Part 3 - Complaints
126.The Commission was established (under the 2007 Act) in 2008 to provide independent oversight of the handling of complaints about the provision of legal services (or the conduct of legal professionals), and to act as a single gateway for the receipt of all such complaints.
127.This Part of the Act makes changes to the procedure for dealing with complaints under the 2007 Act. As part of this, the Commission’s powers are extended so that it can deal with services complaints relating to individuals or bodies who are not regulated by a regulator but who provide legal services to the public for fee, gain or reward.
128.The Commission will continue to oversee the handling of complaints by bodies that regulate the provision of legal services (currently the Law Society, the Faculty and the Association of Construction Attorneys). But the changes made by this Part will allow the Commission to initiate a complaint itself, allow regulators to initiate and investigate certain complaints, and allow a category 1 regulator to investigate a failure by an authorised legal business to comply with a relevant duty or rule (as a “regulatory complaint”).
129.The changes made to the 2007 Act by this Part also give the Commission more flexibility to develop a proportionate, risk-based and more responsive approach to dealing with complaints. It confers powers on the Commission to make rules about how a complaint is to be handled depending on how the complaint is categorised. A complaint (or an element of it) will be categorised as either a “services complaint”, a “conduct complaint” or a “regulatory complaint”. The Commission will have more flexibility around setting the criteria for each category, and for setting out how complaints which involve more than one such category are to be dealt with. Where a complaint is dealt with by a regulator, the Commission will be able to set minimum standards for how this should be done.
130.It will still be for regulators to investigate conduct complaints against members of the legal profession that they regulate, and the Commission will retain its power to investigate a complaint about how a regulator dealt with a conduct complaint (known as a “
131.Rather than allow appeals to the Court of Session against any decision of the Commission in relation to services complaints, the Commission’s decisions will be final (albeit it may be referred to the Commission’s review committee). Any such decision would remain open to judicial review. By contrast, for complaints involving professional conduct, the relevant professional discipline tribunal will retain oversight, and existing routes of appeal remain available. But the powers of the Law Society, the Scottish Solicitors’ Discipline Tribunal (“
132.The arrangements by which the legal complaints system is funded by a levy on the legal profession will continue, but this Part ensures that the Commission will be allowed to set different, and more proportionate, levies for individual legal practitioners and legal businesses. In addition, legal services providers who are not regulated by a regulator may choose to be registered in a register to be kept by the Commission (unless the provider is required to apply for registration) and, in that case, they will be liable to pay an annual contribution. In any event, if a services complaint against an unregulated provider is successful, the provider will be liable to pay a complaints contribution to the Commission and the amount of that may be lower to take account of any annual contributions paid by the provider.
133.This Part also deals with some related matters including adjustments to other legislation.
Section 50 – Receipt of complaints: preliminary steps
134.This section amends section 2 of the 2007 Act (receipt of complaints: preliminary steps).
135.Subsection (3)(a) requires the Commission to deal with—
complaints (i) suggesting that professional services were inadequate where they were provided by a practitioner in connection with a matter instructed by a client or (ii) suggesting that legal services were inadequate where they were provided by a person other than a practitioner to the public for fee, gain or reward (these being types of “services complaint”),
complaints suggesting that an authorised legal business is failing (or has failed) to comply with (i) the practice rules forming part of the rules for authorising and regulating the legal business made by the relevant profession organisation under (or for the purposes of) section 41(1)(a), or (ii) the terms of its authorisation by the relevant professional organisation (these being a type of “regulatory complaint”).
136.Subsection (3)(b) makes it clear that a complaint suggesting that legal services provided by a person other than a practitioner (to the public for fee, gain or reward) were inadequate may include a suggestion that the manner in which legal services were provided was inadequate. But if the Commission considers that the provision of legal services was merely incidental to the provision of non-legal services, the complaint is not to be treated as an eligible services complaint that may be considered by the Commission. It also provides that if a complaint is made about a practitioner who is an individual, the section allows the Commission to also, or instead, treat the complaint as if it were made against the practitioner’s firm or the practitioner who employs the practitioner against whom the complaint was made (“the employing practitioner”).
