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Stage 1 Report on the Legal Profession and Legal Aid (Scotland) Bill

Volume 1: Report

CONTENTS

Report

Annex A – Report from the Finance Committee

Annex B – Report from the Subordinate Legislation Committee

Annex C – Extracts from the Minutes

Volume 2: Evidence

Remit and membership

Remit:

To consider and report on matters relating to the administration of civil and criminal justice, the reform of the civil and criminal law and such other matters as fall within the responsibility of the Minister for Justice, and the functions of the Lord Advocate other than as head of the systems of criminal prosecution and investigations of deaths in Scotland.

Membership:

Mr David Davidson (Convener)

Jackie Baillie

Bill Butler (Deputy Convener)

Colin Fox

Maureen Macmillan

Mr Stewart Maxwell

Jeremy Purvis

Committee Clerking Team:

Clerk to the Committee

Tracey Hawe

Alison Walker

Senior Assistant Clerk

Anne Peat

Assistant Clerk

Steven Tallach

Stage 1 Report on the Legal Profession and Legal Aid (Scotland) Bill

The Committee reports to the Parliament as follows—

Introduction

1. The Legal Profession and Legal Aid (Scotland) Bill was introduced in the Parliament on 1 March 2006 by Cathy Jamieson MSP, Minister for Justice.

2. On 8 March 2006 the Parliament designated the Justice 2 Committee as lead committee for this Bill. Under Rule 9.6 of the Parliament’s standing orders, it is for the lead committee to report to the Parliament on the general principles of the Bill.

3. The Justice 2 Committee received reports from the Finance Committee and the Subordinate Legislation Committee. These are attached at Annexes A and B.

Evidence received by the committee

4. The Committee issued its call for written evidence in March 2006 and received around 630 written submissions. The Committee took oral evidence over 5 meetings as follows:

2 May 2006

Caroline Flanagan, President, Douglas Mill, Chief Executive, Michael Clancy, Director, Law Reform Department, Philip Yelland, Director, Client Relations Office, Oliver Adair, Convener, Legal Aid Solicitors Committee and Anne Hastie, Non-solicitor Member, Client Relations Committee, Law Society of Scotland

Valerie Stacey QC, Vice Dean, Faculty of Advocates

Craig Bennet, President, and Ken Swinton, Ex-president, Scottish Law Agents Society

Robert Sutherland, Convener, Scottish Legal Action Group.

9 May 2006

Kaliani Lyle, Chief Executive Officer, Citizens Advice Scotland, and Eileen McKenna, Manager, Airdrie Citizens Advice Bureau

Professor Alan Paterson, Law School, Strathclyde University

Stuart Usher and William Burns, Scotland Against Crooked Lawyers.

16 May 2006

Linda Costelloe Baker, former Scottish Legal Services Ombudsman.

Alistair Cockburn, Chairman, Judith Lea, Clerk, and Mark Irvine, Lay Member, Scottish Solicitors’ Discipline Tribunal

Alice Brown, Scottish Public Services Ombudsman.

23 May 2006

Lindsay Montgomery, Chief Executive, Tom Murray, Director of Legal Services and Applications, and Colin Lancaster, Head of Policy, Scottish Legal Aid Board

Martyn Evans, Scottish Consumer Council

Trevor Goddard and Peter Turrell, Royal and Sun Alliance

Alistair J Sim, Marsh Limited

William Alexander, Stewart Mackenzie and Neil McKechnie

James Clark, Joan Pentland-Clark, Mike Lloyd and Duncan Shields.

30 May 2006

Hugh Henry MSP, Deputy Minister for Justice, Louise Miller, Mike West and Chris Graham, Access to Justice Division, Justice Department, Scottish Executive.

5. All oral evidence and associated written evidence provided to the Justice 2 Committee is included at Annexe D. The Committee also received over 600 written submissions and the Committee has published these submissions on its web page.1 The Committee is grateful to all those who provided evidence. The Committee also wishes to express its grateful thanks to Mrs Margaret Ross, the Committee adviser, for her assistance.

BACKGROUNd and consultation

6. The Bill has two main purposes; firstly it seeks to reform the system for handling complaints against lawyers by the creation of a new statutory body, the Scottish Legal Complaints Commission and secondly it seeks to improve the delivery of all forms of publicly funded legal assistance.

7. The key provisions in the Bill are:

  • A new Scottish Legal Complaints Commission, led by a Board with a non-lawyer majority and a non-lawyer chair, to receive complaints about lawyers which cannot be resolved at source (but with an emphasis on complaints being resolved at source where possible);
  • The new Commission taking over responsibility from the legal professional bodies, the Scottish Legal Services Ombudsman (SLSO) and the Scottish Solicitors Discipline Tribunal (SSDT) for handling complaints about inadequate professional service;
  • The abolition of the office of the Scottish Legal Services Ombudsman as a result of the creation of the Commission;
  • The maximum amount of compensation for inadequate professional service complaints being raised to £20,000;
  • The responsibility for professional discipline remaining with the legal professional bodies and discipline tribunals but the way in which such complaints are handled being overseen by the Commission;
  • First steps towards giving rights of audience and rights to conduct litigation to members of other professions or professional bodies;
  • Transfer of responsibility from the courts to the Scottish Legal Aid Board (SLAB) for granting and terminating legal aid in serious criminal cases; and
  • Enabling SLAB to fund certain advisors other than solicitors to provide advice and assistance.

8. Proposals relating to reform of the handling of complaints against legal practitioners in Scotland were set out in the Scottish Executive consultation document Reforming Complaints Handling, Building Consumer Confidence: Regulation of the Legal Profession in Scotland,2 which was published in May 2005.

9. A Strategic Review of the Delivery of Legal Aid, Advice and Information was announced by the Scottish Executive in 2003. The report of the review was published in November 2004.3 This was followed by a consultation on the proposals for changes in legal assistance in Advice for All: Publicly Funded Legal Assistance in Scotland – the Way Forward,4 published in June 2005.

10. During the first session of the Scottish Parliament (1999–2003), the former Justice 1 Committee undertook an inquiry into Regulation of the Legal Profession.5 It concluded that the best option was to retain the current system of co-regulation but reform it to make it more acceptable and more representative of the public interest. A number of its recommendations have now been implemented by the professional bodies and the Bill also implements a number of that Committee’s recommendations.

general reaction to the Bill

11. Of the submissions received, over 550 were from individual practising lawyers and lawyers’ organisations. Over 30 were from individuals, many of whom had first-hand experience of the current complaints system.

12. Most of the submissions received by the Committee focussed on the provisions in the Bill relating to the creation of an independent legal complaints commission. In general, the principle of an independent body to act as a gateway for consumer complaints was welcomed, although there was a good deal of concern relating to the detail of the Bill.

13. Amongst lawyers, the main issues of concern were safeguarding the independence of the legal profession, the maximum level of award for inadequate professional service (IPS) of £20,000, the lack of a right of external appeal from decisions of the Commission, and the funding of the Commission.

