SLCC has ‘administrative law power’ to re-categorise complaints, Inner House rules

By a majority of two-to-one, judges in the Inner House of the Court of Session refused an appeal by the Council of the Law Society of Scotland, which argued that the SLCC did not have the power to do so, following a previous ruling that it was ultra vires of the commission to classify a “single issue” complaint as a hybrid one.

Complaints procedure

Lady Paton, Lord Glennie and Lord Turnbull heard that the SLCC, which was brought into existence by the Legal Profession and Legal Aid (Scotland) Act 2007 to act as a “single gateway” for all complaints concerning the legal profession, has the power and duty to classify complaints as a “conduct” complaint or a “services” complaint.

Once a complaint had passed an initial sifting procedure at the commission – excluding inter alia time-barred cases and cases clearly without merit a conduct complaint would be sent to the relevant professional body, for example the Law Society or the Faculty of Advocates, to be dealt with by the body’s internal disciplinary procedures, while a services complaint remained with the commission, where it would be investigated and decided upon, sometimes resulting in an award of monetary compensation to the complainer.

But a practice developed of classifying some complaints as “hybrid”, i.e. involving both conduct and services, as explained in an affidavit by Neil Stevenson, the chief executive of the SLCC: “If the conduct element was more significant (“Hybrid Conduct First” complaints), then the conduct issues within the complaint would be passed to the professional organisation (in reality usually the Law Society of Scotland) to investigate and determine. Once the Law Society had reached its decision on conduct, the SLCC would then investigate the service element. Where the service element of the complaint was deemed more significant (“Hybrid Service First” complaints), the SLCC would investigate the service element first ”.

Previous Inner House rulings

In 2016, in the course of an appeal by an advocate in terms of section 21 (Bartos v Scottish Legal Complaints Commission 2015 SC 690), the Inner House raised doubts about the competency of that practice in any case involving a “single complaint” or “single issue”.

The court observed that “the statutory provisions … on their face at least, envisage that a single complaint must be classified as either a conduct complaint or a services complaint, and dealt with accordingly. If that is correct, the so called hybrid approach could apply only if and when a complainer raised more than one issue”.

The question was raised as a live issue in the subsequent case of Anderson Strathern LLP v Scottish Legal Complaints Commission 2016 SLT 967, in which the Inner House ruled that the 2007 Act did not give the commission the power to classify a “one issue” complaint as a hybrid complaint.

The court stated that “if a complaint, or a part of a complaint, suggests a failure in proper professional conduct, a view taken by the commission that it could also be seen as raising a service issue does not justify the course taken in Bartos. Instead, the commission must decide whether to classify it as a conduct or a services complaint”.

In compliance with the ruling in Anderson Strathern, the SLCC began dealing with new complaints by classifying them as either conduct or services (i.e. one or the other) and not as hybrid.

But there remained a number of existing complaints already classified as hybrid and progressing through the system on that basis.

The commission adopted a practical approach to those cases, involving inter alia (i) re-categorising certain existing hybrid complaints as either conduct or services complaints, and sending intimation of the re-categorisation to the relevant parties; (ii) in some cases where a determination had already been made by the Law Society on the conduct element of the complaint, simply closing the file in relation to the service element and taking no further steps.

Submissions

However, the Law Society’s position was that the SLCC was a body created by statute and confined within the bounds of the statute, and that the 2007 Act did not give the commission power so to re-categorise a complaint.

It was submitted that the SLCC had in effect a statutory “quasi-judicial function” and that once a complaint was categorised as a conduct complaint, the 2007 Act made it plain that the complaint “must” be investigated by the relevant professional body.

Accordingly, it was argued that once that process was in play, there was no mechanism in the 2007 Act by which that obligation could be removed.

But the commission’s position was that following upon Anderson Strathern it was unacceptable for existing hybrid cases to continue on two tracks and therefore the key question was: what was the proper and lawful means by which to respond to the decision in relation to live complaints classified as hybrid where the final determination had yet to be made?

It was submitted that the decision in Anderson Strathern, together with the statutory scheme, meant that the SLCC had the power to correct its error in a way permitted in administrative law.

The commission, it was argued, should not be forced to await appeals and complainers should not be requested to submit fresh complaints.

The SLCC had adopted a “pragmatic solution” and operated on the basis that it had an “inherent administrative law power” to make a re-categorisation.

Decision

Lady Paton held that, on a proper construction of the 2007 Act, the commission did not have the power to re-categorise at its own hand a previously categorised hybrid complaint as being either a conduct complaint or a services complaint.

However Lord Glennie – with whom Lord Turnbull argeed – held that the exercise of categorising complaints as either conduct complaints or service complaints was “an administrative function and not a judicial or quasi-judicial one”.

In a written opinion, Lord Glennie said: “Once it is recognised on the basis of the decision in Anderson Strathern that the decision to categorise the complaint as hybrid was ultra vires, and that it is within the power of the commission to reconsider and, if necessary, re-make its previous ultra vires decision, then the argument advanced on behalf of the Law Society loses its force. A decision of the commission to re-categorise a hybrid complaint may, almost certainly will, result in the duty previously placed on one or other body to investigate the complaint flying off, but I see no difficulty in this. It is simply the consequence of the commission acting properly in response to a court ruling that its initial hybrid categorisation was unlawful and ultra vires.”