Compromise will be needed for meaningful reform of the complaints system

Central recommendation of review has polarised opinion but consensus must be found, says Mark Paxton

We are now nine months on from publication of Esther Roberton’s independent review on the regulation of legal services ‘Fit for the Future’. The Scottish Legal Complaints Commission (SLCC) welcomed the review at the time and, since then, we have consistently reiterated our support for reform of the complaints system, which is one of the central themes.

Since publication there has been much debate, particularly around the central recommendation to establish a single, independent regulator to deal with complaints and redress. Some of those involved in the debate have expressed surprise at the SLCC position in welcoming the report given that it would, essentially, mean the winding up of the SLCC in order for our complaint-handling functions to be undertaken by the proposed single regulator.

Our desire for meaningful reform of the complaints system, which is currently overly legalistic and cumbersome, is about improvement rather than self-interest and progression rather than protectionism.

Over the summer, the focus has once again been on the review with the Competition and Markets Authority (CMA) publishing their response welcoming the review and stressing their support for independent regulation and a simplified, principles-based system based on the Better Regulation Principles.

The Scottish Government has also published its response to the review, noting the polarisation of views on some of the key recommendations and stressing the desire to find consensus.

Finding consensus may prove to be difficult and compromise may be needed from all involved in order to

achieve the most important goal of actually improving the system.

In the last decade Scottish consumers have fallen behind in both the choice of legal services and consumer protections – they have no right of access to comparative price information or complaints data, no ‘alternative legal services’ (there are now more in England than there are law firms in Scotland), and when the public are at risk in England cases are decided on ‘the balance of probabilities’, whereas in Scotland it has to be proved beyond ‘all reasonable doubt’ (in some cases leaving the public exposed even when there is a high probability of risk).

We are looking forward to engaging with the Government, the profession and those representing clients and members of the public who also have a keen interest in what happens next.

Perhaps the most important at this time is that those with an interest

do engage in the process, and particularly the consultation when it is launched. We have already heard what the institutions think of the initial recommendations, what will be important to also note is what those who will be directly affected think. That means both solicitors and consumers.

Currently there are no organised consumer groups to feed into the discussion and our Consumer Panel have noted this as a concern. Hearing the views of individual solicitors should be easier but the debate up to now has been dominated by institutions rather than canvassed opinions of those in practice, not only in big firms but sole practitioners, small firms and in-house lawyers.

Of course, we are also working closely with the Law Society, Faculty of Advocates and Government to try to make interim improvements to the current system without the need for legislative change. Most importantly though we want to use our own experience of the current complaints system and that of those who have been through it to ensure progress and improvement in an area which the Roberton Review has brought into sharp focus.

Consensus will hopefully not mean the lowest common denominator of reform for the profession and public.

Mark Paxton is Interim Director of Public Policy, Scottish Legal Complaints Commission.