Lord President's decision 2016 on revised ACA scheme: FOI release

FOI reference: FOI/18/01648, 18/01649, 18/01651
Date received: 12 June 2018
Date responded: 4 July 2018

Information requested

You asked: "Regarding the recent meeting with the Director of Justice, Neil Rennick. How can the justice department ask everyone else to act appropriately and take responsibility for their actions, when it is unwilling to even address its own failings?"

"Why was there no consultation for the decision that the revised Scheme for the ACA should be restricted to Simple Procedure only. Can you clarify if a consultation took place for the SSI 20160243, 20170186. Who was consulted?"

"Did the Lord President unilaterally decide in 2016 that the revised scheme for the Association of Commercial Attorneys ( ACA) was to be restricted to simple procedure only. Why were the ACA not consulted?"

Response

I understand that Roddy Flinn has been engaging with ACA on changes. Once that has been agreed, we discussed using a process set out in section 42 of the Law Reform (Scotland) Act 1990 that would allow for the following process to be followed:

1. Formal request by the Lord President to the ACA to submit a revised scheme/amendments.

2. ACA submits draft scheme/amendments to Scottish Ministers. This is the point at which Scottish Government becomes involved in changes to the Scheme.

2a. Scottish Ministers consult on the proposals during 6 week consultation process.

Proposed consultees would be:

• ACA
• The Lord President
• Competition and Markets Authority
• Faculty of Advocates
• Law Society of Scotland
• Scottish Legal Complaints Commission
• Sheriff Principals
• Sheriffs Association
• Summary Sheriffs Association

3. Scottish Ministers either approve or amend the proposed revisions

4. The Act of Sederunt process would then follow.

Officials within this Directorate will engage with Roddy Flynn on his return from annual leave to develop a timeline for progressing the work and that timeline will be forwarded to you.

As we discussed during our meeting, I am very keen that we focus now on moving ahead with this forward process. As I said, I am not convinced that further analysis of the previous history of this issue is helpful in delivering this aim at this time. However, I commit to undertaking a 'lessons learned' exercise at the end of this process, taking account of the concerns that you have raised.

I do, however, want to clarify and apologise for one error that has been made with regard to the liaison with the Lord President's office and included in the response to a review requested by you. As I understand the position, there have been three separate revised schemes submitted by the ACA, and one revisal to a scheme. The first came in on 18 October 2016 and was passed to Lord President's office on 21 November 2016, the second was received on 7 August 2017 and was sent to Lord President's office the same day. A revised scheme with amendments to the "Fellow" category was received on 17 August and passed to Lord President's office the same day, and finally you reverted back to the original version on 1 October 2017 and that was forwarded to Lord President's office on 2 October. I apologise for any incorrect information being provided on this sequence and I hope this clarifies the position.

During our meeting on 12 June you raised other issues that, as I explained, do not fall within the responsibility of Scottish Government Ministers or officials. I can only reaffirm that these are not matters on which I can comment.

You ask how the Scottish Government takes responsibility for its actions and any failings. Where something goes wrong or someone is unhappy with the service we provide, we aim to resolve those concerns. However, where this does not prove possible, complaints can be considered under the formal Scottish Government complaints procedure. Information about the Scottish Government complaints procedure and timescales are provided through the following link:

/about/contact-information/make-a-complaint/

I understand that you have indicated that you wish to raise a complaint about the conduct with reference to the handling of this matter. If you do not feel that this response or earlier responses have not addressed your concerns, I will arrange for an Investigating Officer to be appointed to prepare a report for me on your concerns and, if appropriate, recommend improvements. This should not delay progress with the forward process described above.

You have also asked why there was no consultation with the ACA on restricting changes to the scheme to Simple Procedure issues only. It is our view that no such restriction was made, rather a suggestion that the smaller changes in respect to new Simple Procedure rules were dealt with first. You also referred the consultation process for SSI 2016/0243 and 2017/0186. As these were Act of Sederunts that is a matter for the Lord President's office and I am unable to comment on that. Therefore, while our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses