A judge in the Court of Session ruled that the watchdog, which decided ex proprio motu to make a complaint in its own name for investigation and determination, had acted “contrary to the rules of natural justice”.

‘Complaint’

Lord Brailsford heard that the petitioner, Glasgow lawyer Francis Cannon, a solicitor for over 50 years, raised judicial review proceedings against the SLCC after the respondent wrote to him on 24 April 2019 indicating that it had decided to make a complaint against him over his involvement in a series of transactions in 2008 and 2009.

The commission, which was established under the Legal Profession and Legal Aid (Scotland) Act 2007 to act as a “gatekeeper” for complaints by “any person” against members of the legal profession, said the transactions had been brought to its attention by Police Scotland.

The letter, which was headed “Complaint by Mr Neil Stevenson on behalf of the Scottish Legal Complaints Commission (in his capacity as Chief Executive)”, also purported to waive a statutory requirement that a complaint is made prematurely where the complainer has not previously communicated the substance of it to the practitioner. 

The letter further concluded that the complaint was not time barred, on the basis that the SLCC had been “excusably unaware” of the matters which formed the subject matter of the complaint until December 2018.

But the petitioner challenged the procedure followed by the respondent and lodged a petition for judicial review in May 2019.

‘Ultra vires’

He argued that the SLCC was “not entitled” to make a complaint to itself, meaning the complaint intimated to the petitioner was “invalid and of no effect”. 

The powers of the commission, as a statutory body, were both provided and circumscribed under the terms of the 2007 Act, but neither the terms of the legislation nor the rules made thereunder empowered the SLCC to make a complaint to itself, meaning that in purporting to so it acted “ultra vires”.

The respondent’s position was that the words “any person” in section 2(2) of the 2007 Act were “sufficiently wide” to include the commission and therefore permit it to make a complaint to itself, but the petitioner submitted that this argument was “plainly misconceived”.

The petitioner also argued that the 2007 Act required to be interpreted in light of well-established common law principles of natural justice and, further, in conformity with principles of the right to a fair hearing under Article 6 of the European Convention on Human Rights (ECHR). 

In making a complaint to itself and purporting to determine that it had jurisdiction to adjudicate upon that complaint the respondent had acted “contrary to the rules of natural justice” at common law and Article of the ECHR, as “no party should act as a judge in its own interest”.

‘Any person’

The judge ruled that the commission had no power to make a complaint to itself.

In a written opinion, Lord Brailsford said: “The SLCC cannot, in my view, ‘receive’ a complaint which is self-generated. A self-generated complaint would necessarily require the SLCC to take a determination on whether or not a complaint should be made. There is no provision in the 2007 Act for the SLCC to make such a determination.

“There is a further consideration in relation to the issue of the interpretation of the phrase ‘any person’ in section 2(2)(a) of the 2007 Act. I consider there is force in the submission advanced by senior counsel for the petitioner to the effect that it requires to be considered and contrasted with the prescribed list of person who can bring a services complaint under section 2(2)(b). Again as a straightforward matter of language I do not consider that any natural or reasonable interpretation would include the SLCC itself.

“Beyond the foregoing considerations of linguistic interpretation I am further of the view that had parliament intended the commission to have power to complain to itself it would have stated so in express terms. 

“Making a complaint is conceptually different from investigating and determining a complaint. Of necessity different considerations, factual, administrative and legal, are relevant and have to be considered in relation to the question of instigation of complaint than is the situation in regard to investigation and determination of a complaint. 

“It seems to me tolerably clear that if parliament had intended the ambit of the SLCC’s statutory remit to include instigation of complaints specific provision for how it would discharge that function would have featured in the creating statute. The absence of such provision supports, in my view, the construction of the words ‘any person’ to exclude the SLCC itself.”

‘Natural justice’

He added: “In relation to the issue of natural justice I consider that the decision taken by SLCC that it had power to raise complaints for its own determination and adjudication was contrary to the rules of natural justice at common law.

“In the circumstances of the present petition the argument that the SLCC was the only person competent to exercise a gatekeeper function is entirely dependent on the construction of the words “any person” in section 2(2)(a) of the 2007 Act. It is only if, as was of course submitted on behalf of the respondents, that the phrase is given what I consider to be the unnatural construction contended for by the petitioners that the difficulties envisaged in the argument submitted arise.

“Similar considerations arise in relation to the other points raised by senior counsel for the petitioners in relation to the issue of natural justice. All these points only arise if the term ‘any person’ in section 2(2)(a) of the 2007 Act are held to be inclusive of the SLCC itself. 

“Put the other way the objections do not arise if the 2007 Act is deemed not to permit a commission to raise complaints before itself. In itself the arguments advanced could be taken, in my view, to be further support for the construction of the contentious words which I have upheld.”

In relation to the arguments advanced by the parties under article 6 of the ECHR, Lord Brailsford said: “It appears to me that the decision taken in the letter of 24 April 201910 was indeed a determination or decision by the SLCC in effectively its own cause. In these circumstances I am satisfied that the provisions of the convention are engaged.”