Andrew Stevenson

The SLCC is a creature of a statute, the Legal Profession and Legal Aid (Scotland) Act 2007, Schedule 1 of which comprises its constitution.

The Commission is meant to be an amalgam of lawyers and laypersons. The former may be advocates or solicitors, but they must have been qualified for 10 years, the same period as is required for them to be eligible for appointment as a sheriff.

It is implicit in the legislation that lawyers cannot be trusted to run the show without their vested interests trumping the public good. Some assume solicitors want to be part of a profession in which ineptitude or chicanery is protected and guarded, or would prefer to see negligent or dishonest business competitors allowed to flourish. Such assumptions are daft. Nevertheless, there are two safeguards built into the Act to prevent jiggery-pokery; firstly, the chair cannot be a lawyer. Secondly, the lawyers must be outnumbered.

Rule 2 of the Schedule requires a “non-lawyer” chair and eight other members, five of whom must not be lawyers and three of whom must be. That makes a team of nine. The Scottish ministers may alter these numbers but there must always be at least four non-lawyers and three lawyer members and the former must always outnumber the latter. The same imbalance is enforced in respect of meetings. The whole structure is clearly and carefully contrived and crafted to achieve a fine and delicate balance of power, with lawyers in a minority.

This edifice is liable to be tipped over completely, however, by the coach and horses that is Rule 10(1)(e). This says that with the exception of committees dealing with whether solicitors have provided inadequate services, the validity of any of the proceedings of the Commission or its committees “is not affected by a vacancy in membership”.

In effect, this permits the SLCC to make the most significant of resolutions, such as venturing into the Court of Session or approving its own annual budget, without there being any lawyers on the Commission at all. In January, there was one lawyer member, a second attended her first meeting at the end of July, and a third such member was appointed in mid-August. So for well over seven months of 2022, SLCC’s lawyer contingent was below the stipulated minimum. That counts for nothing, however.

Also, the rules allow administrative but nevertheless crucial and potentially costly decisions to be taken at meetings where no lawyer members are present. Such gatherings occurred on September 13, 2021 and March 22 this year. At the time of the latter, the one lawyer member of the Commission had intimated his apologies for that meeting. Despite a complete absence of any solicitors or counsel, the SLCC thought it appropriate to approve its draft annual budget there and then.

Accordingly, the annual levy, to be paid only by lawyers, was given the green light at a meeting that lacked any representatives of the legal profession. Without wishing to cite the old adage that there should be no taxation without representation, there is something seriously wrong here. Certainly the two gatherings conformed to the terms of the Act in terms of imbalance; non-lawyers outnumbered lawyer members, 6-0 and 5-0 respectively.

Rule 10(1)(e) is objectionable. It cannot have been Parliament’s intention that the Commission could take major decisions such as approving its own budget, litigating and imposing levies on individuals whilst having significant and long-term vacancies amongst its members. Technically, such decisions could be taken if the membership of the SLCC consisted of only its chair.

If the public requires representation to have confidence in the complaints handling system, lawyers are equally entitled to the same, for the same reason.

The SLCC has been operating most of this year with fewer than three lawyer members, and it is evidently prepared to approve the annual levy at a meeting that lacks any of them. This is irregular at the very least and it bodes ill for the operation of any organisation which aspires to be a “super-regulator”.

Andrew Stevenson is secretary of the Scottish Law Agents Society. This article first appeared in The Scotsman.