137.Subsection (3)(c) requires the Commission to determine whether complaints received by it constitute a conduct complaint, a services complaint, a regulatory complaint, or a combination of these categories of complaint. Where a complaint comprises more than one element, it also gives the Commission more flexibility about how to categorise each element. (Complaints were previously required to be divided into either conduct complaints or services complaints, and a single element of a complaint could not be categorised as both a conduct complaint and a services complaint).
138.Subsection (3)(d) ensures that a regulatory complaint may be made by any person. Subsection (3)(e) repeals provisions that are redundant as a result of the other changes.
Section 51 – Complaints initiated by, or continued by, the Commission
139.This section inserts a new section 2A into the 2007 Act. That section gives the Commission the ability to initiate a conduct or regulatory complaint in its own name.
Section 52 – Ineligible or premature complaints
140.This section amends section 4 of the 2007 Act (complaint not made timeously or made prematurely). Subsection (3) ensures that the Commission does not need to take any further action in relation to a complaint referred to in section 2(1) of the 2007 Act that it considers is not an eligible complaint. Rules made by the Commission under section 32 of the Act set out the criteria for this. Subsection (4) ensures that the Commission does not need to take any further action in relation to a complaint referred to in section 2(1) of the 2007 Act that is made prematurely. Subsections (5) and (6) repeal provisions that are redundant as a result of the other changes.
Section 53 – Commission process relating to complaints
141.This section amends the 2007 Act.
142.Subsection (2) amends section 6 (complaint determined to be conduct complaint) to ensure that where a complaint is (or includes an element which is) a conduct complaint, the Commission must send it to the relevant professional organisation to deal with.
143.Subsection (4) amends section 8 (services complaint: local resolution or mediation). The changes ensure that, where the Commission decides that a complaint is wholly or partly a services complaint (i) that has been made prematurely or (ii) in relation to which an insufficient attempt has been made to achieve a negotiated settlement, it may refer the complaint back to try to achieve a negotiated settlement with the complainer. A complaint is made prematurely, within the meaning of section 4(4) of the 2007 Act, where a complainer has not notified the practitioner of the substance of the complaint in question and given the practitioner an opportunity to deal with it or any prior step required under Commission rules (made under section 32(1) of the 2007 Act) has not been taken.
144.Subsection (5) amends section 9 (services complaint: Commission’s duty to investigate and determine) to give the Commission discretion to propose a settlement as respects a services complaint. Previously the Commission was obliged to propose a settlement in respect of services complaints where the complainer had been directly affected by the suggested inadequate professional services.
145.The section also repeals various provisions that are no longer needed as a result of other changes. For example, section 7 of the 2007 Act which requires the Commission to give notice of its determination that a complaint is a services complaint or that it is frivolous etc., is no longer needed because rules made under section 32(1) will set out what the notice requirements are, allowing for a more flexible approach to the notice to be given by the Commission.
Section 54 – Commission’s duty to investigate and determine services complaints
146.This section amends section 9 of the 2007 Act to allow the Commission to close a complaint where a practitioner accepts a settlement proposed by the Commission, but the complainer does not. The Commission can also decide not to initiate the investigation of a complaint, or to close a complaint, where the complainer has refused a proposed settlement from the practitioner that the Commission considers is fair and reasonable, so long as the Commission is satisfied that the proposed settlement will remain available for acceptance for 28 days after the Commission has decided not to investigate the complaint or decided to close the complaint.
Section 55 – Regulatory complaints against authorised legal businesses
147.This section amends the 2007 Act.
148.Subsection (2) inserts new section 7A (complaint determined to be a regulatory complaint). The new section ensures that where a complaint is (or includes an element that is) a regulatory complaint, the Commission must send it to the relevant professional organisation to deal with. This requirement applies in the circumstances where the Commission has previously determined that a complaint (or an element of it) is a services complaint but, having investigated it, subsequently determines that it is in fact a regulatory complaint.