14. Lawyers also had concerns about whether or not the legislation was compliant with the European Convention on Human Rights (ECHR). Under the Bill as it stands, there is no provision for external appeal against a decision of the Commission in relation to a services complaint. Concerns were also expressed about whether the Commission will be sufficiently independent of the government.

15. Many lawyers questioned why the maximum level of compensation in the event of an IPS complaint being upheld by the Commission should be set so high, considering that the current maximum level of award is £5,000. Concerns were also expressed about the inclusion of negligence within the definition of IPS in the Bill. Some respondents expressed concern that, given some areas of law tend to attract a greater number of complaints than others, businesses may decide not to offer services in those areas, leading to legal service ‘deserts’ in rural areas.

16. However, some respondents, including consumer organisations and individuals from a ‘non-legal’ background, expressed the view that the Bill does not go far enough. They believed that all complaints should be dealt with by the Commission. Another concern from many ‘non-lawyer’ correspondents was the representation of lawyers on the board of the Commission. These respondents did not believe that there should be any lawyer representation on the Commission.

17. In relation to legal aid, submissions reflected disappointment that the Bill does not give the Scottish Legal Aid Board the power to award grant funding for the provision of advice and assistance by non-lawyers.

18. These issues are explored in more detail in the sections that follow.

The Complaints Handling Process

Meaning of complainer and complaint

Who can complain?

19. In terms of Section 2 of the Bill, the Commission can receive a complaint of professional misconduct or unsatisfactory professional conduct (a conduct complaint) or a complaint suggesting that professional services provided by a practitioner were inadequate (a services complaint) by or on behalf of “any person having an interest”. In the case of services complaints “any person having an interest” means a person who appears to the Commission to have been directly affected by the suggested inadequate professional services. Section 23 and schedule 3 of the Bill require the Commission to establish rules setting out the eligibility of persons making complaints on behalf of other persons.

20. Any person having an interest will include, for example, third party complainants such as opponents, the other side in a property transaction and witnesses. The written evidence received from non-lawyer organisations generally welcomed the widely drawn definition of a relevant complaint as including any expression of dissatisfaction by any person directly affected. The former Scottish Legal Services Ombudsman (SLSO) noted that the Bill adopts her working definition of eligible complainants which she saw as an inclusive definition allowing the fair examination of all complaints relating to professional practice.6

21. However, many practitioners expressed considerable disquiet about this provision. There were concerns that as a practitioner’s work is adversarial by nature, lawyers and advocates are expected to fight their client’s corner without concern for the opposing party. Practitioners believed that the Bill’s provisions could hamper the way the present adversarial system works.7 Complainants would not have a right of access to the information that a practitioner holds about his or her client and issues clearly arise when considering disclosure of documents to complainants who may be on the opposing side in a dispute. The Procurators Fiscal Society noted that its members would have particular difficulties with confidentiality if a third party had the right to complain about their decisions. The Procurators Fiscal Society, the Faculty and a number of court solicitors who responded were concerned that accused, complainers and witnesses who were unhappy with the outcome of a case could make a third party complaint.8

22. Many practitioners felt that the range of potential claimants was too wide and could encourage unpredictable, unfounded, unscrupulous or multiple complaints. The Legal Defence Union (LDU) and others comment that it is the purpose of the law to impact on people and for that reason it was not in favour of including by definition all those people affected by the actions of a practitioner.

23. The former SLSO suggested an alternative means of dealing with third party complaints, which she felt had been successful in her office. She felt that the Bill should state clearly that the Commission has a duty to protect clients’ confidentiality in the circumstances of a third party complaint.

24. The Committee welcomes the wide definition of potential complainants under this Bill, but in doing so recognises that issues arise in the case of third party (non-client) complaints. The Committee asks the Scottish Executive to consider those concerns raised and report back to the Committee with its views on how best to address these, prior to Stage 2 consideration.

When complaints can be made

25. The Bill’s policy memorandum states that the new body will be a gateway to receive any complaints about practitioners which cannot be resolved at source.9 Section 3 of the Bill makes clear that a complaint will be regarded as premature by the Commission if the substance of the complaint has not been communicated to the practitioner and the practitioner has not been given what the Commission regards as a reasonable opportunity to deal with the complaint.

26. The Committee notes that recent practice rule changes also mean that the Law Society requires all firms to have a client relations partner whose job it is to attempt to resolve these complaints at source. The Committee understands that smaller firms or single partner firms may not have a client relations partner. It is not clear whether the changes to the practice rules have had any real impact upon the numbers of complaints made against lawyers. Executive officials have also expressed the view that the proposed funding arrangements, and the complaints levy in particular, are designed to provide an incentive for complaints to be resolved at source.10

27. Section 23 allows the Commission to establish rules to set time limits for the disposal of any complaint made against a practitioner, the extension of any such time limit fixed and the circumstances in which such an extension might be made. There is no requirement for the Commission to make such rules but the provision is there for the Commission to do this, should it so decide after consultation with the Scottish Ministers, the relevant professional organisations and such groups of persons representing consumer interests as the Commission considers appropriate.

28. The Committee agrees that every effort should be taken to resolve complaints at source and recommends that both the Law Society and the Faculty should work with their members to facilitate improvements to the current arrangements. The Committee notes that this can be particularly problematic for advocates and for sole practitioners and the Committee suggests that the professional bodies examine this issue and work with their members to encourage more effective complaint handling and resolution at or near source.

Initial steps to be taken in handling complaints

Preliminary Steps

29. Where the Commission receives a complaint it must, as a first step, determine whether the complaint is frivolous or vexatious. In the event that it is either or both, it must reject the complaint and notify the complainant accordingly.

30. We were told by Scottish Executive officials that it is not possible to give a clear definition of a frivolous or vexatious complaint and that it will be a judgement for the Commission to make in each case, taking into account the content of the complaint, what substance there is to it and whether there is any vindictiveness.11

31. Most written submissions from the profession expressed concerns about this provision.12 As noted further on in this report, in the section on funding, the Commission will stand to gain by admitting a complaint because the complaints levy will then be receivable and will thus generate funding to cover the Commission’s running costs.

Services and Conduct - Issues

Determining the Nature of the Complaint

32. Where a complaint is neither frivolous nor vexatious, the Commission must then determine whether a complaint is a conduct or a services complaint or whether the complaint contains issues of both conduct and services and, if so, to what extent. Where in the view of the Commission, a complaint contains issues of both conduct and services (a hybrid complaint) the Commission must “consult, co-operate and liaise with the relevant professional organisation and have regard to any views expressed by the organisation” 13 before determining the category or categories in which to classify the complaint.

33. The distinction between issues of conduct and services is a particularly important one because it is this distinction (made by the Commission) that will determine what power the Commission has to deal with a complaint, what complaint mechanism is followed and what rights of redress there will be for the complainant.

