Annual Report for the Year ending 31 October 2019

Last year, Esther Roberton’s report, “Fit for the Future” was produced following her Independent Review of the Regulation of Legal Services in Scotland.  This year, the Tribunal participated in the Government’s consultation on the recommendations contained in that report.  The Tribunal has highlighted its concerns about the convoluted complaints process, the delay in cases reaching the Tribunal, the absence of a fitness to practise regime for solicitors, the current arrangements for appointing solicitor members, and the inability to impose interim orders on solicitors whose actions may be a danger to the public.  Most pertinent to the Tribunal was Esther Roberton’s suggestion that there should be a single disciplinary tribunal for all legal professionals.  The Tribunal believes that the continuation of a disciplinary tribunal for solicitors that is completely independent of any regulator, is essential.   The Tribunal has made suggestions for improvement which it believes will satisfy its aims of protecting the public and upholding the reputation of the profession.

While waiting on the Government’s proposals regarding legal regulation, the Tribunal carried out two consultations to identify positive adjustments it could make which did not require changes to legislation.  The Tribunal consulted on whether it should apply the civil rather than the criminal standard of proof in misconduct proceedings.  At a special general meeting on 6 December 2019, the Tribunal decided to keep using the criminal standard of proof (beyond reasonable doubt) in professional misconduct proceedings.  A summary of its decision is available on the Tribunal website.  The Tribunal also started the process of redrafting its procedural rules.  The current rules have been in operation for eleven years. They are no longer fit for purpose. The Tribunal wishes to create user-friendly rules in plain English which assist parties and further the objectives of the Tribunal.  A small group of Tribunal members met during this reporting year to discuss the deficiencies in the current rules and potential amendments. It agreed possible areas for change and published a consultation document.  Several interested parties provided feedback and the group is due to meet again in the next reporting year. It is hoped that the new rules will be drafted in the 2019-2020 period.  Stakeholders will be consulted on the draft rules. 

No appeals were lodged this year against the decisions of the Tribunal. An appeal against one decision this year was lodged after the year end and is still outstanding.  A Tribunal decision on expenses was judicially reviewed.  The judicial review was unsuccessful.  However, in the light of the comments made in the postscript to the decision, the Tribunal’s guidance on expenses has been updated.

At the end of this year, three legal members left the Tribunal.  Alan McDonald and Douglas MacKinnon served the Tribunal for many years but have had to leave as a result of their retirement from practice.  Carla Fraser resigned from the Tribunal when she was accepted to train as an Advocate.  We wish them all the best.  From 1 November 2019, the Lord President appointed David Dickson, Deborah Lovell and Vincent McGovern as legal members to the Tribunal.  They have a wealth of experience which will be invaluable to the Tribunal in the coming years.

Nicholas Whyte

Chair