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The pendulum swings

15 May 06

Response from the profession and others to the Legal Profession Bill, including the Society's professional advice on human rights compliance, and Master Policy implications

by P Nicholson, A Sim, R Lindsay, M Dailly


Three pillars of support

The Legal Profession Bill has a long way to go, and the big unknown is to what extent the weight of the concerns expressed over the bill will lead to changes by the Justice 2 Committee or the full Holyrood parliament. But there is no doubt that the proposals have generated a considerable momentum of comment over the past month.

“The simple fact is that the proposals, once law, have to work and improve on the current system. As with our comment on every other bill we have worked on, the Society’s objective is good law. These proposals will not make good law and need significant change if the new system is to work in practice”, says Chief Executive Douglas Mill. “There was always the possibility of a very of visceral, bash lawyers agenda but I think a lot of people, even those who have brought us to the cusp of where we are, are realising that this bill goes way beyond anything they envisaged.”

So how have we got to where we are in the relatively few weeks since the bill was published? Three things have combined to create heavyweight support for the Society’s position: Lord Lester’s opinion on human rights issues, Professor McCrone’s analysis of the process that resulted in the bill, and the response from the profession to the Justice 2 Committee’s call for evidence – which has produced a near unanimity of view even from those who do not always see eye to eye with the Society.

Lester: bill “flawed”

As a Scottish Parliament measure, the bill would be ultra vires if and to the extent that it were found to conflict with the Human Rights Convention. The Executive’s policy memorandum published with the bill recognises this and sets out its views as to why there is no conflict. The Society sought its own advice from Lord Lester of Herne Hill QC, a leading human rights barrister.

At risk of oversimplifying, Lord Lester considers that the proposed Complaints Commission would not constitute a “tribunal” within article 6, nor would it be “clothed with the independence and impartiality required of a judicial body”, having regard to the manner of appointment of its members, their terms of office and whether it would present an appearance of independence. He accepts that there is authority that article 6(1) may be satisfied in some situations by a right of appeal to a judicial body with limited jurisdiction as to matters of fact, but disagrees with the Executive’s view that the Commission’s decisions would be of the nature of the regulatory functions in which this has been held permissible. This is because the practitioner’s civil rights and obligations are engaged: not only the right to property but also “the civil and private right to a good reputation… protected by article 8”.

Lord Lester does not find the controversial levying provisions incompatible with the protection of property: although as a taxing measure these would be subject to the principle of proportionality, it is possible, he says, to give effect to them in a way that would be compatible. He concludes that to achieve ECHR compatibility, the bill must “create a right of appeal against Commission decisions upholding services complaints to the Court of Session or some other appropriate independent and impartial tribunal endowed with full jurisdiction to adjudicate upon the relevant issues of fact and law”.

The Executive’s response to this is unknown at present.

McCrone: independent backing

Professor McCrone’s report has a very different flavour. The professor is co-director of Edinburgh University’s Institute of Governance and, according to Michael Clancy, the Society’s Head of Parliamentary Liaison, “one of the most renowned scholars in the area of governance and politics”. Commissioned to provide an analysis of the bill’s scheme in relation to existing government policy, he spends some time challenging the methodology by which the Executive concluded that last year’s consultation exercise indicated broad-based public support for a body such as the Commission.

Comments such as a “quick and dirty” exercise and “half-baked evidence” certainly made their mark: but do they remain relevant when the Society has now accepted the principle of an independent body? Douglas Mill claims the report is of value because it shows the need to consider and give weight to the significance of large numbers of solicitors submitting comments in opposition to the bill. “The Society’s response to the consultation paper was treated as one response and that has angered many in the profession who fed their views and their clients’ views to the Society. They feel their voice should be heard too and that the Society’s response made with the views of the public and the profession in mind should have been properly weighted. The consultation has been and gone, but the point is that this time the strength of opinion in the profession should be considered as well as the consumer view so that the right balance is achieved.”

The report also tests the proposed costs of the Commission as set out in the financial memorandum. Questioning of the Executive by the parliament’s Finance Committee has borne out the suspicion previously held that to a large extent the figures are guesswork.