34. We were told that the distinction between conduct and services was first made in 1988 with the introduction in legislation of the concept of inadequate professional services and, since then, the Law Society has made such a distinction when handling complaints.14 In contrast to this, the Faculty does not make that distinction and indeed Valerie Stacey stated that such a distinction “is rather difficult to make”.15

35. The Bill carries forward the distinction made currently by the Law Society but makes provision for services complaints to be dealt with solely by the Commission, instead of the professional bodies as happens at present. The Bill proposes that conduct complaints will continue to be dealt with by the professional bodies but with the new Commission having oversight powers in relation to the professional bodies’ handling of the conduct complaints. The oversight arrangements are dealt with in more detail in the section on handling conduct complaints further on in this report.

36. The concern expressed by the Faculty about the difficulty in making the distinction between conduct and services was also made by many of our other witnesses.16 The former SLSO could not understand “why a system that is muddied and confused and which does not work has simply been imported into the bill”. In her view, when trying to reach a determination in relation to hybrid complaints, the required consultation, co-operation and liaison between the Commission and professional bodies was unlikely to happen smoothly.17 The Committee notes the differing views that have been expressed as to how easy it will or will not be to classify complaints under either conduct or services.

Definitions of Conduct and Services Complaints

37. The Bill states that a conduct complaint is any complaint suggesting professional misconduct or unsatisfactory professional conduct. A definition of unsatisfactory professional conduct is given in the Bill. The professions themselves are responsible for setting standards of conduct and it is not always clear-cut what these are.18

38. The Bill gives a definition of inadequate services and states that this “includes any element of negligence in respect of or in connection with the services”.19 The Committee heard evidence on what types of issues could be regarded as conduct or services issues. We were told that the range of matters falling under the heading of conduct could be quite wide, for example dishonesty, conduct unbecoming, grossly excessive fee charging, acting in a conflict of interest situation, failing to comply with accounts rules, not acting in the best interests of the client, or failing to act on the basis of proper instruction. Examples of services issues might be where the consumer feels a bad job was done, that there has been an error, for example in executry or conveyancing work, or that there is an allegation of poor performance.

39. The Scottish Solicitors Discipline Tribunal (SSDT) stated that there is a clear distinction between, on the one hand, misconduct which has overtones of competence and morality as determined by the profession, and, on the other hand, inadequate professional services which would concern individual performance standards.20 This distinction however was not as clear to other respondents and witnesses. For example, in the view of Scotland Against Crooked Lawyers (SACL), inadequate professional services would cover anything and everything that can happen to a lawyer’s clients.21 The Committee also heard a number of concerns about the inclusion of negligence within service complaints, and these concerns are dealt with in detail later in this report.

40. In evidence, the Scottish Public Services Ombudsman (SPSO) stated that her experience was that it was often difficult to know on initial receipt of a services complaint whether it will lead to a much more serious issue of misconduct as more information is uncovered while investigating the complaint. In her view there is ambiguity in the Bill as to how cases that involve elements of both conduct and services will be dealt with. She suggested giving the complainant a degree of choice in determining which resolution route to opt for.22

41. The Legal Defence Union (LDU) suggested that given the likelihood of hybridity, consideration should be given to having a single process of examining the factual history, leaving determination of services or conduct issues arising to the professional bodies to avoid double jeopardy or a double process.23

42. The Scottish Executive recognised that there are grey areas, for example acting in a conflict situation may be a conduct matter, but if the resulting service is poor, it will be a services matter. The Committee notes that the Deputy Minister has offered to reflect on whether the Commission should handle the services element of any “hybrid complaint” after which any conduct element could be referred on to the professional body.24

43. Nonetheless, given the difficulties that might well arise when making the distinction between conduct and services, much of the evidence presented to the Committee from non-lawyers was in favour of the Commission dealing with all complaints, and this evidence is outlined more fully below.

Allegations of Criminal Conduct

44. In written submissions, a number of individuals noted that confusion exists around whether conduct that may be criminal in nature will be referred by the professions to the police. Reference was made to a Memorandum of Understanding between the police and the Law Society and to seemingly conflicting accounts as to its effect. Concerns were expressed that police will not accept and investigate an allegation of criminal conduct against a solicitor unless this comes from the Law Society itself. ACPOS also sought clarification on the issue of referral by the SSDT or regulatory body as it did not feel the Bill makes that clear.25

45. The Committee notes the concerns and the degree of confusion that seems to exist and therefore seeks clarification from the Minister on the current procedures for the reporting and investigation of conduct of an alleged criminal nature.

Evidence in favour of the commission dealing with all complaints

46. The suggestion that a new body would handle all complaints was not one of the options consulted on by the Scottish Executive in Reforming Complaints Handling, Building Consumer Confidence: Regulation of the Legal Profession in Scotland.26 Nevertheless, many of our witnesses were of the view that this would be the best way to proceed.

47. The Scottish Consumer Council (SCC) stated that it was difficult for consumers to make the distinction between conduct and services complaints.27 Although it could see merit in allowing any profession to discipline its members and set standards of conduct, it believed there is a clear lack of confidence in the profession examining whether its members have conducted themselves according to the rules.28 In addition to dealing with conduct and services complaints, it suggested also that complaints about fees, currently dealt with by a process of Taxation by the Auditor of Court, should be a matter for the new Commission.

48. Our oral evidence from individual consumers of legal services also expressed concerns about leaving conduct complaints with the professions. Individuals felt that the Bill rectifies few, if any, of the problems it purports to address, that the legal profession has had too much control for too long, that the public feel alienated29 and that there is an inherent conflict of interest in the professions continuing to deal with complaints of alleged misconduct.30 Individuals stated that including conduct complaints in the remit of the Commission is essential for customer confidence in a new system, if it is not to be another means of lawyers protecting themselves. For these reasons, all individuals whom the Committee spoke to were of the view that the Commission should deal with all complaints, whether in relation to services, conduct or negligence.

49. The former SLSO was also in favour of the new Commission dealing with all complaints but with the caveat that professional bodies could retain the role for dealing with complaints about solicitors’ private actings. She explained that in 2002, the Law Society changed its codes of conduct to include all members of the Law Society and not just those with practising certificates. This change meant that the Law Society was able to invoke the complaints system in relation to what a solicitor does in his or her own time. In her view, it is “perfectly reasonable that professional bodies hold on to such complaints, investigate them and mount a prosecution to the tribunal”31 but she felt that complaints about lawyers’ provision of legal services to their customers should all fall to be dealt with by the Commission.

50. She thought that having a dual process for dealing with complaints could lead to delay, increased confusion and possible replication for all parties. In her view, the term professional misconduct is a feature of a “private members organisation” and she states that removal of conduct issues to the Commission, with benchmarks of “adequate professional practice” and “fitness to practice” (definitions favoured by Which? also) would not impinge on professional independence.