149.Subsection (3) inserts new section 52A (regulatory complaints: duty of approved regulator to investigate etc.). The new section ensures that, where the Commission sends a regulatory complaint to a relevant professional organisation, the organisation investigates and reports on it. It also enables a relevant professional organisation to discontinue an investigation of a regulatory complaint, or reinstate a discontinued investigation, if it considers that it is in the public interest to do so.
150.New section 52A(5) requires that, following the investigation of a regulatory complaint, the relevant professional organisation must send a written report to the complainer, practitioner and the Commission outlining the facts of the complaint and any action which will be taken.
Section 56 – Services complaint: sanctions
151.This section amends the 2007 Act.
152.Subsection (2) amends section 10 (Commission upholds services complaint) so that a direction made to an employing practitioner under section 10(2)(c) may require action in relation to systems operated by the employing practitioner that affect the provision of legal services generally. This enables the Commission to ensure that action can be taken to fix issues which contribute more generally to services complaints against the employing practitioner, including by improving system-wide procedures or training. The Commission can also give the direction to the practitioner’s firm if the practitioner was, at the time when the services were provided, a partner of a firm.
153.Subsection (3) inserts new section 12A (services complaint upheld: failure to refund fees and outlays). The new section applies, in some circumstances, where the Commission requires a practitioner or an employing practitioner to refund an amount of fees or outlays to a client, and the practitioner or employing practitioner fails to do so due to death of the practitioner, or due to the insolvency or involuntary cessation of trade of the business. Where the new section applies, the unpaid amount is treated, for the purposes of the practitioner’s or the employing practitioner’s professional indemnity insurance, as if it were compensation that the Commission directed be paid to the complainer. This means that the unpaid amount can then be paid from the practitioner’s or the employing practitioner’s professional insurance up to a maximum of £35,000 (when combined with other compensation under section 10(2)(d) of the 2007 Act).
154.The section makes other amendments as a result of changes elsewhere to the 2007 Act.
Section 57 – Commission decision making and delegation
155.This section amends paragraph 13(2) (delegation of functions) of schedule 1 of the 2007 Act to change some of the restrictions on the delegation of the Commission’s functions. For example, the following functions are no longer exercisable only by a review committee (previously a determination committee): determining a services complaint under section 9, determining fees and outlays under section 10, reporting on a services complaint under section 13, or deciding a handling complaint under section 23. Some of the other changes are consequential on removing the Commission’s duty to take the preliminary steps mentioned in section 2(4) of the 2007 Act.
156.Paragraph 13(2) of schedule 1 of the 2007 Act is also amended to enable the Commission to delegate a decision under section 2A(1) of the 2007 Act (as inserted by the Act to initiate a complaint, only to either one of its committees or one of the Commission’s members, and to allow any member of the Commission to take a decision on the disclosure of information under section 41A (the power for the SLCC to disclose information relating to complaints), where authorised to do so by the Commission.
Section 58 – Commission review committee
157.This section amends the 2007 Act.
158.Subsection (3) inserts new section 20A (applications to review committee). The new section makes provision for certain persons to be able to apply for a review of a decision by the Commission in relation to a complaint mentioned in subsection (3) of the new section. A decision of a review committee is final.
159.The section makes other modifications as a result of the other changes made to the 2007 Act.
Section 59 – Disclosure of information by practitioners etc. to the Commission and relevant professional organisations
160.This section amends sections 17, 37 and 48 of the 2007 Act which confer various powers on either the Commission or relevant professional organisations to obtain documents and information in connection with complaints. It also inserts new section 48A into the 2007 Act which confers powers on relevant professional organisations to obtain documents and information before initiating complaints.
161.New section 48A of the 2007 Act applies where a relevant professional organisation is considering making a complaint to the Commission against a practitioner or is otherwise considering treating a matter as if it were a conduct or regulatory complaint remitted to it by the Commission. In these circumstances, the relevant professional organisation may require the practitioner (or the practitioner’s firm or employing practitioner) to provide it with any document or specified information which relates to the matter under consideration (in relation to the potential complaint). But the power cannot be used to require Crown Counsel or a procurator fiscal to provide any document or information.