No uncertain terms

“The profession is really on board and engaged over this one”, Philip Yelland, Director of the Society’s Client Relations Office, reported to the April Council meeting. On the information available, some hundreds of individual responses must have been sent to Justice 2 by solicitors and legal firms; a selection of quotes from those copied to the Society is on pages 17-19.

The responses speak for themselves; suffice to say that it is striking how from the biggest commercial firms to the law centres, the samethemes recur.

Making the bill workable

Douglas Mill is adamant that the focus remains on trying to deliver improvements to the bill. “We are all aiming to achieve a workable solution for the public, and be given a fair hearing. I am sure that the Justice 2 Committee and MSPs will see there is much more to what we say in terms of the potential damage to their constituents and hopefully make the necessary changes”, he comments.

However even that is something of a big if. The Society has so far been allocated an hour of oral evidence before Justice 2 in which to answer the committee’s questions and present the key points of a fat A4 folder of written submissions; this was taking place as The Journal went to press.

The President, Caroline Flanagan, recognises that the Society has to “convince the Parliament that this is in the interests of clients, the consumers of legal services and the profession. One of our greatest challenges is to try and get that message across because as with service complaints, the public may perceive us as looking after the profession whereas the profession see us looking after the public. It’s a perception which is unfair and taints everything that we do.” The other challenge, she adds, is to make MSPs aware of the wider effects of the bill. “Nobody seems to have thought about where it will take them. That’s why we’re trying to flag up the law of unintended consequences.”

What, then, would it take for the Society to support the bill? “There’s a batting order of things that are important to us”, says Douglas Mill. The ECHR problems, and the Commission’s reach over conduct casework need to be addressed for a start. (For those who thought that the Commission is to refer all such matters to the Society, the Deputy Justice Minister is on record as saying: “the Commission would have oversight and would be empowered to enforce its recommendations in relation to the professional bodies’ casework decisions”.)

To these two fundamentals, the Society adds the “excessive” £20,000 compensation limit, the “solicitor pays regardless” complaints levy, the ability to adjudicate on negligence, and the reach over the Master Policy and Guarantee Fund. More on each of these points can be found in the articles that follow. But as Caroline Flanagan points out:

“What will work is a simpler, less bureaucratic and less expensive system than the one proposed, and one which improves on the Society’s system. That needs to be sufficiently independent of the government and the profession to command the faith of both the public and the legal profession. It should aim to handle service complaints and do so well without overcomplicating its role, and above all keep the increased speed of complaints handling going as well as a balanced input from the profession and non-lawyers.

“That was what we proposed when we accepted the principle of an independent complaints-handling body last November, and we will continue to work with the Scottish Executive and any minister and MSP to achieve a system that fulfils these objectives.”

THE BILL AND THE MASTER POLICY

Marsh has submitted comments to the Justice 2 Committee in relation to the Master Policy-related provisions of the bill:

  • the proposed arrangements for resolving Services Complaints involving an element of negligence (“negligence claims”);
  • the proposed role of the Scottish Legal Complaints Commission in monitoring the effectiveness of the Master Policy.

How is negligence determined?

The bill does not make it clear:

  • what test of negligence will apply;
  • who will have the onus of proof;
  • what standard of proof will apply – balance of probabilities or some other;
  • whether defences, such as time bar or contributory negligence, will be available to the solicitor;
  • what process will be adopted for hearing/deciding negligence claims;
  • whether parties will have the opportunity to be legally represented.

Clarification of these issues would be required before the proposed process can be compared with the current process for resolution of negligence claims.

The determination process

It is not clear from the bill how the Commission will address the potentially complex issues of causation and quantification involved in negligence claims.

The complexity of a negligence claim is not proportionate to the size/value of the claim – even relatively low value negligence claims can involve considerable complexity in relation to liability, causation and/or quantification. Accordingly, parties’ best interests will be served by having experienced/professional representation.

The vast majority of those pursuing negligence claims are currently represented and, unless the process, test or onus of proof are going to change, it is not clear how the need for representation in relation to negligence claims would change. Without representation, there would be a heightened risk of the parties’ interests being prejudiced.