Evidence against the Commission dealing with all complaints

51. Most of the written evidence, with some exceptions, indicated support, or qualified support for the principle of having an independent body as a gateway for consumer complaints. This acceptance came from all categories of respondent, with the exception of the Faculty of Advocates, which expressed opposition in principle to the proposed departure from the principle of self-regulation. The Faculty is concerned that this will undermine the independence of the profession.32

52. The Faculty stated that it recognised that both clients and lawyers about whom any complaint is made must have confidence in any complaints system. Complaints against Faculty members are now dealt with by committees of which half the members are lay members and half are advocates. The Vice Dean of the Faculty went on to say that it is necessary for people dealing with complaints to have expertise about the work of advocates, because in order to decide whether somebody has done something right or wrong, it is essential to know what they are supposed to have done. For those reasons (and others e.g. non-compliance with ECHR), the Faculty was not in favour of any complaints being dealt with by the Commission as described in the Bill.

53. Instead, the Faculty proposed that there should be a completely independent appeals body to which either the practitioner or the person making the complaint could appeal after the complaint had been dealt with by the relevant professional body. Adoption of this proposed model would mean that complaints would stay with the professional bodies but that an appeal by either party would be available to a completely independent body.33

54. The Law Society states that it supports the policy behind the Bill in creating an independent Commission to deal with service complaints. It agrees with the proposal in the Bill that the Commission should not deal with conduct complaints but does not agree that it should deal with issues of negligence, as envisaged by the Bill.

55. The Law Society states that there is a big difference between services and conduct complaints and the idea that conduct complaints would be handled by an independent body was never consulted on. Had the Society been asked whether both services and conduct complaints should be dealt with by any new body, it would have not been in favour. In the view of the Society, if complaints are to be dealt with under one roof, then that one roof should be that of the professions.34

56. Alistair Cockburn from the SSDT stated that, in his view, the Tribunal would be happy to keep conduct matters. He thought that as appeals on issues of services are a burden for the Tribunal, he would be happy for the Commission to take such cases.35

57. The Scottish Law Agents Society (SLAS) was also in favour of the professional bodies retaining responsibility for dealing with conduct complaints. SLAS, the SSDT and most practising lawyers and firms of solicitors who made written submissions were of the view that the essence of a profession that sets standards for itself is that it should enforce those standards as a matter of discipline and that services complaints are a different breed from those that involve conduct.36

58. Clearly, the vast majority of the evidence received from members of the professions and the professional bodies themselves was that issues of conduct and issues of discipline relating thereto should remain with the professions.

59. In evidence, the Deputy Minister stated that he saw no reason to “burden the Commission with all complaints in the first instance”. He maintained that as the aim of the Bill was to make it as easy and straightforward as possible to process and expedite complaints, and believed that the Bill struck the right balance.37 In his view it would be a huge step to give the Commission responsibility for all complaints, especially as conduct complaints can lead to disciplinary action, whereas the role of the Commission should be to provide redress. The Deputy Minister believed that to give the Commission responsibility for all complaints would fundamentally change the nature of it, and take it into very different territory.38

Other options proposed

60. In his evidence, Professor Alan Paterson of the University of Strathclyde proposed that the Commission or an ombudsman should act as a gateway for all complaints, with the bulk of complaints being passed to the professional bodies to deal with, but with a small minority being retained.39 This was what had been proposed by the former Justice 1 Committee in its inquiry.40 Such a model would represent effective co-regulation. It would involve an external independent body (the Commission or Ombudsman) to undertake a sift of complaints, give direction and how complaints were handled. If necessary, it could review the professional bodies’ decisions although this should not extend to issues of conduct which, in Professor Paterson’s view, should still be referred to the SSDT. The key strengths of this model would be the perception of independence, greater consistency and lesser cost than what is proposed in the Bill.

61. The former SLSO stated that whilst Professor Paterson’s model was a step in the right direction she did not feel that it would be the best solution. She was of the view that the model had not worked so well in similar jurisdictions because the working relationship between the post holder and the professional bodies can break down.41

62. In the former SLSO’s view, the responses to the Executive’s consultation came out clearly in favour of complaints handling being removed from the professions and neither what is presently in the Bill, nor the model proposed by Professor Paterson, does that. For her, the important issue is independence of regulation, separate from complaints handling. As complaints can only be assessed against known standards of adequate practice, a fundamental weakness in the Bill is that such standards will still be set by the professional bodies. Her preference was for an independent regulatory body to make decisions about inadequate practice.42

63. The LDU suggested that there was merit in the Commission overseeing the fact-finding of all conduct complaints, after which it would refer to the professional body or the SSDT for sanctions for any misconduct.43 The SLAS suggested that the Commission is given discretion to deal with low level conduct cases as services complaints and not refer them on to professional bodies, for the reason that solicitors adopt a more defensive attitude when defending professional practice.44

Committee views

64. The Committee is of the view that the following must be regarded as priorities for the handling of complaints; independence (including the perception of independence from both the government and legal profession), confidence of members of the public, complainants and the legal profession, and that it is fair, speedy, simple, transparent and cost-effective.

65. Given that the proposals for complaints handling are central tenets of the Bill, the Committee believes that it is important to consider carefully the evidence received on the efficacy of separating out conduct and services complaints and whether having a dual system that leaves conduct complaints with the professional bodies meets these priorities.

66. The proposal put forward by the SCC and individuals that the Commission should deal with all complaints that cannot be resolved at source has the benefit of being simple, transparent and independent. However, this proposal is not supported by the professional bodies. Similarly, the former SLSO’s suggestion that the Commission should deal with all complaints (with the exception of private actings) was not supported by the professional bodies themselves.

67. Professor Paterson’s proposal that a Commission or Ombudsman should act as a gateway for all complaints, passing the bulk on but handling a sample, monitoring (including reviewing the substance of decisions) and giving direction on how complaints should be handled, would again provide the perception of independence but is not supported by individuals or the professional bodies. As previously stated, the success or otherwise of this model will rest to some extent on the establishment and maintenance of good working relationships between the professional bodies and the Commission or Ombudsman.

68. The LDU suggested that the Commission should carry out fact-finding in relation to all complaints and then refer issues of conduct to the professional body or the SSDT. This still retains a role for the professional bodies in conduct complaints but envisages a significant role for the Commission and clarity for the consumer.45 This model would provide a greater degree of independence than what is proposed in the Bill, but the Committee notes that this could be less cost-effective.

69. The Faculty proposes that complaints should be dealt with by the professional bodies themselves, but that following determination, there would be an avenue of appeal by either the complainer or the practitioner to an independent body.46 This suggestion could be relatively simple and cost-effective but would not meet the very concern that the Bill seeks to address of having a transparent complaints system, independent of the legal professional bodies.