162.The amendments to sections 17, 37 and 48, and similar provision in new section 48A, of the 2007 Act ensure that the powers conferred by these sections do not require the provision of any document or information that is subject to legal privilege (and which would, in legal proceedings, be protected from disclosure). But they also make it clear that this does not prevent the powers being used to obtain any document or information that is subject to any other right of confidentiality (where legal privilege does not apply). Nor does it prevent the disclosure of any document or information if the client of a practitioner (or the practitioner’s firm or employing practitioner) has consented to the disclosure.
163.The amendments to sections 17 and 48 of the 2007 Act also provide that, in the event that a practitioner, a practitioner’s firm or an employing practitioner fails without reasonable excuse to provide a document or information sought in relation to a complaint by the Commission or by a relevant professional organisation, the Commission or relevant professional organisation may determine the complaint based on the information before it. But it must first notify the practitioner, the practitioner's firm or the employing practitioner of its intention to do so, and it must allow a further 14 days for the document or information to be provided (or a reasonable excuse to be given for any failure to do so). In determining the complaint, the Commission or relevant professional organisation may draw such inference from a failure to provide the document or information as it considers appropriate.
Section 60 – Power of Commission to request practitioner’s details in connection with complaints
164.This section inserts new section 17A (power of Commission to request practitioner’s details in connection with complaints) into the 2007 Act. The new section enables the Commission to obtain various contact details in connection with a complaint against a practitioner from the relevant professional organisation for certain purposes where it considers this is necessary. If requested, the relevant professional organisation must provide contact details for practitioners that it holds, whether or not it continues to be authorised to provide legal services.
Section 61 – Services complaints: special provision for complaints against unregulated persons
165.This section inserts new section 22A (services complaints: special provision for complaints against unregulated persons) into the 2007 Act. The new section applies various provisions of the 2007 Act (with some modifications) in relation to a services complaint against a person who was not a practitioner at the time when the services were provided but who was providing legal services to the public for fee, gain or reward. This ensures that the Commission has functions to oversee services complaints in relation to such unregulated persons.
Section 62 – Handling complaints
166.This section amends sections 23 and 24 of the 2007 Act (which relate to the handling by relevant professional organisations of conduct complaints). The changes made to section 23 extend the meaning of a “handling complaint” so that it also includes a complaint which relates to the way in which a regulatory complaint has been dealt with by a relevant professional organisation (this section previously only covered complaints about the manner in which conduct complaints were dealt with by relevant professional organisations).
167.Where a relevant professional organisation receives a report under section 24 that contains a recommendation relating to it, it must notify the Commission the person who made the handling complaint and any other party to the conduct complaint or regulatory complaint, about whether it will comply with the recommendation (and if not, why not). Where the Commission receives such a notification, or where they are of the opinion that the relevant professional organisation has not complied within 3 months, the Commission may direct the organisation to comply (and the organisation is required to comply).
Section 63 – Annual general levy and complaints levy
168.This section amends sections 27, 28 and 29 of the 2007 Act (which relate to levies payable by practitioners in relation to complaints handling by the Commission). The changes to sections 27 and 28 introduce a levy requirement for practitioners that are corporate bodies (previously the levy was only payable by individual practitioners, for example solicitors and advocates). They also ensure that the levy is payable by authorised providers of accredited regulators (see Chapter 3 of Part 1). The amendments to section 28 also provide increased flexibility to the Commission to decide when the complaints levy should become chargeable to the practitioner.
169.The changes made to section 29 allow for the setting of the amount of “the annual contribution” and “complaints contribution” by the Commission (for context, see also the explanatory notes on section 64). They also give the Commission discretion to, in relation to the annual general levy, set different amounts for different persons, and allow it to make rules setting out circumstances in which the Commission may waive a portion of the levy. In addition, the changes ensure that the Commission can get the information it needs to set the levy.
