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Complaining with confidence

20 June 05

Survey of the background to the Executive consultation paper on complaints handling, some of the issues it raises and its potential long-term implications

by Douglas Mill


Q: Yet another review?

A: Yes. The Society’s Registrar David Cullen coined the expression “regulatory fatigue” last year. Bearing in mind:

  • last year’s investigation by the Office of Fair Trading into the operation of the Master Policy;
  • our participation in the Scottish Executive research working party whose remit is to seek an evidence base for Scottish Clementi issues;
  • the fact that the Society has acted on every one of the recommendations about the Society in the Justice 1 Committee Report on the Regulation of the Scottish Legal Profession published in 2002; and
  • the Society’s continued success in modernising its complaints handling,
it is clear that the Society is undergoing a unique and constant period of critical external scrutiny. This consultation was expected – it was requested in the Justice 1 report. But the consultation also revisits areas where the Justice 1 Committee was satisfied. Either that or there is confusion between service and conduct complaints and how they fit into the regulatory responsibility which Parliament gave the Society.

Q: Did the Society fail to meet its undertakings or to make its position clear?

A: No. The Society has followed through on all of its undertakings since the Justice 1 report and welcomed the opportunities the report brought for change that the Society was keen to implement:

  • 90% of complaints are now dealt with in nine months or less – an outstanding achievement and the new complaints system introduced a simpler process;
  • 50% lay involvement in all complaints committees – and indeed on a whole range of other Society committees;
  • the restructuring the Society has implemented since the Council of the Law Society of Scotland Act 2003 means that there is a clear division between regulation and policy within the operation of Council. Indeed, the operation of Council would be almost unrecognisable to Council members of five or six years ago;
  • the amount of resource invested in the Client Relations Office by the Society over the last few years is unprecedented and a clear indication of how seriously we take our role on behalf of the public and profession in handling complaints.

We have continued to explain what we do, how and why and will continue to do so in responding once again to this consultation. We have sought continued modernisation and requested further legislation to enable us to do so.

It is critical that those involved and affected take the opportunity to have their say on the profession’s future.

Q: Surely then the consultation gives the Society an opportunity to show its achievements and look for further modernisation as it has promised to do?

A: Yes and no. It seems that rather than being judged on the reality of our complaints handling in Scotland and the high standards of the other regulatory functions, we may be judged on perception. The achievements of Philip Yelland, Mary McGowan and their team over the last couple of years mean that we can look civic Scotland in the eye and challenge any assertion that we are doing anything other than a very good job under intense scrutiny from those who regulate and co-regulate with us. 

It is estimated that 0.01% of solicitors’ work in Scotland leads to a complaint. Only some complaints are upheld. The Ombudsman receives complaints on 9% of the complaints the Society handles and finds some varying degrees of fault in around half of those. The issues of key importance are keeping true perspective and avoiding change for its own sake. We are in a situation where we must either stand up for the benefits of our co-regulatory system or request that it is decommissioned. 

The four options the consultation gives for the future show, for me, a lack of understanding of the standards and the value of the current system or the dedication and commitment upon which it relies. The current system with further improvements is apparently not an option. This is a sad reflection on the political process. 

Council is developing its response, but if we are going to be judged on perception then perhaps the sooner we move towards promoting option D (a separate complaints body), the better for the Society and the profession. The problem is that the consultation is unclear whether it is to be a separate complaints body for service complaints and compensation, or for service and conduct complaints, or for all regulatory functions from admission to professional indemnity, and practising certificates to prosecution of members for misconduct. 

Q: Is it that radical?

A: Yes, this consultation, whether intended or not, goes to the heart of professionalism, practice and the role of the Society.

There is no informed analysis of the complaints handling position in Scotland by any of the other parties with an interest. We are happy to look at evidence – hard, factual evidence, sustainable in a court of law. Unfortunately the process in civic Scotland seems to define “evidence” as opinions, however justified or not, based occasionally on history or experience of other jurisdictions. It is sad that a number of organisations have damaged the Society and the profession so badly. The job which faces the Society now is to displace invalid, biased and self-serving perception. 

Q: So what is the Society doing about this?

A: We have formed a Modernisation of Regulation working party. This comprises the three Office Bearers, three Council members (Walter Semple from Glasgow, Cameron Ritchie from the fiscals’ office, and John MacKinnon from Fraserburgh), three members of the Society’s Executive (myself, Philip Yelland the Director of Client Relations, and Michael Clancy the Director of Law Reform). In addition to this our Head of Media Relations (Gillian Meighan) will be a permanent adviser. The committee is meeting regularly to draft the response and co-ordinate communications with the Client Relations Office. 

