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Cite as: [2020] CSOH 23, 2020 SC 281, 2020 SLT 297, [2020] ScotCS CSOH_23, 2020 GWD 9-136

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P429/19

OUTER HOUSE, COURT OF SESSION

OPINION OF LORD BRAILSFORD

In the Petition of

FRANCIS CANNON

for

Judicial Review

[2020] CSOH 23

Petitioner

Respondent

Petitioner: G MacColl QC, McKinlay; Thorntons Law LLP

Respondents: Moynihan QC; Anderson Strathern LLP

28 February 2020

[1] The petitioner is a practising solicitor. He has been on the roll of solicitors in

Scotland since August 1968. He is a member of a legal firm having a place of business in

Glasgow. The compering respondent in the present petition is the Scottish Legal

Complaints Commission (“SLCC”) statutory body established under the Legal Profession

and Legal Aid (Scotland) Act 2007 (the “2007 Act”). In the present petition the petitioner

seeks judicial review of certain acts of the respondent relating to a purported complaint

made by and to the respondent against the petitioner in his capacity as a solicitor. The act

giving rise to the present petition was a letter dated 24 April 2019. The petition was

presented to the court on 13 May 2019. Permission to proceed was granted by interlocutor

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of the Lord Ordinary dated 4 July 2019. The substantive hearing in the petition was held on

26 September 2019.

Factual background

[2] There was no dispute as to the relevant factual background. This was averred in

paragraph 3 of the petition and, in all essential respects, admitted in the corresponding

answer.

[3] By letter dated 24 April 2019 the respondent intimated to the petitioner that it had

decided ex proprio motu to make a complaint in its own name in relation to the petitioner’s

involvement with a series of transactions in 2008/91. The heading of the letter was in the

following terms “Complaint by Mr Neil Stevenson on behalf of the Scottish Legal

Complaints Commission (in his capacity as Chief Executive)”. The first paragraph of the

letter was in the following terms: “The matters referred to in this complaint have been

brought to the SLCC’s attention by Police Scotland. The SLCC has taken the decision to ex

proprio motu raise this complaint in its own name.“ The letter also purported to waive a

statutory requirement of the 2007 Act, namely section 4(4) thereof which provides, inter alia,

that a complaint is made prematurely where the complainer has not previously

communicated the substance of it to the practitioner. The letter further concluded that the

complaint was not time barred, on the basis that the SLCC had been “excusably unaware” of

the matters which formed the subject matter of the complaint until December 20182.

1 The letter of 24 April 2009 is produced and is no 6/1(1) of process.

2 Section 4(3) of the 2007 Act and rule 7 of the Rules of the Scottish Legal Complaints Commission 2016.

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Legal framework

[4] The SLCC is a statutory body created under and in terms of the 2007 Act.3 Section 2

of the 2007 Act makes provision for the receipt of complaints and preliminary steps that the

SLCC must take on such receipt. Section 2(1) provides, inter alia;

“(1) This section applies where the Commission receives a complaint by or on

behalf of any of the persons mentioned in subsection (2)—

(a) suggesting—

(i) professional misconduct or unsatisfactory professional

conduct by a practitioner other than a firm of solicitors or an

incorporated practice;

…

(a complaint suggesting any such matter being referred to in this Part

as a ‘conduct complaint’);

…

(1A) The Commission must,

…

(a) determine whether the complaint constitutes—

(i) a conduct complaint,

…”

[5] Section 2(2) of the 2007 Act defines “persons” for the purposes of section 2(1). The

subsection provides, inter alia,

“(2) The persons are—

(a) as respects a conduct complaint, any person;

…”

3 2007 Act section 1(1).

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[6] For the purposes of section 2 of the 2007 Act subsection 4 defines “preliminary steps”

as follows;

“(4) The preliminary steps are—

(a) to determine whether or not the complaint is frivolous, vexatious or

totally without merit;

(b) where the Commission determines that the complaint is any or all of

these things, to—

(i) reject the complaint;

(ii) give notice in writing to the complainer and the practitioner

that it has rejected the complaint as frivolous, vexatious or

totally without merit (or two or all of these things).”

[7] Section 4 makes provision for time limits in relation with which complaints should

be dealt with. As already noted section 4(4) renders a complaint premature where the

complainer has not previously communicated the substance of it to the practitioner.

Section 6 makes provisions for determination of conduct complaints. Section 21 makes

provision for appeal against decisions of the SLCC in respect of complaints in certain

categories.

Petitioner’s submissions

[8] The primary submission on behalf of the petitioner was that the SLCC was not

entitled to make a complaint to itself. Consequently the complaint intimated to the petition

by letter dated 24 April 20194 of process, which was in terms a complaint initiated by the

SLCC, is invalid and of no effect. The SLCC was, quite simply, not entitled to determine the

complaint or to appoint it to any further determination process. The reasoning behind the

4 6/1(1)

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submission was that the commission is a statutory body created under and in terms of the

Act of 2007. Its powers are therefore both provided and circumscribed under and in terms

of that Act. In terms neither the Act, nor rules made thereunder empower the SLCC to make

any complaint to itself. By purporting to do that the respondents have acted ultra vires. It

follows that the complaint is invalid and of no effect.

[9] Senior counsel for the petitioner developed the argument by noting that the

respondents found upon the terms of section 2(2)(a), that the words therein “any person”,

are sufficiently wide to permit it to make a conduct complaint to itself. This argument was

characterised by senior counsel as “plainly misconceived”. In support of that contention

senior counsel observed that the phrase “any person” in section 2(2)(a) contrasts with the

prescribed list of persons who can bring a services complaint under section 2(2)(b). It was

said that no natural or reasonable interpretation would extend the phrase to include the

commission itself in section 2(2)(a). Moreover the phrase as used in section 2(2)(a) was said

to refer back to section 2(1)(a) which expressly provides that the section applies where the

SLCC “receives” a complaint “by or on behalf of any of the persons mentioned in

subsection (2) …” The use of the word “receives” was said to carry the necessary

implication that the complaint came from outwith the SLCC.

[10] Beyond this senior counsel submitted that the 2007 Act fell to be interpreted in light

of well-established common law principles of natural justice and, further, in conformity with

principles of Article 6 ECHR. It was submitted that the respondents’ wholly literal

interpretation of “any person” in section 2(2)(a) “fundamentally conflicts” with principles of

natural justice and Article 6 ECHR.

[11] In relation to common law principles of natural justice it was said that in making a

complaint to itself and purporting to determine that it had jurisdiction to adjudicate upon

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that complaint the respondent had acted contrary to the rules of natural justice at common

law. No party should act as a judge in its own interest. Any party so doing would plainly

be apparently biased in its determination. Reliance was placed in relation to the standards

to which quasi-judicial bodies, in which category the SLCC fell, must adhere to the dicta of

the Lord President (Clyde) in Barrs v British Wool Marketing Board5 in the following terms:

“Although quasi-judicial bodies such as this Tribunal are not Courts of law in the full

sense, it has always been the law of Scotland that they must conform to certain

standards of fair play, and their failure to do so entitles a Court of law to reduce their

decisions. Were this not so, such Tribunals would soon fall into public disrepute,

and confidence in them would evaporate. Fair and equal opportunity afforded to all

interests before the Tribunal is the fundamental basis upon which the Tribunal must

operate, and, in the absence of such fair play to all, it is right and proper that a Court

of law should reduce the Tribunal's decision.

…

It is important to observe the width of this principle. It is not a question of whether

the Tribunal has arrived at a fair result; for in most cases that would involve an

examination into the merits of the case, upon which the Tribunal is final. The

question is whether the Tribunal has dealt fairly and equally with the parties before

it in arriving at that result. The test is not ‘Has an unjust result been reached?’ but

‘Was there an opportunity afforded for injustice to be done?’. If there was such an

opportunity, the decision cannot stand.”

[12] It was submitted that there would plainly be an opportunity for injustice to be done

if the SLCC was entitled to make complaints to itself. It was further submitted that having

regard to the circumstances of the present petition it can be seen from the content of the

complaint letter of 24 April 20196 that the SLCC has already purported to make

determinations in its own interest, and without providing the petitioner with an opportunity

to respond or comment, for example by waiving the requirement for the complaint to have

been raised with the solicitor who was the subject of the complaint and that person being

5 1957 SC72 at p82.