Section 64 – Unregulated providers of legal services: register, annual contributions and complaints contributions
170.This section inserts new sections 28A, 28B and 28C into the 2007 Act (which relate to a voluntary register, annual contributions and complaints contributions concerning unregulated providers of legal services).
171.New section 28A requires the Commission to establish and maintain a register of unregulated providers of legal services. The register will be voluntary for unregulated legal services providers unless they are specified (or fall within a type or description of person that is specified) in regulations that may be made by the Scottish Ministers under new section 28A(3). A provider who is entered in the register must pay a contribution (which is referred to as “
172.New section 28B imposes requirements on the Scottish Ministers in connection with exercising the regulation-making power under new section 28A(3) to require certain unregulated legal services providers (or certain types or description of unregulated legal services provider) to apply for entry in the register to be kept by the Commission under new section 28A(1).
173.New section 28C requires an unregulated provider of legal services to, in circumstances specified in rules made by the Commission (such as when a complaint is upheld against the person), pay a contribution in relation to any services complaint made against it (which is referred to as “
Section 65 – Commission rules as to practice and procedure
174.This section amends section 32, and replaces paragraphs 1 and 2 of schedule 3, of the 2007 Act (which set out the rules to be made by the Commission as to practice and procedure).
175.The changes to schedule 3 ensure that the Commission’s rules under section 32 include matters which must, and matters which may, be provided for in consequence of other provision made in Part 3 of the Act. For example, the rules must include provision about the criteria to be met for a complaint to be considered eligible, how a complaint is to be assessed with reference to the eligibility criteria, how a complaint is to be categorised, assessing whether to initiate a conduct or regulatory complaint, the circumstances in which the Commission may discontinue or reinstate the investigation of a complaint, the manner in which a services complaint is to be investigated and determined, the timing and manner in which the Commission is to notify parties of its decisions (including with respect to circumstances where a services complaint additionally constituted a conduct complaint or regulatory complaint), evidential matters, notification requirements, membership of the review committee, determining the annual general levy and the payment of the complaint levy.
176.Section 32 is adjusted to ensure that the Commission, before making or changing the rules, also consults with the independent advisory panel established under paragraph 11A of schedule 1 of the 2007 Act and other groups of persons representing the interests of the legal profession.
Section 66 – Conduct or regulatory complaint raised by relevant professional organisation
177.This section inserts new sections 33A, 33B and 33C into the 2007 Act (which concern conduct and regulatory complaints raised by relevant professional organisations). It also makes consequential changes to section 33 of the 2007 Act.
178.New section 33A allows a relevant professional organisation which identifies a matter of concern relating to a practitioner’s conduct, in the course of carrying out its regulatory functions, to treat that matter as a conduct complaint and investigate it, without first having to remit it to the Commission, however it must also be satisfied that, if the matter were referred to the Commission it would be considered by the Commission to be an eligible conduct complaint. Where a relevant professional organisation initiates a complaint in this way, it must notify the Commission which will consider the issue to identify any potential services complaint. The relevant professional organisation must also have regard to the interests of any clients, or former clients, of the practitioner who may have been affected by the practitioner’s conduct and notify those clients if the complaint is upheld.
179.New section 33B allows a relevant professional organisation to treat any concern it has about a failure by an authorised legal business to comply with its rules for regulating it, or the terms of its authorisation, as if the matter were a regulatory complaint. Where this concern was identified in the course of carrying out its regulatory functions, the relevant professional organisation does not need to remit the complaint to the Commission before investigating it so long as it is satisfied that, if the matter were referred to the Commission, it would be considered by the Commission to be an eligible regulatory complaint. A regulatory complaint would include failure by the business to meet practice rules regarding accounting and auditing standards set by the business’s regulator in accordance with section 44 of the Act. Where a relevant professional organisation initiates a complaint in this way, it must notify the Commission which will consider the issue to identify any potential services complaint.
180.New section 33C enables relevant professional organisations to re-categorise a conduct or regulatory complaint that has been remitted to it by the Commission. In order to investigate the matter, the relevant professional organisation must, as soon as practicable, send details to the Commission of the organisation’s re-categorisation of the complaint. The relevant professional organisation must also be satisfied that, if the matter were referred to the Commission it would be considered by the Commission to be an eligible conduct or regulatory complaint as the case may be, before continuing its investigation.