70. In principle the Committee, by majority,47 agrees with the separation of conduct and services complaints as proposed in the Bill. However, the Committee acknowledges that opinion is divided and that there may be practical difficulties in implementation. Clearly there will be some complaints that can quite straightforwardly be categorised as either a complaint about conduct or about services. Equally clearly, there will be a number of complaints that contain issues of both conduct and services. There might also be complaints without dominant features of either sort, which could not be categorised without considerable enquiry. The Committee asks the Executive to set out clearly how the distinction between conduct and services complaints can be applied in practice in order to achieve the objective of the Bill to build public confidence in the complaints handling process.

71. For complaints falling potentially within both categories, the Committee seeks confirmation of how a decision will be reached. It may be that following consultation, co-operation and liaison with the relevant professional organisation, there is still disagreement between the Commission and the professional body about how a complaint should be handled. The Committee suggests that the arrangements for dealing with any such disagreement should be clear and set out on the face of the Bill.

Processing Complaints

Dealing with conduct complaints

72. Once a complaint has been categorised as a conduct complaint, section 5 of the Bill requires the Commission to remit it, or that element of any complaint that relates to conduct, to the relevant professional body to deal with and advise the complainer accordingly.

73. In the case of a complaint against a solicitor, it is then for the Law Society through its reporter system and thereafter the professional conduct committee (which comprises 50% solicitors and 50% lay members) to decide whether to appoint somebody to prosecute the matter before the Scottish Solicitors’ Disciplinary Tribunal. The professional conduct committee need not seek prosecution before the SSDT and may reach some other view but the Committee was advised by the Law Society that it was in fewer than five cases last year that a matter constituting professional misconduct was noted rather than prosecuted.48

74. The Society and its committees have no power at present to make a finding of professional misconduct. Where misconduct is suspected, the matter can be sent to a fiscal to prosecute before the SSDT and determine misconduct. Under section 38 of the Bill the SSDT is empowered to award compensation of up to £5,000 in relation to misconduct and this issue is dealt with later in the report.

75. In the case of a complaint against an advocate, it will be dealt with by a complaints committee which comprises 50% advocates and 50% lay members. The Committee notes the Faculty’s evidence that it operates differently from the Law Society, is a much smaller body and that its members do not handle clients’ money.49

76. After the professional body has dealt with the complaint, the Commission will be able to, on a complaint being made to it, examine the manner in which the complaint was dealt with. The Commission will have the role of monitoring practice and identifying any trends in practice which may be give rise to complaints and the way in which complaints themselves have been dealt with. The Commission may make recommendations about the professional bodies procedures for and methods of dealing with complaints received.

Dealing with a services complaint – mediation

77. In the case of a services complaint, the Commission has the option of offering to enter into mediation, if both the complainant and the practitioner accept the offer. Most evidence welcomed this provision, in particular, Core Mediation stated that mediation should be actively encouraged at every stage in the complaints process including in relation to conduct matters.50 However, there was concern on the part of SCOLAG that this could result in the Commission no longer being independent of the two parties.51 The Scottish Mediation Network also noted this potential conflict of interest and suggested that the Commission should offer to arrange for independent mediation.52 Professor Paterson was of the view that there could be difficulties in the Commission mediating and adjudicating on the same complaint and that it would be essential for the two processes to be kept separate within the structure of the Commission.53

78. Although the principle of mediation was welcomed, many respondents felt there was a lack of clarity as to the process of mediation on offer and were concerned to ensure that those providing the mediation would have to have the requisite skill and training.

79. The Deputy Minister stated that he did not feel there was any conflict of interest in the Commission making an offer to enter into mediation, to encourage people to talk to resolve their conflicts and that “an attempt to encourage mediation would not prejudice a subsequent rigorous investigation by the Commission”.54

80. The Committee is very supportive of the principle of mediation but notes that it must be consensual and undertaken by someone other than the person who deals with and is involved in making a ruling on the complaint. The Committee seeks an assurance that the structure of the Commission will allow for the clear separation of mediation responsibilities from those of complaints handling and adjudication.

Dealing with services complaints - investigation

81. The Commission will have responsibility for investigating, and after giving the complainer and the practitioner the opportunity to make representations, making the decision on any services complaint. The expectation of the former SLSO is that the Commission would be inquisitorial in nature. This contrasts with the adversarial system presently used in Court and by the Law Society involving each side presenting all its evidence which is then disclosed to both sides to fight it out. Such a process is, in the view of the former SLSO, bureaucratic, it takes a long time, is potentially costly and places a great burden on an individual complainant.55

82. Where the Commission does uphold a services complaint, it can do any of the following: (a) determine that the amount of the fees and outlays for services to which the complaint relates, is to be nil or such other amount as the Commission may specify; (b) direct the practitioner to make good, at his own expense, any error, omission or other deficiency; (c) direct the practitioner to take such action, at his own expense, as the Commission may specify; (d) direct the practitioner to pay compensation of such amount, not exceeding £20,000, as the Commission may specify. Such compensation can include an amount for loss suffered or inconvenience or distress caused to the client as a result of the inadequate professional services. These compensation provisions are examined later in this report.

Funding arrangements for the Commission

General

83. The Financial Memorandum states that the running costs of the Commission will be £2.2m for financial year 2008-09 and £2.4m per annum for financial year 2009-10 onwards.56 Professor Paterson told the Committee that the Commission will be more costly than the current system.57 The former SLSO believes that the Commission will be larger than necessary.58 Many practising lawyers commented that the Scottish Executive had not carried out a cost/benefit analysis and that there is a risk of the costs spiralling. Many commented that the current Law Society complaints handling function is kept to a reasonable cost by the use of reporters and members of sifting panels (with a restricted fee paid to those involved) and questioned how the Commission would secure such expertise.59

84. The Law Society is concerned that there is a “fundamental lack of financial accountability” in relation to the Commission and suggests that a body such as Audit Scotland should be involved in its budget setting process. There are fears in the profession that the new body might be able “to write itself a blank cheque”.60 The Faculty agrees with this view.61

85. There is a duty on the Commission to consult the professional bodies on its annual budget. However, the Law Society argues that the professional bodies must be given the right to reject the budget, “otherwise this is effectively taxation without representation”.62

86. As noted later in this report, the Finance Committee also recommended that there should be “a more effective power of strategic financial scrutiny over the costs of the Commission to avoid the creation of a needless bureaucracy”. The Committee explored this issue with the Minister, who spoke of striking a balance between intervening to avoid the Commission becoming “an inordinate burden” and ensuring “the Commission’s independence from political interference”. He gave a commitment to reflect on the concerns expressed.63

87. The Committee shares the concerns of the professions that the Commission should be required to have robust financial accountability provisions in place. The Committee also recommends that the Commission should be subject to regular auditing by an independent body in order to ensure that it is fully accountable.