6 6/1(1) of process.

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given a reasonable opportunity to deal with the complaint and, further, in determining that

the purported complaint was not time barred. It was pointed out that were the complaint

allowed to proceed further determinations would require to be made by the SLCC.

[13] Senior counsel for the petitioner concluded this aspect of his argument by observing

that the respondent’s position is that it only has the power to refer conduct complaints to

itself under section 2(2)(a) of the 2007 Act. Its position appeared to be to seek to found upon

its role in conduct complaints being restricted to what was described as a “gatekeeper”

function in relation to sections 2, 3 and 4 of the Act and that this was, in some way not

explained, justification of the competence of it referring complaints to itself. This, it was

submitted, was a plain infringement of the rules of natural justice which equally apply to

any role which the SLCC may have in something which could be described as a

“gatekeeper” function.

[14] Senior counsel presented a relatively brief argument under Article 6 of the ECHR to

the effect that that provision precluded a person acting as both complainer and judge. In

that context reliance was placed on observations of Lord Justice General Rodger (as he then

was) in Hoekstra v HMA(2)7.

Respondent’s submissions

[15] Senior counsel for the respondent initially explained the background which gave rise

to the present position, a matter which he characterised as a “practical issue”. He said that

there have been a small number of instances of possible professional misconduct coming to

the attention of the SLCC that are worthy of investigation but are not the subject of any

7 2000 SLT605 at p610.

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complaint from a member of the public or independent person. The SLCC initially took the

view that it could not itself be a complainer in such circumstances, but that carried the risk

that such instances might, by default, have to pass without any action being taken.

Accordingly in 2013, in the course of considering a number of potential changes to the

2007 Act, the SLCC drew to the attention of the Scottish Government this possible gap and

suggested that there may be a need to amend the Act. It would seem, on the basis of what I

was informed by senior counsel, that following discussions with the Scottish Government,

details of which were quite properly not disclosed to this court, the view was taken that such

an amendment was not required and that the legislation was drafted sufficiently widely to

permit the commission to be a complainer in its own right. It would seem, again on what I

was told by senior counsel, that the commission has acted on that basis since 2014.8 In

relation to the so characterised “practical issue” I was further provided with certain brief

information in relation to the background giving rise to the complaint. Senior counsel did

not suggest that this information was incomplete. He appeared to accept that it would be

inappropriate in the context of the present petition to provide full details of such

information. His purpose in drawing these matters to my attention was simply to draw my

attention to what he characterised as “potentially very serious professional misconduct”,

and, further, to inform me that Police Scotland had not been willing to be a “complainer” in

relation to the present petitioner in the context of the matters to which he had briefly drawn

my attention.

[16] In relation to the question of interpretation of the relevant provisions of the 2007 Act

senior counsel drew my attention to the distinction between a conduct complaint and a

8 See Paterson and Ritchie “Law Practice and Conduct for Solicitors” (2nd edition) 16.04.03, footnote 21.

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services complaint. He noted that only limited categories of person as specified in

section 2(2)(b) of the 2007 Act can make a services complaint. By contrast a conduct

complaint can be made by “any person”. It was submitted that the lack of limitation on the

class of person who may make a conduct complaint reflects the importance of the legislative

aim of maintaining the reputation of the legal profession and sustaining public confidence in

the profession. It was then submitted that consistently with promoting that aim the term

“any person” can and should be understood to have no limitation. My attention was also

drawn to schedule 1(12)(a) of the Act of 2007 which provided that the SLCC has power to;

“Do anything which appears to it to be necessary or expedient for the purpose of, or

in connection with, or appears to be conducive to, the exercise of the commission’s

functions.”

[17] In relation to the petitioner’s arguments in relation to natural justice and the

principle that a decision maker should not be the judge in its own cause it was observed that

that objection is not absolute. It was said that the principle does not apply in circumstances

of necessity, where the decision maker is the only person competent to take the decision.9

That departure from the generality of the principle that a decision maker should not be

judge in his own cause was said to be applicable in the present case because the SLCC were

the only persons competent to exercise the gatekeeping functions in relation to timeous

complaints (section 4 of the 2007 Act), determining whether the complaint is a conduct

complaint (section 2(1A) of the 2007 Act) and whether or not the complaint is frivolous,

vexatious or totally without merit (section 2(4)(a)). Having regard to these considerations

there was, it was submitted, no breach of natural justice in the present petition.