Section 67 – Conduct or regulatory complaint appears to relevant professional organisation during investigation to be services complaint
181.This section amends section 33 of the 2007 Act. It outlines what actions relevant professional organisations should take where it becomes apparent that a complaint may have been wrongly categorised as either regulatory or conduct during the investigation of that complaint, or the mediation process, and should instead be a services complaint. Those actions are to suspend the investigation, consult with the Commission, send the complaint and any related material to the Commission and give notice to the complainer and practitioner.
Section 68 – Conduct complaints: consideration by relevant professional organisations
182.This section amends sections 47 of the 2007 Act (which relates to conduct complaints). The changes to section 47 ensure that an investigation report on a conduct complaint by a relevant professional organisation is also sent to the Commission. The changes also allow a relevant professional organisation to proceed with the investigation of a conduct complaint even if the complaint is withdrawn. This ensures that concerns about a person’s conduct can still be investigated and dealt with appropriately by the relevant professional organisation where a complainer decides not to continue with their complaint. It also allows a relevant professional organisation to discontinue an investigation of a conduct complaint, or reinstate a discontinued investigation, if it is in the public interest to do so. It also requires the relevant professional organisation, when considering what action (if any) to take, to take into account any decision taken by the Commission in respect of a services complaint against the practitioner where the services complaint arises from the same matter to which the conduct complaint relates.
Section 69 – Complaints: monitoring and setting of minimum standards by the Commission
183.This section amends sections 35, 36 and 40 of, and inserts new section 36A into, the 2007 Act (which relate to the monitoring and setting of minimum standards in relation to complaints). The changes to section 35 require the Commission to reach agreement with relevant professional organisations on how it will share information with them in relation to its functions relating to services complaints. It allows the Commission to share information about a practitioner with a relevant professional organisation if the Commissions identifies a matter of concern relating to the practitioner.
184.The changes to section 36 ensure that the Commission monitors practice by, and trends in the way in which practitioners, deal with matters resulting in regulatory, as well as conduct, complaints. It removes the ability for the Commission to issue guidance in relation to those trends, as a consequence of new section 36A and the changes to section 40 set out below.
185.New section 36A allows the Commission to issue guidance to relevant professional organisations about how they are to investigate and determine conduct complaints and regulatory complaints. That guidance may relate to timescales within which relevant professional organisations should aim to complete their investigation and determination of complaints. The guidance may also set minimum standards in relation to the matters to which the guidance relates. The new section requires the Commission to first consult the Lord President, each relevant professional organisation and the practitioners they regulate, and any other persons the Commission considers appropriate on initial proposals to set minimum standards, and again consult each relevant professional organisation and any other persons the Commission considers appropriate on subsequent draft guidance which includes the proposed minimum standards. The Commission must take into account any representation made by those consulted.
186.The changes to section 40 allow the Commission to issue guidance to relevant professional organisations relating to their role overseeing how practitioners are to deal with regulatory complaints or conduct complaints made to them, standards that must be set by organisations for practitioners that they regulate, and in respect of any practice (and any trends in practice) identified by the Commission in the way in which practitioners deal with matters which the Commission considers contributes significantly to services complaints being dealt with by the Commission or conduct or regulatory complaints being remitted to the relevant professional organisation. Where the guidance relates to relevant professional organisations, the Commission must first consult the Lord President, each relevant professional organisation and the practitioners they regulate, and any other persons the Commission considers appropriate on the initial proposals to set minimum standards, and again consult each relevant professional organisation and any other persons the Commission considers appropriate on subsequent draft guidance which includes the proposed minimum standards. The Commission must take into account any representations made by those consulted.
