Explaining to an uninitiated Scots’ lawyer how the IFA complaints’ system works normally produces a look of disbelief and then, when it sinks in, more than a little concern.
Why? Well, because us lawyers are brought up on a solid diet of the rule of law, the burden of proof resting on the accuser, the presumption of innocence, the rules of evidence, fairness and last, but by no means least, the right to appeal against a decision which you think is wrong in fact, in law, or because of bias.
And why do the legal systems both North and South of the border have these features? Because, frankly, without them, we would live in a police state under a tyrannical regime.
While the writ of Magna Carta does not run here in Scotland, its principles in large effect do. I do not for a moment say that the legal system, and in particular the system of court justice, is perfect and flawless because we know that it is not. Mistakes can and do occur. And, yes, it has to be said that the rules can be manipulated to favour one party against the other. But in the overall scheme of things, it is more likely than not that justice will not only be done but be seen to be done.
The judiciary is there to ensure that justice is delivered and, so far as possible, outwith the control and influence of the politicians generally and executive in particular. Imagine, then, the reaction of these same solicitors when told that the Scottish Executive, intent on a “reform” of the system of complaint against solicitors in Scotland, resolved simply to adopt the FOS system to apply in Scotland.
Unlike the IFA industry, where its members feel they dare not raise their eyes let alone their voice against the FSA, I am free and able to say that the Law Society of Scotland, my professional body, is not perhaps my favourite institution.
They may not like me saying that but I have no fear that I will face unwarranted investigation, unfair treatment or the threat of my practising certificate being removed because they do not like me. To give them their due, the society does encourage debate.
Having said that, I thought it necessary to stand up at a recent seminar in Glasgow and warmly and sincerely congratulate the Law Society of Scotland representatives for its very vigorous and very effective defence of the profession when dealing with the Scottish Executive over their intended reforms.
The Legal Profession and Legal Aid (Scotland) Bill is now in its final form to go before the Scottish Parliament. When passed, this will establish the Scottish Legal Complaints Commission which will operate a system of complaints against solicitors in Scotland the main features of which are:
– It will have a board of nine members, a minority of which will be solicitors (who therefore have some understanding of the provision of legal services).
– Appointments will be by the Scottish Ministers under the Nolan Rules and, further, in consultation with the Lord President of the Court of Session, the supreme court in Scotland.
– The system and its rules and procedures require to be compliant with human rights law.
– Its budget will require to be approved of by the Scottish Parliament.
l It will deal with complaints about quality of service pro-vided by solicitors, not issues of professional conduct.
– It will require to sift and reject complaints which are frivolous, vexatious and those without merit.
– A case fee will only be payable if a complaint is upheld, even in part.
– Although the SLCC can award compensation up to 20,000 for loss, inconvenience and stress, it has to apply the relevant law and the level of compensation which a court would award.
– There will be a limited right of appeal against decisions on errors in law, procedural impropriety, irrational exercise of discretion and, most important, if the solicitor feels that the facts do not support the decision. Not only that, if the solicitor wins the appeal. then the SLCC may have to pay his court costs.
Added to that, the Law Society of Scotland now has the opportunity to continue its representation of the profession in the next stage which is formalising the commission’s rules and procedures, along with the Lord President of the Court of Session, such consumer bodies as the SLCC deems appropriate and the Scottish ministers.
I have no idea, as yet, what will be the requirements of training, experience, supervision etc of the case-handlers who deal with complaints but you may rest assured that I have made representations to the Law Society of Scotland of my experiences dealing with the adjudicators within the Financial Ombudsman Service and urging that they seek to ensure that the case-handlers have some training beyond simply operating a phone in a call centre and being able to read a decision-tree flowchart.
I have also suggested to the Law Society of Scotland that, in consultation regarding the rules and procedures of the SLCC, it seek to ensure that all decisions, even on an anonymised basis, be included in a database which can be accessed by complainer and solicitor alike. Why? Simply to avoid the inconsistencies of decision which appear so prevalent with the FOS.
How has the legal profession in Scotland managed to wrest such concessions from the politicians? Simply and only because we are a collegiate profession which, while being fiercely competitive among ourselves for the type of business that we conduct, we do stand together when representing not only our clients’ interests but also our own.
Some readers may recall that four years ago or so I brought together a group of forward-looking IFAs who formed the IFA Defence Union. Despite heroic efforts by Evan Owen, fundamental root and branch reforms are still awaited in the regulatory regime under which IFAs operate.
Take a leaf out of the lawyers’ book – form yourselves into a collegiate profession and argue from a position of strength. That is the only argument that politicians understand.