A meeting of some of our big firms was due to take place on 15 June, using the model which worked successfully in agreeing our requirements for multi-national practice.

All Deans of Faculty and Council members have been sent a copy of the consultation, and the regulation section of the website on www.lawscot.org.uk is kept updated so that anyone who is interested can contribute to the response process.

The issues have been discussed at a number of recent faculty meetings – with particularly good debates in Greenock and Ayr. 

The delay in publication of the consultation allowed us to discuss the issues at Council over a number of months, and May’s Council meeting saw one of the finest debates it has been my pleasure to witness in the last 12 years. Some general policy indications given will allow the working party to draft an options paper. Council will look at the draft on 1 July and agree the final response at its meeting on 15 July in time for the 3 August deadline. 

During that period of time we will consult stakeholders including the staff and the lay members of our various client relations committees. This must be an exhaustive and inclusive process. It is important that all Scottish solicitors in all areas and sectors are enfranchised, because we must consider our approach to co-regulation for the first time in a number of years.

I would encourage individual solicitors, faculties, firms, committee members and other associations to respond directly within the timescale to the Scottish Executive as well as contributing to the Society’s response. Often, those with negative views speak first, which is why it is important that non-solicitors and solicitors who have a more positive and constructive view are also heard. I want to convey the force of feeling which I detected in visits round Scotland over the last six months to our political masters.

Q: But what does this really mean for the average Scottish solicitor?

A: The increasing divergence between big firms and small firms and the growth of in-house employment means that there may not be an average solicitor, and the potential impact will differ across the profession. Ultimately, if the Society were to lose or give up complaints handling, then an external body would be created. I am absolutely convinced that even to perform exactly the same functions as the Society, its costs would escalate enormously and it is clear that whatever the process, the profession will pay the bill for a less efficient system. 

So much of what we do relies on the profession’s and lay people’s goodwill and commitment to a process they believe works in the interests of the public. Our £1.7 million spend on complaints handling this year is only part of the picture. The true cost of complaints handling is much higher. If committee members and reporters were paid the cost of their time, then I think operating on a prudent basis, the actual cost of complaints would be a minimum of £3 million per annum. That excludes set-up, general running and support costs.

I do not see any quango – and it would be a quango – being as efficient as the Society. Indeed, all experience of other examples of functions carried out by such bodies would indicate a doubling or trebling of the costs. I doubt whether the profession in Scotland – because taxpayer input is doubtful here – can really sustain a complaints system which could easily cost £10 million per annum. It would undo the work to simplify and speed up the process and risk being anti-competitive by pricing qualified legal services out of the marketplace.

In addition to the increased cost, the system could move towards “polluter pays” – in other words, like the FSA, you pay for your complaints, regardless. I do not see the introduction of a system of financial penalties for vexatious or unjustified complaints. The current system is to use the political jargon “free at point of delivery”. In other words, it is a no-risk exercise even for the most unjustified or malicious complaint; and let’s be robust enough to admit that they exist. They cost solicitors and the Society substantial sums in time, money and business reputation. 

“Polluter pays” bites in the high street because that is where complaints come from. The type of work in family and business disputes in the civil courts, and property, brings the most complaints by its very nature. 

The commercial client base of our top firms rarely complains to Drumsheugh Gardens; the clients resolve the complaints or go elsewhere. Service complaints – and that is what we are talking about – come from individuals interacting with the legal system, often for the first time.

Philip Yelland and his team lead a committee system with equal lay and professional input with great consideration (perhaps too much at times) within a robust and fair system for handling complaints. I find it hard to see any alternative as robust, impartial and effective, and fear that a consumer-driven compensation claims system could develop which could damage the viability of a number of high street firms and compromise clients’ interests.

Q: Isn’t that a good reason for the Society, the public who participate in the system and the profession to show the benefits of the current co-regulatory system?

A: Yes, and rest assured that Council will provide the leadership and resource which I believe the profession demands. We will challenge the Scottish Executive and the Scottish Parliament who have regulatory power over the Society to operate within the parameters set by Mr McConnell, namely, evidence-based legislation and Scottish solutions for Scottish issues. If perception rules the consultation, then our challenge to the Scottish Executive must be to establish an independent complaints-handling body which is as good as the current one.  This would be better done now in the interests of the public and the profession, rather than by slowly strangling the existing system year on year by compromise and cuts.

What I ask of Journal readers is engagement, an understanding of the issues and participation in the response as well as any legislative proposals that follow. Michael Clancy and myself are the main Society contacts for the consultation and can be contacted with your views or if you would like information.