Section 70 – Compensation funds: setting of minimum standards by the Commission
187.This section amends section 39 of the 2007 Act (monitoring effectiveness of guarantee funds etc.). It confers powers on the Commission to issue guidance (which may set minimum standards) for the operation and effectiveness of the Client Protection Fund and analogous compensation funds. Before issuing guidance which sets minimum standards, the Commission must first consult the Lord President, each relevant professional organisation and the practitioners they regulate, and any other persons the Commission considers appropriate on initial proposals to set minimum standards, and again consult each relevant professional organisation and any other persons the Commission considers appropriate on subsequent draft guidance which includes the proposed minimum standards. The Commission must take into account any representations made by those consulted.
Section 71 – Enforcement of minimum standards
188.This section inserts new section 40A into the 2007 Act (enforcement of minimum standards in relation to relevant professional organisations). The new section requires relevant professional organisations to meet minimum standards set for them by the Commission. These minimum standards are to be set out in guidance issued under the following sections of the 2007 Act—
section 36A(1) in relation to how relevant professional organisations are to investigate and determine conduct complaints and regulatory complaints,
section 39(1A) in relation to the operation and effectiveness of the Guarantee Fund and any analogous fund maintained by relevant professional organisations,
section 40(2) in relation to the role of relevant professional organisations in overseeing how practitioners deal with complaints about the matters mentioned in section 40(1)(a) or (b).
189.New section 40A relates to the enforcement of minimum standards made in relation to relevant professional organisations. Subsection (4) allows for a dispute between the Commission and such a body to be submitted to arbitration for final and binding resolution. Otherwise, the Commission may direct the organisation to take steps to address the matter, and the Commission may enforce the steps required through the courts. When making an order under subsection (10), the court can provide that the relevant professional organisation is not required to comply with the direction where the court considers that taking the action proposed in the order would have a detrimental effect on the ability of the relevant professional organisation to comply with its regulatory objectives.
Section 72 – obtaining information from practitioners
190.This section inserts new section 40B into the 2007 Act. That section allows the Commission to request information from a practitioner about complaints received by the practitioner during the 3-year period before the day the request was made, for any monitoring purposes the Commission is undertaking or in connection with the issuing of guidance. This information which can be sought includes:
the date on which the complaint was received,
a description of the substance of the complaint,
the category of personnel in respect of whom the complaint was made,
the type of services in respect of which the complaint was made,
any action taken by the practitioner, the practitioner’s firm or the employing practitioner (as the case may be) in relation to the complaint,
the date on which the practitioner’s consideration of the complaint concluded,
an explanation of whether the complaint was resolved,
any changes in the working practices of, or processes or systems used by, the practitioner, the practitioner’s firm or the employing practitioner (as the case may be) arising from the complaint.
Section 73 – Power to disclose information about complaints: Commission
191.This section inserts new section 41A into the 2007 Act. That section enables the Commission to release information about any conduct complaint, regulatory complaint, services complaint or handling complaint, and to disclose the outcome of a complaint, where it is in the public interest to do so. The information may reveal the identity of any practitioner or firm to whom the complaint relates, but it may only reveal the identity of the complainer with the complainer’s consent.
Section 74 – Restriction on disclosure of information: Commission
192.This section amends section 43 of the 2007 Act to enable the disclosure of information, relating to complaints, for the purpose of enabling or assisting a regulatory body to exercise its functions. The Scottish Ministers may list, in regulations, the regulatory bodies to which this applies. Before making regulations, the Scottish Ministers must consult the regulatory bodies that are proposed to be specified in regulations, the Lord President, the Commission, the independent advisory panel of the Commission, each category 1 and category 2 regulator and each approved regulator (within the meaning of Part 2 of the 2010 Act).
Section 75 – Power to disclose information about complaints: relevant professional organisations
193.This section inserts new section 51A into the 2007 Act. That section enables the Law Society and other regulators of legal services to disclose information about complaints that they are investigating but only if they consider it to be in the public interest. The information may reveal the identity of any practitioner or firm to whom the complaint relates, but it may only reveal the identity of the complainer with the complainer’s consent.