If it is envisaged that the speed of resolution of negligence claims will be increased, it is unclear how this will be achieved in a way that is consistent with the parties’ rights being properly vindicated.

Outcome of negligence claims

Until the process and decision making of the Commission are clearer, it is impossible to say whether or how the outcome of negligence claims under the proposed procedure might differ from the current position.

If the test/standard of negligence is lowered, contributory negligence is disregarded or a more generous measure of damages/compensation is applied, the rights of the solicitors concerned, and of their insurers, could be adversely affected.

Is there an intention that the bill will create not only an alternative dispute resolution process but also a different remedy for complainers/claimants?

Challenging the Commission’s decisions

Under the current arrangements, where the parties cannot reach a mutually satisfactory agreement following negotiation, dissatisfied claimants have recourse to the courts and potential appeals. The availability of only a limited appeal to the courts, by way of judicial review, from the Commission’s decisions will be a potential concern to solicitors and to the Master Policy insurers and there must be a question about the consistency of such an arrangement with human rights legislation.

Master Policy cover

At this stage, it is not possible to state with certainty what impact these arrangements would have on the availability and the terms/ conditions of Master Policy cover.

Some of the queries and concerns expressed above could potentially have an adverse impact on the availability/terms and conditions of cover. For instance, insurers are likely to be concerned about any aspect of the process which results in a lack of consistency of decision/outcome; absence of provision for legal representation of the insured solicitor throughout the process; the lack of effective appeal etc.

The potential responses of insurers may include:

  • excluding cover for such claims;
  • increasing the self-insured amount (excess) in respect of such claims so that they are effectively largely excluded from cover unless the aggregate self-insured amount has been reached (Note: The Master Policy insurers increased the self-insured amount applicable to inadequate professional service awards on account of the increase in the maximum level of award with effect from 1 April 2005. As the maximum level of IPS award is now £5,000 and the minimum self-insured amount applicable to IPS awards is now £6,000, IPS awards are effectively excluded from Master Policy cover.);
  • insurers applying an “inner limit” (different/lower limit of indemnity applicable to specified categories of claim) in respect of such claims.

The impact of such policy conditions could be that solicitors are substantially self-insured for such claims or, potentially, uninsured in respect of negligence claims pursued by claimants as “negligence complaints”.

Monitoring effectiveness of the Master Policy

It is not clear what is intended by the proposal that the Commission would have a function in monitoring the “effectiveness” of the Master Policy. Questions that arise include:

  • how is it envisaged “effectiveness” would be assessed?
  • will the monitoring function be workable?
  • why is such a monitoring function necessary or appropriate?

How would “effectiveness” be assessed? If, for instance, “effectiveness” is to be judged by reference to the speed of resolution of negligence claims, this may be regarded as a simplistic approach and of highly questionable value.

A range of diverse and uncontrollable factors are capable of impacting on the speed of resolution of negligence claims.

Would the proposed monitoring function be workable? Information on, for instance, the time taken to resolve negligence claims and the value of claim settlements will be known only to the insurers and/or the solicitors concerned. What entitlement will the Commission have to require provision of this information?

Why is the proposed monitoring function necessary or appropriate? We know of no equivalent arrangement in any jurisdiction worldwide. The cover provided by the Master Policy is a commercial insurance arrangement between commercial insurers and solicitors operating as principals in private practice in Scotland. The Master Policy, like all professional indemnity insurance arrangements, is principally for the protection of the parties paying the premium – in this case solicitors operating as principals in private practice in Scotland.

Insurers handle negligence claims on behalf of their insureds, namely the insured solicitors. The proposed monitoring role seems to imply that there is some direct right of claim on the Master Policy by members of the public, which is not the case.

Alistair Sim is a director in the FinPro (Financial and Professional Risks) Practice at Marsh, the world’s number one risk specialist.

TIME TO GET YOUR HANDS DIRTY

It’s get off our backsides time.

This is no time to throw in the towel and say they’ll do what they want anyway.