Levies

Background

88. The current complaints handling arrangements are funded by members of the professional bodies through subscriptions. The office of the SLSO is funded by the Scottish Executive. The policy memorandum states that it is intended that the profession should continue to fund complaints handling with the Executive funding the start-up costs of the Commission.64

89. It is proposed that funds will be obtained for the new Commission by two levies – an annual levy on all practitioners and a complaints levy to be paid by practitioners against whom an eligible complaint has been made. The levy is not payable for complaints which the Commission deems to be frivolous, vexatious or otherwise ineligible in terms of its rules.65 It would be for the Commission to decide the proportion of funding that each type of levy will contribute and then to set the amount of each levy for each financial year.66 The financial memorandum to the Bill notes if 50% the estimated costs of the Commission were met from the annual levy of 10,000 practising legal practitioners, and 50% from the complaints levy (based on an estimate 4,000 complaints) then the annual levy would be £120 and the complaints levy would be around £300.67

90. The Executive told the Committee that the charging structure is modelled on the financial services industry. The Financial Ombudsman’s Service (FOS) complaints levy is £300 with the first two complaints per year being without charge.68

91. The Law Society believes that the Executive should continue to provide the £400,000 per annum currently used to fund the Ombudsman’s office to contribute towards the cost of the Commission “not least to enforce the independence of the Commission”.69 Other witnesses supported this view.70

Annual levy

92. SLAB and the Law Society pointed out that public sector lawyers will have to pay the annual levy despite not being likely to be the subject of complaints. The Law Society believes that the “taxation nature of the levy is unfair”.71 Many practising lawyers (including large commercial firms against whom there are few complaints) said that the existence of the annual levy would drive lawyers not to take out a practising certificate and to concentrate on work that can be done without one, thus reducing the number of practitioners left to pay for the new system.72 These concerns are dealt with later in the report in the ‘Access to Justice’ section.

93. The Law Society acknowledged that the cost of a practising certificate will be reduced because about 50 per cent of the work of the client relations office will be reconfigured.73

94. The Committee supports the concept of an annual levy, provided that the robust accountability controls recommended above are put in place. The Committee notes that the Commission is required to consult with the professions in setting the amount of the annual levy and believes that if this consultation is conducted in a meaningful way, and if the financial controls referred to above are put in place, then the levy should not be excessive.

95. Although the precise figures are not yet known, the Committee notes that the reduction in the cost of a practising certificate could potentially offset (at least to a certain extent) the cost of the annual levy.

Complaints levy

96. According to the policy memorandum, the complaints levy would be a charge for a dispute resolution service being provided by the Commission.74 The Executive explained that the complaints levy is also designed to be an incentive to lawyers to reduce the number of complaints made against them.75

97. The Executive was concerned that if a lawyer only had to pay the levy for successful complaints, the Commission would have a financial stake in upholding complaints.76 The former SLSO supported this view.77 However, a significant number of practising lawyers who submitted written evidence noted that the Commission will stand to gain from admitting a complaint because that will trigger the complaints levy. They consider this to create a conflict of interest between the Commission and the practising lawyers complained against.78

98. The SCC supports the complaints levy and its aim to encourage local resolution of complaints,79 while the former SLSO supports the complaints levy being charged as a “case handling fee”.80

99. However, many witnesses were of the view that the proposal for a complaints levy payable for all eligible complaints was unfair and that practitioners should only be charged if the complaint is upheld.81 The proposal appears to the Law Society to be “against most tenets of natural justice”.82 The Society suggested that “funding should be skewed towards the whole profession, but an element of it could come from a true polluter pays system”.83 Most of the practising lawyers who wrote to the Committee complained about the unfairness of the proposal. They agree with the polluter pays principle, but consider that the proposed scheme goes too far, because it does not attach any weighting to those against whom complaints are upheld.84

100. The Opinion obtained by the Faculty of Advocates suggests that this levy is “manifestly unfair” and may not meet the ECHR requirement or proportionality in balancing individual and collective interests.85Equally, SACL opposes a complaints levy for all eligible complaints and supports the polluter pays principle.86 A number of individuals concurred.87 SACL also suggested that the complainer should pay if the complaint has no merit,88 and a number of written responses suggested that the complainer should pay a deposit returnable if the complaint is upheld, particularly if the complainer is a third party. However, the Minister was opposed to the suggestion that the consumer should pay at all and felt that it would deter people from making genuine complaints.89

101. SLAB warned the Committee that the complaints levy will encourage complaints from clients on the basis that the solicitors will then have to pay the levy.90 The Law Society told the Committee that the system has the potential to be a “blackmailer’s charter”.91 Many practising lawyers concurred that the existence of the levy could effectively blackmail a solicitor complained against to reduce or waive the client’s fee to avoid a costly complaints process.92

Power to vary levies

102. The Commission has a power under section 20 of the Bill to vary the complaints levy to take account of certain circumstances. In evidence to the Committee, Scottish Executive officials stated that the complaints levy “would have to be chargeable regardless of the outcome….effectively, the practitioner is paying a charge for a dispute resolution service because he or his firm has been unable to resolve a dispute”.93 Officials noted that the Commission could charge differential levies, but that this would be a matter for it to determine. The Minister confirmed that either the complaints levy or the annual levy could be set at zero if the Commission so decided. The Minister’s main concern was that the Commission’s annual budget was “coherent and robust”.94

103. The Executive acknowledges that complaint rates are higher in some sectors of legal practice than in others and told the Committee that the power to vary the complaints levy is partly intended to allow the Commission to address that.95 That power could also, according to officials, extend to whether the complaint is upheld and issues such as what the levy should be for lower value or less profitable work.96 The Executive also acknowledged that there might be a need to reduce the relative financial burden on firms in more remote areas and to have cross-subsidy in the system.97 SCOLAG agreed that “certain groups will end up paying more than others” and felt that the scope for differential levels of fees to be paid should be considered.98

104. SLAS supported the FOS model of charging, where the first two complaints are dealt with free of charge.99 James Clark suggested that the levy should be set on a sliding scale according to the seriousness of the complaint.100 SLAS pointed out that the complaint could be made by a third party, for example the opponent, to whom the practitioner owed no duty of care.101 The former SLSO agreed that a third party complaint should not have a complaints levy attached “because that is the area in which it is possible to do mischief”.102

105. A number of in-house lawyers who responded in writing sought exemption from the scope of the Bill (and the levies). They comment that they have only one client (their employer) who is not likely to complain externally but would deal with any failings by internal discipline. The PFS noted that it is subject to the Scottish Public Services Ombudsman jurisdiction.103 The Scottish Association of Law Centres also sought exemption from the scope of the complaints levy. It commented that most of their services are free at source on a grant funded basis and that they deal mainly with issues such as housing or mental health which could lead to a disproportionate number of third parties affected by lack of success in the outcome of representation seeking to take a complaint to the Commission.104

106. The Minister stressed that it is for the Commission to decide how to operate the complaints levy. This will be done in consultation with interested parties. He noted that the Commission has the option not to charge for a complaint if it is not upheld. The Minister confirmed the Executive’s original policy intention of providing an incentive to firms to improve practice, resolve issues and avoid complaints. However, he said that the Executive was prepared to listen to the arguments in relation to the complaints levy and reflect on them at stage 2.105

107. The Committee notes that the Bill provides in section 19 that a practitioner must pay to the Commission a contribution in relation to any complaint that the Commission has mediated, or investigated, regardless of whether or not the complaint is upheld. The Committee has difficulty in reconciling this with the Minister’s view that the levy could be set at zero and seeks clarification on this point in advance of the stage 1 debate.

