‘If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity”
Reading Lord Esher’s judgment of 1892, you can feel the powerful logic but also, I like to think, the frustration of the judge. Certainly in court decisions since, the debate continues about the balance between literal meaning and original legislative intent.
It is a frustration shared by the Scottish Legal Complaints Commission, the gateway for complaints about all lawyers in Scotland. Our process is prescribed in detail, detail which sometimes delivers sensible outcomes but sometimes does not.
These are not abstract debates; there are real consequences for real people. In judgments from the Court of Session when one of our cases has been appealed you can see this debate. A decision from summer last year even went beyond the issue under appeal to a philosophical debate on a form of words in the Act and its interpretation. Were the reasoning followed, you could see a situation where in the future consumers receive less compensation, the more serious an infringement by a lawyer is. An illogical outcome that you might think could never have been intended.
It’s one of the many reasons the SLCC has published a paper challenging the current model of complaints handling called #ReimagineRegulation. The Scottish Government is committed to a ‘consultation to review legal regulation’, and we strongly believe that any such work needs to focus on the public and consumer interest, and on systems which support a sustainable legal sector. We set out six priority areas that this consultation should address.
Drafting detailed legislation is incredibly challenging, and can’t always foresee rapidly changing landscapes. One of our key focuses is dismantling the current prescriptive legislation which has evolved piecemeal over the last forty years and instead encouraging the creation of a new single Act which focuses on intended outcomes, but delegates the detail to a more appropriate and flexible level, such as rule making.
We also believe the current arrangements create a complaint maze, with four statutory bodies being involved in some issues. It might be about to get even more complex with the introduction of new types of legal business, meaning a single complaint from a client about a single piece of legal work could lead to the involvement of six different bodies. We believe the maze needs unravelled, and that any consultation should focus on designing an efficiency and effective process for consumers and lawyers, rather than starting with assumptions from current legislation or who currently does what within the current model.
The third priority area is compensation. In a small number of cases awards are made but for a variety of reasons, including such high ‘excesses’ being allowed on indemnity insurance, they are never paid. Although relatively uncommon there is a disproportionate impact on public confidence in the profession. We believe some of the situations which lead to this could be tackled in legislation.
Another key issue to tackle is the highest areas of risk to consumers. All the data appears to suggest that conveyancing has the highest risk of complaints, negligence and indemnity payments. In aggregate, we estimated this could be a cost of around £10 million a year. We believe a consultation should focus on gathering ideas as to how areas like this might be tackled.
The final two priorities are to embed the internationally recognised consumer principles into any new act, and to increase data sharing powers to allow more risk based and targeted regulation. All of these changes are aimed at creating a system that works better for consumers and lawyers by ensuring proportionate regulation which supports a thriving and diverse profession, which is essential to society and commerce. It may not be the role of the courts to tackle absurd statutory arrangements, but we hope that rather than being frustrated at the current arrangements, our positive vision of the future will spark constructive debate.
• Neil Stevenson is chief executive of the Scottish Legal Complaints Commission