Nor can we rely on the power of reasoned arguments about constitutional balance, justice and democratic tradition. Been there, done that, didn’t work. The reason is that the politicians don’t understand them and think we’re just making it up. We are going to have to dumb down our arguments and perhaps even start upsetting people.

Where we are is all down to people with an axe to grind going on complaining. Rather than try and work out the rights and wrongs, the politicians decided there must be something to complain about and have gone along with the crowd – more ancient Roman “bread and circuses” politics than high ideals of social and constitutional reform.

So we have to get at our political leaders in language they understand. They don’t read lengthy submissions, but they do read the papers and they do worry about jobs being lost, people complaining about things, and anyone saying it was their fault.

What we need is constituency and list MSPs getting in touch with their leaders. We want them complaining that they’re worried: that people are going to blame them when they can’t get a divorce, or get grampa’s will sorted out, or their house sold, because they can’t get a decent lawyer locally and the last cheap and nasty crew that did it for 50p made a mess that the constituent can’t sort out on their own.

We could also try to enlist the help of that other group of people who just love it when the politicians do something stupid: the local press. What does your local paper usually publish? Local interest stories. Specifically, they will always run stories about ordinary local people who have been treated badly by the system.

If you can’t see how we could make something of this sort of appetite, perhaps you should be doing another job.

We want the politicians worrying about people not being able to get legal aid: not “nasty” people like criminals but “nice” people like Miss McNormal, who is terrified of her partner and is in danger of him getting the kids because there aren’t any solicitors left in town, let alone doing legal aid work. We want them phoning up their party press offices asking what they should say to the local paper or radio station who are on the phone wanting a quote.

Spread the word, colleagues. Only you can do this, because they’re not listening to anything coming out of our half of Drumsheugh Gardens. Put out press releases to your local papers and your local radio. Go along to your MSP’s surgery: it’s not as if they have them too often so it isn’t a big time commitment. The Society will be in touch shortly with a press-pack checklist giving some of the salient facts, but remember what local people (therefore your local media) will be interested in: job losses, loss of income to the local economy, hard luck stories of people (in situations with which Mr and Ms Average can identify) who can’t get their problems sorted out. Let’s see what the public and politicians say then.

If we give up and do nothing, we’ll lose anyway and it’s goodbye to the profession that we joined. If we stay behind the barricades, they’ll roll straight over us or starve us out.

And if you think parliament should not be argued with, why are you living in a country that is supposed to be a democracy (at least it was the last time I looked)?

Unless, of course, you’re one of the ones who thinks they can make a killing? Or you are apathetic after all?

Ranald Lindsay is a solicitor advocate and Council member for Dumfries

THE LAW CENTRES: BILL CAN'T DELIVER ON ITS AIMS

Over the last 25 years, Scottish law centres have been responsible for a significant volume of test case and campaign work to improve the rights and remedies of citizens who are vulnerable, in poverty or social disadvantage. Our services are generally free at the point of delivery to the public.

In principle, the Scottish Association of Law Centres (SALC) welcomes and supports the policy aims of the Legal Profession and Legal Aid (Scotland) Bill. However, we believe that the bill as currently drafted is not capable of delivering those policy aims. Below are our main areas of concern as regards the proposed Complaints Commission. Where appropriate, we suggest workable and equitable solutions.

The “complaints levy”

Under section 19 of the bill, where a complainer pursues a complaint which requires mediation or an investigation by the Commission, the practitioner will be liable to pay a financial “contribution” to the Commission. The cost of that contribution is not known. More worryingly, liability will arise regardless of innocence or blame. That is inequitable and unfair. It is the equivalent of winning a case but having to pay the losing side’s expenses. SALC believes that practitioners should not have to pay costs where a complaint is found to be unproven or without merit.

If section 19 of the Bill is not amended we believe it may give rise to an unintended consequence. If it becomes apparent that lodging a prima facie competent complaint to the Commission will always result in a financial cost to a legal firm – win or lose – then a small minority of complainers might use this process to secure an economic settlement. That would be an unwelcome and unintended policy consequence.

Scottish law centres are funded from public funds. In general, law centre funding is often tight and insufficient to meet demand. We do not believe that it would be in the public interest for public funds to be diverted to subsidise the proposed “complaints levy”. This could be easily remedied by amending section 19 to provide that where a complaint is not upheld, no costs will follow for the practitioner.