9 Wade and Forsyth on Administrative Law (11th edition) pp395-397.

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[18] In relation to the question of the potential for the appearance of bias it was submitted

that the commission adopts different working practices where matters come to its attention

as potentially meriting a complaint at its own instance. It would seem that whereas a

complaint from a member of the public would be considered by the SLCC’s complaints team

a matter which comes to the attention of the SLCC potentially meriting a complaint is

considered by the head of a separate team. Evidently, at the time the Police Scotland report

in relation to the present petitioner was received that person was the Head of Strategic

Insight. That person submits a report to the Chief Executive who will in turn make a

complaint on behalf of the SLCC if he decides that it is merited. Thereafter the complaint is

handled in the ordinary way by the complaints team. The practitioner complained of has a

right to make observations in the usual way. It was submitted that that system as a whole

was compatible with the common law principle of natural justice.

[19] With specific reference to the issue of arguments about time bar it was submitted that

if the SLCC can make its own complaint a new time bar period could apply to that

complaint. In the context of the present petition the events in question were said to have

occurred in 2008 but the SLCC has, for time bar purposes, had regard to the later date when

it became aware of the alleged misconduct on receipt of the police report. This situation was

said not to be unique to the SLCC. It is a natural consequence of rule 7(3) of the Rules of the

SLCC which requires that body to disregard any period during which “the complainer was,

in the opinion of the commission, excusably unaware” of the professional misconduct. That

rule gives rise to the possibility that a complaint by someone with immediate awareness due

to personal involvement of the transaction in question may be time barred, while the later

complaint by a third party with no involvement at the time and delayed awareness of the

alleged misconduct may be timeous. The variability of the time bar is a product of rule 7(3)

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being framed to promote the legislative aim. In relation to the complaint in the petition to

the effect that the SLCC breached natural justice by taking the decision that the complaint is

timeous without affording the petitioner the opportunity to make comment it was submitted

that the SLCC has yet to consider whether to remit the complaint to the Law Society. In the

event that the SLCC were to decide to do so the petitioner would have the right to seek leave

to appeal under section 21. He could then raise any breach of natural justice in an appeal.

[20] In relation to Article 6 of the ECHR the respondent’s submission was that the SLCC

exercises only a gatekeeper function and does not itself reach a “determination of the

petitioner’s civil rights”. In these circumstances Article 6 is not applicable to the decision of

the SLCC.

Decision

[21] The SLCC is a body created by statute. As such its powers are derived from and

circumscribed by the terms of the creating statute. In the present petition the decision

challenged is a letter, in terms a complaint, in which the named complainer is the then Chief

Executive of the SLCC but expressly raising the complaint on behalf of the SLCC. The

empowering statute, the 2007 Act, determines the category of person who can make certain

types of complaint. It is a matter of agreement between the petitioner and respondent that

the complaint which is the subject matter to the decision challenged falls into the category of

a conduct complaint. That type of complaint can, in terms of section 2(2)(a) be raised by

“any person”. Notwithstanding the apparent width of that provision the construction of

those words requires to have regard to the remainder of the statutory provision. This,

plainly, encompasses the remaining provisions of section 2 of the 2007 Act. Those

provisions include in section 2(1) the provision that section 2 applies where “the commission

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receives a complaint by or on behalf of any of the persons mentioned in subsection (2). In

my opinion that language carries as a necessary implication that the complaint came from

outwith the SLCC. The SLCC cannot, in my view, “receive” a complaint which is self-

generated. A self-generated complaint would necessarily require the SLCC to take a

determination on whether or not a complaint should be made. There is no provision in the

2007 Act for the SLCC to make such a determination.

[22] There is a further consideration in relation to the issue of the interpretation of the

phrase “any person” in section 2(2)(a) of the 2007 Act. I consider there is force in the

submission advanced by senior counsel for the petitioner to the effect that it requires to be

considered and contrasted with the prescribed list of person who can bring a services

complaint under section 2(2)(b). Again as a straightforward matter of language I do not

consider that any natural or reasonable interpretation would include the SLCC itself.