108. The Committee, by majority, believes that a complaints levy should be payable only where a complaint is upheld and that the Bill should be amended accordingly. The Committee believes that a true ‘polluter pays’ system should only penalise those who breach the relevant standards. The Committee notes that this approach may result in the need for a higher general levy.106

Negligence and compensation for Inadequate Professional Services

The inclusion of negligence within inadequate professional services

109. In Scotland, negligence is governed by the law of delict and can be handled by the courts or settled out of court. Section 34 of the Bill states that IPS complaints investigated by the Commission can include an element of alleged negligence in respect of the services in question. The maximum compensation available through the Commission for an upheld IPS complaint (and therefore any element of negligence) is £20,000. The Executive stated that these provisions are the result of a policy decision to allow the Commission to handle moderate-value negligence claims.107

110. The Executive told the Committee that the purpose of these provisions is to provide complainers with readier access to redress in relation to negligence complaints. It was felt that taking the matter to the courts can be expensive and lengthy (although the complainant’s right to go to court has not been removed). The Executive further explained, “we are talking really about an alternative dispute resolution mechanism for more moderate claims in which the cost-risk balance of going to court might be more difficult”.108

111. The Law Society, the Faculty and most practising lawyers who responded in writing expressed great concern about the inclusion of negligence in the Commission’s remit. They cited in support of its exclusion the complexity of the law of negligence, its proper place within the court and legal system, and the right of all members of society to have claims of negligence against them determined in a court. Many respondents referred to the need for any claimant in negligence to have proper legal advice to make a negligence claim, to be able to prove a duty of care, breach of that duty and resultant legitimate losses, and for the courts to generate judgements in the public domain so that they can establish precedent for future assessment of liability and value of claims.109 The opinion sought from senior counsel by the Faculty stated that negligence disputes may well be strongly defended because of “the stain on professional character and reputation carried by a finding of negligence”.110

112. Royal and Sun Alliance Insurance PLC (R&SA), the lead insurers for the master policy (discussed in detail below), suggested that complaint handlers would require training in the law of negligence and that expert evidence should be admissible in evidential hearings on cases involving negligence. They also noted that Commission involvement in the field of negligence may cause complication or confusion where there are multiple claimants or non-solicitors involved in the negligence complained of.111 Many practising lawyers indicated that it would not be acceptable for findings of negligence to be recorded against them unless the process observed procedural fairness and followed established rules of law, particularly the law of delict.112

113. The SCC and Which? are happy with the inclusion of negligence in IPS complaints. The SCC stated that previously the client had to pursue negligence through the master policy or the courts which was a “costly and slow process”.113 SLAB supported this view.114 SACL confirmed that it has no confidence in the court system and described going to court as “a waste of time…the gravy train runs on and on and the amount involved comes to a fortune”.115

114. The SCC also stated that it was difficult to find a solicitor to pursue negligence cases against another solicitor.116 R&SA and Marsh Limited disputed this, stating that claims are frequently made on the master policy by solicitors on behalf of their clients against other solicitors.117 The Law Society also challenged this stating that currently around 10 per cent of solicitors’ firms are actively pursuing claims on behalf of clients under the master policy.118 However, as noted below in relation to the master policy, Stewart Mackenzie highlighted comments from the former SLSO that there is a problem with people’s ability to get solicitors to sue other solicitors. 119

Increase in compensation levels

115. The Bill proposes to increase the maximum compensation level for IPS (including negligence) from £5,000 to £20,000. The SCC welcomes the increase in limit for its deterrent effect on poor service, but considers that any limit on negligence claims before the Commission is arbitrary.120 SCOLAG also supports the increase and suggests that there should be no preset limit as clients might still need to pursue a complaint through the Commission and the courts if the loss suffered is thought to be more than £20,000.121 Similarly, SACL and a number of individuals believe that there should be no ceiling on compensation levels.122

116. Some witnesses would have preferred the maximum level of compensation to be higher than £20,000. Stewart Mackenzie suggested an upper limit of £50,000. He believed that the threat of a substantial fine could act as a deterrent to poor service. However, he conceded that the proposed maximum level of £20,000 should “encourage the profession to get its act together”, resulting in fewer complaints.123

117. Professor Paterson agreed that “a fair complaints system will cover the vast bulk of negligence claims” but suggested an upper limit of £10,000 with claims above that value going to the courts.124 Similarly, SCOLAG suggested that the Commission could be involved in cases up to the value of the self insured or “excess” level of a solicitor (which currently stands at £6,000) with matters involving a larger sum being dealt with by the courts.125

118. The Law Society stated that “the profession now faces, within a 24-month to 36-month period, a twenty-fold increase in penalty”.126 The Society told the Committee that in the short time that the compensation levels have stood at £5,000, the maximum pay out has been £3,200.127 The average pay out last year was £474. Sometimes the solicitor has been ordered to pay compensation and refund fees resulting in higher pay outs. By way of example, the Law Society stated that one particular refund of fees amounted to about £24,000.128

119. With few exceptions, the practising lawyers who responded in writing noted concern about the increased level of compensation for IPS. Most referred to the £20,000 as a fine, no fault compensation or punitive damages. They did not read from the Bill that there will be a need for any link between the loss of the complainer and the amount of compensation awarded.129 However, the Executive stressed that there is no punitive element. It is compensation for loss that has been suffered or for distress or inconvenience. It was stressed that £20,000 is a maximum and that the average level of award will be much lower.130

120. The Law Society was critical of the £20,000 figure having been modelled on proposals in England and Wales given the “big differences in earning power, structure and so on” of the professions north and south of the border.131 Many practising lawyers concurred in written evidence.132

The Basis for Awarding Compensation

121. Section 8 of the Bill provides that where the Commission makes a determination upholding a services complaint, it may take such steps (outlined in subsection 2) as it considers “fair and reasonable in the circumstances”, including directing the practitioner to pay an amount not exceeding £20,000 as the Commission may specify.