Who can complain?

The SALC points out that at present someone who is not a client cannot secure a financial award for inadequate professional service. However, a non-client complainer could be awarded financial compensation up to £20,000 as the bill is currently drafted. It should be more precisely drafted in order to deliver the Scottish Ministers’ stated policy intentions.

Compensation up to £20,000

SALC queries the need and justification for such a substantial increase, particularly when the upper limit was only recently increased.

For example, the general compensatory award for a child whose asthma has been severely exacerbated (life threatening) from living in damp, cold and mouldy living conditions is between £500 and £1,000 per annum. The general range of awards for inconvenience and distress that a tenant could expect for having to endure living conditions not reasonably fit for human habitation is also in the range of £500 to £1,000 per annum.

Why as a matter of principle should a complainer obtain more than a sick child when they may have no actual loss other than IPS? This does not appear just and equitable.

If as a matter of policy the Scottish Ministers believe a substantial increase in compensation for IPS is deserved then who will pay for this? Law centres and other legal aid practitioners operate with set public grants or fixed rates of payment for legal aid. There is little scope to pass on extra costs. In view of the likely lack of Master Policy cover, a law centre could potentially be put of operation through an adverse IPS award. We do not believe that is in the public interest; and as previously noted there is no apparent justification for IPS awards over £5,000.

A possible solution would be to amend section 8 to provide that successful IPS complaints would attract an award not exceeding £5,000, while successful negligence claims would attract an award not exceeding £20,000, subject to the caveats below.

These issues are of particular concern to law centres because of our client profile. We often assist clients when no-one else is willing or able to help. Sometimes our clients have been to several firms of solicitors without satisfaction, or have intractable, complex, unusual or novel problems. Many of our clients have mental health problems and are under considerable stress and anxiety. All of these factors add up to clients being more likely to complain if they do not perceive that we have obtained a result to their satisfaction – as opposed to the best possible result when one applies the law to the facts of their case.

Human Rights Act 1998 compliance

SALC believes that where the Commission is sitting in a quasi-judicial capacity (i.e. determining negligence claims up to £20,000 in value), the appointment and tenure of Commission members must meet the criteria required for judicial appointments, otherwise the bill must allow an appeal to a court of law. As presently drafted, it is possible that the bill falls foul of section 29 of the Scotland Act 1998.

Secondly, it is not apparent why the bill should permit a claimant the right to pursue a cost free negligence claim through the Commission, and thereafter still have the right to raise court proceedings against a solicitor for the same matter. While it is accepted that section 10(2) provides that a court “may take into account” an award of damages made by the Commission, it is not in the public interest to create a system of double jeopardy.

Thirdly, it is understood that the Master Policy insurers (who indemnify all legal practitioners for inadequate/negligent service claims) are not willing to cover the additional cost of claims under the bill. This is due to the bill not providing for an independent, impartial, robust and adequate dispute resolution scheme. Without full insurance cover, a law centre could be forced to close in the event of just one adverse determination by the Commission at the full compensatory award level.

Mike Dailly is Secretary of the Scottish Association of Law Centres

[This is an abbreviated version of the SALC’s submissions on the complaints handling aspects of the bill. The SALC also comments on the legal aid provisions. We hope to cover this aspect in a future issue – Editor]

THE PROFESSION SPEAKS OUT

THE BAR ASSOCIATION

By the very nature of the work there will always be a “winner and loser”. The winner is unlikely to complain but the loser is more likely, particularly if he is aware that there could be up to £20,000 to ease the pain of losing. We see a huge rise in the number of complaints being made. The knock-on effect of this is that there will be more delays in dealing with cases....

The majority of clients do not complain. If the solicitor has to meet extra costs of finding money to pay the annual general levy and the complaints levy then this increase in expense will be passed on to clients by virtue of an increase in the fees charged. This is contrary to the interests of the general client….

Why does the Executive not just publish the Abolition of Solicitors Bill? That would put us all out of our misery.

