Leave to Appeal Granted Where “Threat” to Invoke Equality/Human Rights Law May Be Incapable of Amounting to Professional Misconduct (SLCC Eligibility Decisions)

1. Introduction

Case: Patrick Henry McAuley for leave to appeal a decision of the Scottish Legal Complaints Commission (Court of Session, Extra Division, Inner House), [2026] CSIH 13, decided 17 March 2026.

The applicant, Patrick Henry McAuley, sought permission (leave) to appeal an eligibility decision of the Scottish Legal Complaints Commission (“the Commission”/“SLCC”). The first respondent was the SLCC, and the second respondent was the Law Society of Scotland (“the Law Society”), which had lodged a conduct complaint about Mr McAuley.

The Opinion is expressly to be read alongside the companion decision [2026] CSIH 12 (XA48/25), which set out the relevant statutory provisions and general principles governing SLCC eligibility decisions and the court’s role on appeal.

The Law Society’s complaint comprised three “issues”:

  • Issue one: correspondence (Aug 2024–May 2025) with the Law Society, the courts, and the SLCC said to be apt to bring the profession into disrepute.
  • Issue two: a passage in a supporting document for a practising certificate application said to contain a “threat” to raise proceedings under the Equality Act 2010 (and related human rights assertions) designed to improperly influence the Law Society’s Practising Certificate Sub Committee.
  • Issue three: specified conduct in Employment Tribunal proceedings (around 8 May 2025) said to be apt to bring the profession into disrepute.

The central question for the Inner House was not whether the alleged conduct was proved, but whether Mr McAuley had identified any ground with a real prospect of success in showing that the SLCC had erred in law, acted irrationally, or otherwise fallen within the statutory error categories in relation to its eligibility determination.

2. Summary of the Judgment

The court granted leave to appeal on one point only: whether there is a real prospect that Mr McAuley could successfully argue that the SLCC erred in law or acted irrationally in failing to conclude that correspondence in the terms complained of in issue two (invoking the Equality Act 2010 and Human Rights Act 1998 arguments in the context of a practising certificate application) could never amount to a departure from professional standards, such that it would be futile for the Law Society to consider it.

The court refused leave on all other grounds. It rejected arguments including (i) that the SLCC had “originated” the complaint and was disqualified from adjudicating it; (ii) that the complaint was premature; (iii) that lack of financial loss meant there could be no misconduct; and (iv) various procedural complaints about service, documentation, “quality checks”, and the form of the complaint.

3. Analysis

3.1 Precedents Cited

(a) Levy & McRae Solicitors LLP v SLCC [2025] CSIH 23, 2025 SLT 1025

The court relied on Levy & McRae Solicitors LLP v SLCC [2025] CSIH 23, 2025 SLT 1025 (paras 43–45, and authorities there) for the proposition that, when challenging an eligibility decision, the relevant question is whether there is a real prospect of showing that the SLCC erred in law or acted irrationally in concluding that the conduct complained of is capable of amounting to a departure from the applicable standards (given the low eligibility threshold). The Inner House used this framework to identify that issue two raised an arguable “capability” question fit for appeal.

(b) Cannon, Petitioner, [2020] CSOH 23, 2020 SC 281

Mr McAuley argued that the SLCC was the “true originator” of the complaint (because the SLCC Chief Executive had raised with the Law Society whether correspondence was improper), and thus could not adjudicate it. The court, following Cannon, Petitioner, [2020] CSOH 23, 2020 SC 281, rejected that: the SLCC has no power to complain to itself, but may draw conduct concerns to the attention of a person/body able to make a conduct complaint (such as the Law Society). This preserves regulatory accountability for conduct that comes to the SLCC’s attention and does not disqualify it from later determining eligibility.

(c) Kidd v SLCC [2011] CSIH 75

In addressing complaints about service/notice of the preliminary eligibility decision and alleged lack of adequate time to respond, the court cited Kidd v SLCC [2011] CSIH 75 for the principle that the SLCC should generally give a practitioner an opportunity to provide “an immediate and instantly verifiable complete answer” to a complaint, if one exists. The court held that most of Mr McAuley’s points (aside from the arguable issue two point) did not constitute that kind of complete answer, and therefore the procedural criticisms did not found a realistic appeal.

(d) [2026] CSIH 12 (companion Opinion)

The court repeatedly incorporated reasoning from [2026] CSIH 12, treating it as the primary exposition of the statutory scheme and governing principles (eligibility decisions, low threshold, role of the court). It also used it to dispose of arguments replicated from XA48/25 (e.g., financial loss is not required for misconduct; competence of multi-issue complaints; absence of requirement for an appendix to an eligibility report; misconceptions about notice of a “specified regulatory scheme”).

3.2 Legal Reasoning

(a) The “real prospect of success” filter and the low eligibility threshold

The Inner House treated the application as a gatekeeping exercise: leave is appropriate only where the proposed appeal identifies a point with a real prospect of demonstrating that the SLCC’s eligibility decision was affected by an error falling within the statutory grounds (referred to as the types of error in “section 21(4) of the Act” in the Opinion). The court also emphasised the “very low threshold” for eligibility: eligibility is a sifting function, not a final determination of misconduct.

