Great Scott? Not quite, but showing promise

Veronica Cowan on the Bar Council lay complaints commissioner's first year in office. Veronica Cowan is a barrister and freelance journalist.

The public might perceive Michael Scott CB, CBE, DSO as typical of an appointment by the Bar Council.

The Bar's lay complaints commissioner is the public school-educated son of a colonel. He boasts manners and gravitas, and has had a distinguished Army career, including service in the Falklands, where he commanded the Second Battalion Scots Guards in the battle for Mount Tumbledown.

The former major general will find his diplomatic skills useful with a profession slow to note the need for an independent adjudicator. But despite seeing his "softly-softly" tactics as appropriate, does he think the public perceive him as being independent of the Bar?

Scott concedes that complainants sometimes accuse him of being one of "them" – although most ombudsmen suffer that label.

Although Scott sees all the complaints to the Bar Council, and has the power to dismiss them, those complaints causing concern have to be referred to the Professional Conduct Committee (PCC), which has 20 barristers and only three lay members. It decides if there has been misconduct or inadequate professional service.

Scott does not have a vote on the PCC, but a complaint cannot be dismissed unless the other lay members agree. The PCC refers some cases of inadequate service to the adjudicating panel, which Scott chairs. It has two lay members and two barristers, and in the event of a split vote the decision goes against the complainant, because the onus of proof has not been discharged to the civil standard.

Scott's view is that giving him a casting vote would remedy any perceived problem, although this might not improve consumer confidence in the independence of the process. That might be enhanced by lay adjudicators being in the majority, or by barristers not participating in the adjudication, except in a purely advisory capacity, as amicus curiae.

Scott finds the adjudication panel procedures "a little cumbersome". However, he does not feel that relying on the practising Bar for advice fetters his independence, saying that, as a non-lawyer, he is reliant on technical advice. But in such a small profession, could the public not perceive a risk of a conflict of interest?

In his first year, Scott received 532 complaints – an increase on previous years. The main areas of dispute concern matrimonial, neighbourhood and prisoners' disputes. He agrees that having a complaints system probably encourages people to complain, but says no complaints could mean a public with little faith in the system.

Scott also believes the system must be open and advertise itself. A minority of barristers have resisted this, but he observes that there is little point in having a complaints commissioner that nobody knows about.

On his appointment, Scott said he was determined to maintain the confidence of the press, the public and politicians in the fairness of the system, but saw it as essential to "play a role in protecting barristers from unwarranted complaints".

He adds that in his first year there were fewer frivolous complaints than he had feared.

Scott is conscious of the damaging effect complaints can have on barristers' careers and the feeling of isolation being complained about can bring in a profession of individuals.

But complainants can feel isolated too, and his report's reference to the dismissal of some complaints as "frivolous and peculiar" risks appearing dismissive.

Many of the problems Scott deals with arise from misunderstandings about the barrister's role and duties to the court and the legal aid fund. But barristers are not always blameless, and of the 40 per cent of cases referred to the PCC, about half disclosed prima facie evidence of misconduct or inadequate service.

Some barristers do not communicate with lay clients, might ignore them in conference, fail to demonstrate a grasp of a complex case, forget how terrifying the court can be and fail to treat them with courtesy.

Scott's panel has no power to award compensation for distress and inconvenience alone. Up to £2,000 can be awarded for financial loss which would be recoverable in a court, which he sees as a serious shortcoming.

He believes the Bar Council should trust the adjudication panel to make such awards. The panel can remit some or all of a barrister's fees but only private clients benefit, while in legal aid cases the beneficiary is the legal aid fund.

Conciliation has not been frequent or fruitful. He encourages people to sort things out but says barristers are not ones for apologising, and that saying "sorry" is not an admission of guilt. Asked whether they might be cautious about endangering insurance cover, Scott says that may be the case, but there had been situations where an apology could have pre-empted a complaint.

Commenting on the Bar's reaction to his first year in office, Scott says: "the feeling I get is that the new system has proved acceptable."

Only last week, however, the Fabian Society called for the Bar Council to be stripped of its complaints-handling powers.

But Roy Amlot QC, chairman of the Criminal Bar Association, says Scott is doing a very good job.

There were reservations before Scott's appointment, because of a fear that disgruntled clients would jump on the bandwagon and misuse the system as part of their appeals. This fear has been allayed by his careful approach to investigations – he has proven good at sifting the frivolous cases from those of genuine concern. Scott is more cautious, saying it is too early to say, confidently, how well the system is working.

Senior policy and development officer at the National Consumer Council, Marlene Winfield, says it is concerned about the high standard of proof required and the lack of compensation for distress and inconvenience. But she adds that it is good that the Bar is beginning to award compensation for inadequate professional service and hopes it will develop into a more effective form of redress.

After a year in office, Scott's report card has an air of caution. And the man who describes himself as "just a simple soldier" may yet find complaints resolution to be a minefield.