Section 76 – Restriction on disclosure of information: relevant professional organisations
194.This section amends section 52 of the 2007 Act to enable the disclosure of information for the purpose of enabling or assisting any regulatory body to exercise its functions. The Scottish Ministers may list, in regulations, the regulatory bodies to which this applies. Before making regulations, the Scottish Ministers must consult the regulatory bodies that are proposed to be specified in regulations, the Lord President, the Commission, the independent advisory panel of the Commission, each category 1 and category 2 regulator and each approved regulator (within the meaning of Part 2 of the 2010 Act).
Section 77 – Conduct complaints: power to impose unlimited fine and removal of power to award compensation
195.This section amends sections 42ZA, 42ZB, 52, 53, 53ZB, 54, 55, 55A and schedule 4 of the 1980 Act (which relate to the powers of the Law Society, the Scottish Solicitors’ Discipline Tribunal and the Court of Session in connection with conduct complaints). These sections remove the powers of the Law Society, the Tribunal and the Court under the 1980 Act to require the payment of compensation, and related provision. Section 53 is also adjusted to allow the Tribunal, in applicable cases, to impose an unlimited fine, and where the solicitor has been convicted of a criminal offence in relation to the subject matter of the Tribunal’s inquiry, to require the Tribunal have regard to the conviction when exercising its powers (such as ordering the payment of a fine or ordering that the solicitor is struck from the roll).
Section 78 – Faculty of Advocates: complaint of professional misconduct and publication of decision
196.This section inserts a new subsection into section 122 of the 2010 Act (Faculty of Advocates: particular rules). The new subsection provides that rules regulating the discipline of advocates (whether made by the Court of Session or on its behalf by the Faculty) must include rules which require the publication of decisions about complaints of professional misconduct against an advocate. It also provides that the rules must require certain matters to be included in the decisions.
Section 79 – Commission membership
197.This section amends paragraphs 2 and 3 of schedule 1 of the 2007 Act (membership of the Commission and terms of appointment). Paragraph 2 requires that 4 (rather than 5) of the “other members” of the Commission (i.e. at least 8, but no more than 20, other members not including the chairing member) are non-lawyers. The other 3 must be lawyer members. Each member is to be appointed for at least 5 but no more than 8 years.
Section 80 – Role of the independent advisory panel
198.This section amends section 41 of the 2007 Act to add the Consumer Panel to the list of mandatory consultees where the Scottish Ministers propose to make regulations to amend the powers or duties of the Commission.
199.This section also amends paragraph 11A of schedule 1 of the 2007 Act (role of the independent advisory panel). It allows the panel to express views on such matters relevant to the Commission’s functions as the panel considers appropriate (rather than as the Commission’s directs). It also allows the panel to make recommendations to the Commission in relation to any of the Commission’s functions and to relevant professional organisations relating to any of their functions conferred by virtue of the Act. It also places a statutory duty on the Commission to ensure the Consumer Panel is adequately funded and resourced to be able to discharge its functions. Furthermore, it confers the function of making recommendations to the Lord President (in relation to the Lord President’s functions under this Act) on the panel.
Section 81 – Commission reports
200.This section inserts a new sub-paragraph into paragraph 16 of schedule 1 of the 2007 Act (Commission reports). The existing paragraph requires the Commission to prepare an annual report on the discharge of its functions and the actions it proposes to take the following year. The new sub-paragraph requires each annual report of the Commission to explain how it has discharged its functions in a manner which, in accordance with section 3(1) of the Act, is compatible with the regulatory objectives and it considers is most appropriate to meet those objectives.
201.It also requires each report to provide details of certain directions given under the 2007 Act and to include information about compensation awarded to complainers following services complaints, and whether it has been paid. It must also contain details on the work of each review committee established by the Commission and the steps taken by the Commission to ensure that each review committee is able to act independently of the Commission when considering and determining each application for review. Before preparing the annual report, the Commission must consult the Lord President, the independent advisory panel of the Commission and each category 1 and 2 regulator.
Section 82 – Minor and consequential amendments
202.This section introduces Parts 2 and 3 of schedule 3, which contain minor and consequential amendments arising from the provisions in Part 3 of the Act.
