1) No appeal to a court in relation to service complaints

As regards service complaints there is currently the safeguard of a right of appeal to the Court of Session. We stated within our response to the bill that we are happy that any appeal should go to the Sheriff Court instead, retaining the safeguard but making the process more affordable both to solicitors and complainers.

However, the bill seeks to abolish the right of appeal to any court in relation to service complaints, removing all judicial oversight. Courts are the only forum that can give an independent and reliable statement of the law, establishing precedents and providing guidance and clarity. If this right of appeal is removed the law will in effect be whatever the SLCC dictates, with no appeal, regardless of how badly the SLCC interprets the law.

2) Breach of Article 6 ECHR in respect of a tribunal decision as an alternative to court.

The bill would deprive solicitors and complainers of the entitlement under Article 6 that “In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….” Denial of access to a court requires a legitimate alternative Article 6-compliant body or tribunal. The alternative system proposed by the bill cannot demonstrate due independence. The committee is a “review” committee but it is unclear what “review” means. We suspect that it will be a review of the decision making process of the adjudicator, rather than of the whole case. If so, then it may not satisfy the requirement for Article 6 compliance, rendering this section of the bill ultra vires.

The Council of Europe Guide to Article 6 provides that a “tribunal” need not be a court of law integrated within the standard judicial machinery of the country concerned. Nevertheless, to ensure compliance with Article 6 both substantive and procedural guarantees must be provided.

The review committee is a committee of the SLCC but this is not enough to disqualify it from being a tribunal, yet we cannot see any statutory guarantees in the bill for independence and impartiality of that committee. There is merely a provision for the SLCC in its annual report to state “the steps taken by the commission to ensure that each committee is able to act independently of the commission when considering and determining each application for review”.

However, it is not sufficient to be independent of the commission. It must be “impartial” in terms of Article 6. That requires guarantees such as to the duration of its members’ terms of office.

Satisfying the Article 6 requirements necessitates a complete rehearing of the original service complaint and there must be a fair opportunity to state a case. One assumes that the review committee is subject to the same requirements as the commission itself contained in s11 of the 2007 Act, namely that “In considering what is fair and reasonable in the circumstances, the commission is to take into account the relevant law (including levels of damages awarded by courts in similar circumstances) and relevant codes of practice, professional rules, standards and guidance.”

However, taking the relevant law into account is not enough to comply with the Article 6 requirements. The eccentric views of the commission in relation to prescription of claims needs to be highlighted here. The commission considers it is not bound by these rules and a review committee which failed to apply the law of prescription would not be Article 6-compliant because it would be seen as lacking impartiality. Without safeguards we could have no confidence in the review committee’s ability to satisfy the requirements of Article 6.

An advantage of the current SLCC process is that of confidentiality of the process. That will entirely be lost. Article 6.1 provides that “Judgment shall be pronounced publicly.”

3) Costs fall on Solicitors only

Due to the principle that “expenses follow success”, the costs of a court appeal fall on the unsuccessful party. The bill upsets this principle completely; new reviews will fall to be paid entirely by the legal profession (which funds the entire SLCC scheme) with no contribution by the complainer even if she or he has wasted everyone’s time with a frivolous or malicious complaint. The recent SLAS survey highlighted that more than 95 per cent of respondents had no confidence in the SLCC to sift out spurious complaints. The complaint process is meant to be one that favours neither side. The unsuccessful party (solicitor or complainer) in a review should pay for the costs. No costings have been provided by the Scottish government to enable lawmakers to assess what extra financial burden will be imposed upon the legal profession.

4) Review will grind the complaint process to a halt.

The SLCC does not have a good record of dealing with complaints timeously, never mind adding the review work. A genuine concern exists that adding of the review process will be substantial and will grind SLCC’s work to a halt. There is to be no filter on a review, so it should be no surprise to anyone if in almost every complaint case the solicitor or complainer will request a review. The complainer has nothing to lose; whereas solicitors do. By contrast, at present, very few appeals go before the Court of Session as both parties have something at stake by way of expenses.

5) Most review committee members must be unqualified

The SLCC case investigators are not required to have legal qualifications. This point is already a source of concern for solicitors. Worse, the bill provides that a majority of review committee members must not be legally qualified. This particular point is likely to lead to poor prejudicial decisions without judicial oversight.

Conclusion

These parts of the bill ought to be removed. Instead, there ought to be the right of appeal to the Sheriff Court in order to ensure Article 6 compliance to ensure fairness in relation to costs.