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Complaints and legal aid bill published

2 March 2006

Complaints against practising lawyers, court representation and legal aid all face major changes through a Scottish Executive bill just published.

The Legal Profession and Legal Aid (Scotland) Bill will enable those other than solicitors and advocates to seek rights of audience to represent clients in court, introduce a Scottish Legal Complaints Commission to receive all complaints not resolved at source, and extend the powers of the Scottish Legal Aid Board to give it control over solemn legal aid and enable it to fund advisers other than solicitors.

Deputy Justice Minister Hugh Henry said the bill would provide greater consumer choice, increase public confidence in the justice system, show consistency and transparency in elegibility for legal aid, and improve access to advice and assistance.

"Culture change" - minister

Mr Henry said: "Consumers are right to expect high standards of service, and the time is now right for this culture change in our society to be extended into Scotland's legal system.

"The Legal Profession and Legal Aid Bill will improve complaints handling, better co-ordinate the delivery of legal assistance, and will ensure that suitable advisers are available to the public.

"Together with the success of our High Court reforms, summary justice reforms outlined earlier this week and ongoing work, including efforts to develop in-court advice, I am confident that we can provide modern legal services that set high professional standards and deliver excellent, qualified advice to the public."

The Commission in detail

The new Complaints Commission is to act as a gateway for all complaints against practising lawyers, and other authorised professionals. Any complaints that relate to professional misconduct, or a new category of unsatisfactory conduct, are to be referred to the Law Society of Scotland or Faculty of Advocates to investigate. The Society retains its power to prosecute before the Scottish Solicitors Discipline Tribunal.

Under the bill, if the complaint concerns inadequate professional services the Commission has to decide that it is eligible - i.e. not frivolous or vexatious, and not premature in that no attempt has been made to resolve it at source. The Commission itself can offer mediation but both sides have to accept.

The Commission will have much stronger financial powers than the Society has at present. In addition to ordering a rebate of fees, or action at the practitioner's own expense to remedy matters, it will have power to order compensation of up to £20,000. Its determinations cannot be founded on in court proceedings, but account must be taken of any compensation awarded.

There does not appear to be a right of appeal from the Commission.

It will also have a supervisory role over the professional bodies' handling of conduct complaints, with power to award up to £5,000 in compensation for loss, inconvenience or distress, plus costs, to a complainer if an investigation has been badly handled. The Scottish Legal Services Ombudsman's office is to be abolished.

Levy on practitioners

All solicitors with a practising certificate, advocates, conveyancing and executry practitioners and authorised court representatives will pay a flat rate annual levy, set by the Commission and collected by the professional bodies, to fund its work. In addition a levy will be made - which could rise at an increasing rate with a greater number of complaints relating to a practitioner - on individuals for complaints resolved, whether or not the complaint is upheld. The explanatory notes to the bill call this "a charge for the provision of a dispute resolution service". Complainers will not be expected to pay.

Ministers can make grants and loans, but the Commission is expected to be self-financing.

The Law Society of Scotland will be given power to censure, fine up to £2,000 and award compensation up to £5,000 for unsatisfactory professional conduct, defined as conduct beyond inadequate professional services but falling short of professional misconduct. A right of appeal will be provided to the Discipline Tribunal.