made:-
Neil Alan Stevenson (Experienced Chief Executive, Chair and Non-executive Director):
Another great summary. As you pick out, everyone agrees this element can be improved, and in some ways it’s a priority, but as you also allude to, you arguably need to decide the overall regulatory model first. If you’re centralising functions complaints look one way, if you’re keeping the involvement of multiple bodies in each complaint you model it another way.
My main plea is that we ‘flow chart’/’customer journey’ what each element looks like. For example, the SLCC is very pro-mediation and really encourages parties to take part (unless there is a strong reason not to). If it were made mandatory (one suggestion) it could reduce costs (as it does for some cases currently) by not requiring a Determination Committee (DC). But, if parties don’t settle and the Act still requires a DC we add a step, and a cost.
Often we don’t know how people in the system will react before we hardwire something in, then find an unintended consequence. That’s why one of the SLCC’s proposals is more flexibility, with less in the statute and more in rules (which must be consulted on, go to Lord Press, etc.) but which allows a scheme to develop based on experience and experimentation to find the most efficient and effective models in practice.