THE IT SUPPLIER

I see this bill as a threat to small to medium legal businesses and, as a consequence, a direct threat to the four families my business supports…

I understand that sole practitioners and two-partner firms make up 60% of all Scottish legal firms. Is the Executive seriously considering foisting a complaints system on them that was designed for the likes of the Pru or the Halifax and is already widely discredited?..

I have already heard several conscientious, but very worried, solicitors talking about giving up their practising certificates so that they will not be affected by the new legislation… Perhaps you could ask the members of the Committee if, given the current terms of the bill, would they encourage their sons or daughters to become a solicitor? I certainly would not and I doubt any of their constituents would either.

THE CITY FIRM

The comments in the Memorandum [on the funding model] are the product of a mindset which regards solicitors as substantially similar to providers of financial services, and law firms as large corporations like banks and insurance companies. There is a part of the activities of solicitors which is indeed comparable with the provision of financial services… But a substantial part of legal service provision is not at all like financial service provision. A better comparison would be with the provision of medical services. Like a medical professional, a lawyer gives advice, based on skill and judgment and available information, to individuals who will make life-changing decisions based on it. If matters do not turn out as expected, that advice will be subjected to hostile, detailed scrutiny carried out with the benefit of hindsight. This scrutiny may have very substantial consequences for the professional concerned. That is why those who carry it out need either to possess a like expertise or to have access to expert evidence from persons who do possess it.

THE LOCAL FACULTY

We have already seen a diminution in the number of solicitors engaged in private practice and a substantial reduction in the number of firms who are prepared to undertake legal aid work. Recruitment of young solicitors is a substantial problem and the Scottish Legal Aid Board has already voiced its concerns that the age profile of those solicitors undertaking legal aid work is increasing. The section of the bill relating to complaints will do nothing to make high street general practice of the law appealing to the younger solicitor. Availability of access to justice to the populace at large in rural areas and small towns will continue to diminish if the penal provisions in the bill are not ameliorated.

THE HIGH STREET SOLICITOR AND CLIENT RELATIONS REPORTER/COMMITTEE MEMBER

The new £20,000 limit (together with the complaints levy) will inevitably restrict access to justice. Solicitors will not take on cases which have traditionally led to complaints. A new client who phones up for an appointment with the words “I’m not happy with my present solicitor” is unlikely to get past the front door.

ANOTHER HIGH STREET SOLICITOR

It appears that the legal profession will be writing a blank cheque to fund the new Commission, the current costings for which I suspect may be considerably understated. If the Executive are satisfied as to their costings, let a cap be put on the funding from the legal profession so that we pay no more than the cost of administering the current system and let the Executive, not the profession, pay for any additional funds that may be required.

THE LARGE COMMERCIAL FIRM

We support the creation of a Legal Complaints Commission but have some general concerns regarding the bill. In particular:…

In our view it is unfair and inappropriate for the legal profession to meet the costs of all aspects of the Commission’s work irrespective of outcome. It is comparable to a free coconut shy, sponsored by the coconuts, with an invitation to the public to throw as many missiles as they wish.

If half of the Commission’s funding is to come from a complaints levy then there is an inherent weakness in the system. The sum to be raised under the levy reflects the Commission’s financial need rather than either the number or seriousness of the matters which come before it. We believe this weakness will create a conflict of interest for the Commission. It is in the Commission’s interest to determine that complaints fall within its investigative/ mediation powers because it is dependent upon the resultant levy to fund itself…

We believe that inherent in the proposed structure are similar conflicts to those perceived to plague the present system…. Improvement of the complaints system requires an integrated tiered structure, where the Commission and the Society and other relevant bodies work together to provide a fair, transparent, cost effective and efficient system.

THE FIRM COMPLAINED AGAINST

A year or so ago my firm received in quick succession three complaints. The allegations made were outrageous and defamatory. On account of the serious nature of the allegations however all three cases were admitted into the system. As all three were entirely without merit they were all either dismissed or abandoned. For a busy firm of solicitors it is of course bad enough to have to waste time on dealing with complaints of this nature. It would be even worse if some sort of levy had to be paid. It is surely unfair if a system is made available to clients where without risk they can make outlandish allegations against a firm of solicitors and when the matter is dismissed suffer no financial consequences whilst the solicitor has to pay a levy.