122. SLAS is concerned at the lack of clarity regarding the basis on which the Commission will make awards. It believes that when the Commission is considering awarding compensation in relation to negligence, it should be forced to look at common law precedent when considering the level of compensation awarded for inconvenience and distress in court cases.133

123. SCOLAG warned that the Commission should not consider negligence claims due to the risk of the courts reaching a different conclusion, which could be damaging to the Commission.134 The Faculty of Advocates was also concerned that the Commission will use different criteria to courts.135

124. Some witnesses sought clarity about the relationship between the Commission and the courts with regard to awarding compensation. The Minister clarified that if a court decided that a complainant should be granted a larger sum than granted by the Commission, it would not constitute a double penalty as the penalty imposed by the court would be offset by any compensation already awarded. He hoped that such cases would be exceptional, “given the flexible way in which we are approaching the matter, most relatively low-level cases could be resolved by the Commission without the need for people to go to court”.136


6 Former SLSO, written evidence

7 For example Alison Kelly, Scott Gow, written evidence

8 Written evidence

9 Policy memorandum, para 4

10 Official Report, 25 April 2006, col 2259, 2262

11 Official Report, 25 April 2006, col 2248

12 Various practicing lawyers, written evidence

13 Section 4(2) of Bill

14 Official Report, 25 April 2006, col 2245

15 Official Report, 25 April 2006, col 2314

16 Professor Paterson, Scottish Consumer Council, SSDT, and the former SLSO

17 Official Report, 16 May 2006, col 2402

18 Official Report, 16 May 2006, col 2425, 2426

19 Section 34 of the Bill

20 Official Report, 16 May 2006, col 2423

21 Official Report, 9 May 2006, col 2381

22 Official Report, 16 May 2006, col 2451

23 LDU, Written evidence

24 Official Report, 30 May 2006, col 2529

25 Letter from Scottish Executive, 26 April 2006

27 This was supported by Alexander Clark

28 Official Report, 23 May 2006, col 2457

29 Bill Alexander, Official Report, 23 May 2006, col 2496

30 Stewart Mackenzie, Official Report, 23 May 2006, col 2496

31 Official Report, 16 May 2006, col 2403

32 Official Report, 2 May 2006, col 2314

33 Official Report, 2 May 2006, col 2313

34 Official Report, 2 May 2006, col 2283

35 Official Report, 16 May 2006, col 2430

36 Official Report, 2 May 2006, col 2332

37 Official Report, 30 May 2006, col 2528

38 Official Report, 30 May 2006, col 2530

39 Examples might be complaints which were sensitive because they related to a member of the professions governing body or raised issues of policy or principle

41 Official Report, 16 May 2006, col 2403

42 Official Report, 16 May 2006, col 2405

43 LDU, written submission

44 Official Report, 2 May 2006, col 2339

45 LDU, written evidence

46 Official Report, 2 May 2006, col 2316

47 Colin Fox MSP dissented on the basis that all complaints should be handled by the Commission.

48 Official Report, 2 May 2006, col 2289

49 Official Report, 2 May 2006, col 2311

50 Core Mediation, written evidence

51 Official report, 2 May 2006, col 2338

52 Scottish Mediation Network, written evidence

53 Official Report, 9 May 2006, col 2376

54 Official Report, 30 May 2006, col 2539

55 Official Report, 16 May 2006, col 2407

56 Financial memorandum (as part of Explanatory Notes), p23, para 109

57 Official Report, 9 May 2006, col 2375

58 Official Report, 16 May 2006, col 2420

59 Various practising lawyers, written evidence

60 Official Report, 2 May 2006, col 2310

61 Official Report, 2 May 2006, col 2324

62 Law Society, written evidence

63 Official Report, 30 May 2006, col 2561-2

64 Policy memorandum, p7, para 34

65 Explanatory notes, p8, para 41

66 Policy memorandum, p8, para 35

67 Explanatory notes, p23, para 109

68 Official Report, 25 April 2006, col 2260

69 Official Report, 2 May 2006, col 2309

70 Official Report, 2 May 2006 cols 2325 & 2341, Official Report, 2 May 2006, col 2375

71 Official Report, 23 May 2006, col 2465, Law Society, written evidence

72 Various practising lawyers, written evidence

73 Official Report, 2 May 2006, col 2309

74 Policy memorandum, p8, para 35

75 Official Report, 25 April 2006, col, col 2261

76 Official Report, 25 April 2006, col 2260

77 Official Report, 16 May 2006, col 2417

78 Various practising lawyers, written evidence

79 SCC, written evidence

80Official Report, 16 May 2006, col 2415

81 SCOLAG and SLAB written evidence, and Official Report, 23 May 2006, col 2467

82 Official Report, 2 May 2006, col 2297

83 Official Report, 2 May 2006, col 2308

84 Various practising lawyers, written evidence

85 Faculty of Advocates, Supplementary written evidence

86 Official Report, 9 May 2006, col 2386

87 Official Report, 23 May 2006, cols 2520-1

88 Official Report, 9 May 2006, col 2397

89 Official Report, 30 May 2006, col 2558

90 SLAB, written evidence

91 Official Report, 2 May 2006, col 2297-8

92 Various practising lawyers, written evidence

93 Official Report, 25 April 2006, col 2260

94 Official Report, 30 May 2006, col 2560

95 Official Report, 25 April 2006, col 2265

96 Official Report, 25 April 2006, col 2262

97 Official Report, 25 April 2006, col 2267

98 Official Report, 2 May 2006, cols 2340-1

99 Official Report, 2 May 2006, cols 2339-40

100 Official Report, 23 May 2006, col 2520

101 Official Report, 2 May 2006, col 2339-40

102 Official Report, 16 May, col 2416

103 Various practicing lawyers and the Procurators Fiscal Society, written evidence

104 SALC, written evidence

105 Official Report, 30 May 2006, col 2556-8

106 Jeremy Purvis MSP dissented on the basis that the Bill should not be prescriptive with regard to the complaints levy and should be amended accordingly.

107 Official Report, 25 April 2006, col 2268

108 Official Report, 25 April 2006, col 2268

109 Law Society, Faculty and practising lawyers, written evidence

110 Faculty of Advocates, supplementary written evidence

111 R&SA, written evidence

112 R&SA, written evidence

113 SCC, written evidence

114 Official Report, 23 May 2006, col 2460

115 Official Report, 9 May 2006, col 2388

116 SCC, written evidence

117 Official Report, 23 May 2006, col 2479

118 Official Report, 2 May 2006, col 2299

119 Official Report, 23 May 2006, col 2500-1

120 SCC, written evidence

121 SCOLAG and Which?, written evidence

122 Official Report, 9 May 2006, col 2387-8, Official Report, 23 May 2006 cols 2515 and 2517

123 Official Report, 23 May 2006, col 2498

124 Official Report, 9 May 2006, col 2371-2

125 Official Report, 2 May 2006, col 2345-6

126 Official Report, 2 May 2006, col 2297

127 Official Report, 2 May 2006, col .2300

128 Official Report, 2 May 2006, col 2303

129 Practising lawyers, written evidence

130 Official Report, 25 April 2006, cols 2266

131 Official Report, 2 May 2006, col 2300

132 Practising lawyers, written evidence

133 Official Report, 2 May 2006, col 2344-5

134 SCOLAG, written evidence

135 Faculty, written evidence

136 Official Report, 30 May 2006, col 2554

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