Background 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 “handling complaint”). The Commission will also be able to investigate how a category 1 regulator dealt with any regulatory complaint about an authorised legal business (which will become an additional type of “handling complaint”).
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 (“the Tribunal”) and the Court of Session under the 1980 Act to award compensation in relation to conduct complaints is removed, as the process is only intended to address poor behaviour.
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.