THE NON-SPECIALIST

A new client contacted me with a fairly complex intellectual property dispute. I am not an expert in this area, but have just completed a six-month module… The gentleman concerned has been to a specialist lawyer who has given him good advice, but he simply cannot afford his fee.…

I genuinely wish to assist this gentleman because he seems a reasonable individual with a good claim… However I have reluctantly told him that in view of the impending proposals I am not in a position to take the risk of representing him.

THE LARGE LEGAL AID FIRM

Careful consideration will require to be given in future as to whether we continue to provide such a legal aid service to our clients if such potential compensation claims could be made. I am extremely conscious of the fact that fewer and fewer firms are now providing civil legal aid and this situation would appear to become only more grave. This is simply going to result in a large proportion of the vulnerable and financially disadvantaged population being unable to secure the services of a lawyer in civil litigation matters.

THE PUBLIC OFFICE

While some solicitors will continue to practise as such, it is feasible that others could choose simply to trade under the title “lawyer”, a term not reserved. Further, they would not need to be a practising member of the Society.

This would mean that they were outside the regulatory ambit of the Society and would not need to comply with matters such as continuing professional development. If this were to be the case in the long term, the quality of service and access to good service would be prejudiced.

We believe that there should be strong links between those who identify defects in conduct and those who regulate/provide training/set standards. Then if gaps in ethics, knowledge etc become apparent, they can be promptly addressed.

THE FIRM IN A “DISADVANTAGED AREA”

If solicitors’ firms close this will have serious economic impacts in areas such as those in which we practise… We employ around 70-80 people whose jobs would be lost.

The Gershon Report urges the public sector to make efficiencies and to downsize in favour of the private sector. The bill’s proposals will have the opposite effect. Not only will 36 private sector jobs be lost in the Society and transferred into 60 public sector jobs with the Commission: solicitors will be forced out of private practice and into public sector jobs. This is in direct contravention of government policy…

Might I remind the Committee that the last time the government set up a body which usurped the functions of the court it was called the Child Support Agency, which has proved to be costly, bureaucratic and wholly ineffective in achieving its primary purpose. Might I suggest the Committee thinks carefully before sanctioning CSA mark 2.

THE COUNCIL MEMBER

The current average settlement of professional negligence claims against the Master Policy is under £10,000. The vast majority of settlements are reached by agreement with the claimant, with only 2-4% of claims being litigated in any year. There is accordingly no basis for the proposed increase in the level or nature of compensation for IPS.

THE MEMBER OF THE PUBLIC

I believe that the effect of increasing the level of compensation and the increased cost on members of the legal profession in funding the proposed Commission is likely to lead to a reduction in the number of solicitors practising in rural Scotland…

Additionally as a professional living and working in a rural area I am aware of the amount of work undertaken by solicitors in charitable and voluntary organisations, many of which are the mainstay of the community, which would be lost if there were to be a reduction in the number of solicitors practising in rural communities.

A NON-SOLICITOR CLIENT RELATIONS REPORTER/ COMMITTEE MEMBER…

Whatever the public perception, ministers need to be aware that the present system is functioning well…. There is therefore no need in my view to consider a greater non-solicitor input, and I say this as a non-solicitor. There are always going to be complaints that cannot be sustained no matter what the constitution of the body handling them. Perception again seems to be that unless a complaint is upheld, justice has not been done. A complaint must stand or fall on its merits.

…AND ANOTHER

It is not unknown for clients to expect that work will be done more quickly than it is and, frequently, the reason that things take longer is that another company or firm has not responded to requests from the solicitor. Even when the solicitor has explained the situation to the client, the client makes a complaint. I consider that it is manifestly unfair that, in these circumstances, when the client has had an explanation and the situation is clearly outwith the control of the solicitor, the solicitor should have to fund an inquiry. It is also a waste of the investigator’s time.

THE LEGAL DEFENCE UNION

[The LDU invites readers to view its submission in full on its website, www.ldu.org.uk]