[23] Beyond the foregoing considerations of linguistic interpretation I am further of the

view that had parliament intended the commission to have power to complain to itself it

would have stated so in express terms. Making a complaint is conceptually different from

investigating and determining a complaint. Of necessity different considerations, factual,

administrative and legal, are relevant and have to be considered in relation to the question

of instigation of complaint than is the situation in regard to investigation and determination

of a complaint. It seems to me tolerably clear that if parliament had intended the ambit of

the SLCC’s statutory remit to include instigation of complaints specific provision for how it

would discharge that function would have featured in the creating statute. The absence of

such provision supports, in my view, the construction of the words “any person” to exclude

the SLCC itself.

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[24] The view I have just expressed would, of itself, be sufficient to answer the questions

raised in this petition in favour of the petitioner. I should however refer to the other

arguments advanced.

[25] In relation to the “practical issue” raised by counsel for the respondent I am not

satisfied that it has any relevance in the context of the specific complaints made by the

petitioner and the remedies sought. I accept what senior counsel for the respondent told me

in relation to the practical difficulty that the SLCC encountered in 2013 when, at least

initially, it considered that there might be a need to amend the 2007 Act in relation to the

issue of whether or not it empowered that body to make complaints to itself. That matter is

however, with no disrespect intended, of no consequence or relevance. The decision that the

Act of 2007 was sufficiently wide in scope to enable the SLCC to make complaints against

itself was, in my opinion as expressed herein, erroneous. I have no doubt that the decision

was made in good faith and after consideration. It seems, and I accept, that it has been acted

on since 2014. None of those considerations are relevant. The question of the authoritative

interpretation of the provisions of the 2007 Act is, at the end of the day, a matter for the

courts. It is not in my view a relevant consideration for this court when construing the

provisions of that Act to have regard to how a statutory body has chosen to interpret the

provision and how it has acted. It may be that consequent upon the decision of the court

there will require to be a change in practice so far as the SLCC is concerned. Again, that is

not a matter which can affect the court’s construction of the relevant statutory provisions.

[26] In relation to the issue of natural justice I consider that the decision taken by SLCC

that it had power to raise complaints for its own determination and adjudication was

contrary to the rules of natural justice at common law. I consider the dicta of the Lord

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President (Clyde) in Barrs (supra) to be directly applicable to the circumstances of the

present case.

[27] I take no issue with the views stated by the learned authors of Wade and Forsyth on

Administrative Law to which my attention was drawn by senior counsel for the respondents.

I do not however consider that the statement of the law relied upon has application in the

circumstances of the present application. In the circumstances of the present petition the

argument that the SLCC was the only person competent to exercise a gatekeeper function is

entirely dependent on the construction of the words “any person” in section 2(2)(a) of the

2007 Act. It is only if, as was of course submitted on behalf of the respondents, that the

phrase is given what I consider to be the unnatural construction contended for by the

petitioners that the difficulties envisaged in the argument submitted arise.

[28] Similar considerations arise in relation to the other points raised by senior counsel

for the petitioners in relation to the issue of natural justice. All these points only arise if the

term “any person” in section 2(2)(a) of the 2007 Act are held to be inclusive of the SLCC

itself. Put the other way the objections do not arise if the 2007 Act is deemed not to permit a

commission to raise complaints before itself. In itself the arguments advanced could be

taken, in my view, to be further support for the construction of the contentious words which

I have upheld.

[29] The arguments advanced by both compering parties under Article 6 of the ECHR

were relatively brief. I will deal with them equally briefly. It appears to me that the decision

taken in the letter of 24 April 201910 was indeed a determination or decision by the SLCC in

10 6/1(1) of process.

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effectively its own cause. In these circumstances I am satisfied that the provisions of the

convention are engaged.

[30] Having regard to the foregoing I will sustain the petitioner’s first and second pleas in

law and reduce the SLCC’s letter dated 24 April 2019.