(b) Why issue two met the threshold

Issue two is framed as a “threat” to raise Equality Act litigation if the practising certificate application were refused, said to be designed to “improperly influence” the Sub Committee, allegedly breaching Practice Rules. Mr McAuley’s core submission was that:

  • the passage was, properly understood, a statement that he would challenge an adverse decision by reference to equality/human rights law;
  • invoking legal rights (or signalling an intention to litigate) is not inherently improper;
  • therefore, the passage could not, as a matter of law or rational assessment, be capable of amounting to professional misconduct/unsatisfactory professional conduct.

Applying the Levy & McRae “capability” framework, the court held there was a real prospect of successfully arguing on appeal that the SLCC should have concluded this conduct was incapable of amounting to a departure from professional standards—hence leave was granted on that limited basis.

(c) Why the other pleas failed

The court rejected the remaining grounds as “without merit” or lacking any real prospect of success, for reasons including:

  • No self-originated complaint: the SLCC can alert a proper complainer (here, the Law Society) without becoming the complainer itself (Cannon, Petitioner, [2020] CSOH 23, 2020 SC 281).
  • Prematurity: there is no absolute rule requiring the complainer to obtain a response before lodging; SLCC policy recognises situations (including regulatory-body complainers and low prospects of resolution) where direct lodging is appropriate.
  • No “£0 loss” rule: absence of financial loss does not immunise conduct from misconduct scrutiny (disposed of by reference to [2026] CSIH 12).
  • Service/time-to-respond complaints: the statutory scheme does not require sending a preliminary eligibility decision; packaging/location of a letter under an address label was not a procedural irregularity; and most points did not amount to an “immediate and instantly verifiable complete answer” (Kidd v SLCC [2011] CSIH 75).
  • Form and content objections: no requirement for quality assurance statements, a committee decision-maker (employee decisions permitted), an appendix, or that a complaint contain only one issue (all addressed by reference to [2026] CSIH 12 and the court’s reasoning here).
  • Frivolous/vexatious challenge (issue one and three): the allegations—e.g., describing a judge as a “racist beast”, describing others as “racist and bigoted shysters”, and alleged mocking of an Employment Judge—were plainly capable of amounting to a departure from standards; thus the SLCC’s remit decision was not shown to be legally flawed or irrational.

3.3 Impact

Three practical implications stand out:

  1. A focused appellate foothold for “capability” arguments: even within a low-threshold eligibility regime, the court confirms there is room for a practitioner to argue that alleged conduct is, in law or rational evaluation, incapable of amounting to misconduct—particularly where the impugned act is the assertion of legal rights (here, equality/human rights based challenge).
  2. Regulatory bodies may communicate about potential complaints without disqualification: the SLCC’s act of drawing concerns to a proper complainer does not convert it into the complainer or create an “apparent bias” bar (Cannon, Petitioner, [2020] CSOH 23, 2020 SC 281 applied).
  3. Procedural “packaging” grievances will rarely suffice: absent a clear statutory or policy breach and demonstrable unfairness tied to a decisive issue, arguments about how documents were served, packaged, or quality-checked are unlikely to meet the “real prospect of success” test—especially where the practitioner cannot point to an “immediate and instantly verifiable complete answer” (Kidd v SLCC [2011] CSIH 75).

Looking forward, the permitted appeal on issue two may influence how regulators characterise robust (or pre-emptive) legal assertions in professional/regulatory correspondence: it raises the boundary question between (i) legitimate notice of intended legal challenge and (ii) “improper” pressure on decision-makers.

4. Complex Concepts Simplified

  • Eligibility decision: an early “sifting” decision by the SLCC on whether a complaint should proceed (e.g., not premature, not time-barred, not frivolous/vexatious, and within remit). It is not a final finding of misconduct.
  • Leave/permission to appeal: a preliminary requirement; the court will allow an appeal only if the grounds show a “real prospect of success” under the statutory scheme.
  • “Frivolous, vexatious or totally without merit”: a high bar for dismissal at the eligibility stage; the complaint must be plainly baseless, abusive, or hopeless.
  • “Capable of amounting to misconduct”: the question is whether, if proved, the alleged conduct could breach professional standards—not whether it did so in fact.
  • “Immediate and instantly verifiable complete answer”: an obvious, checkable fact or point that conclusively defeats the complaint at the outset (e.g., demonstrably mistaken identity, incontrovertible date/time-bar, etc.), referenced from Kidd v SLCC [2011] CSIH 75.

5. Conclusion

[2026] CSIH 13 reinforces the deferential, low-threshold nature of SLCC eligibility determinations, refusing leave on a wide range of procedural and substantive objections. However, it carves out a significant, focused point: there is a real prospect of appellate scrutiny where a complainer/regulator treats a practitioner’s invocation of Equality Act 2010 and Human Rights Act 1998 arguments as an “improper threat” amounting to misconduct. The decision therefore signals that, even in a screening regime, the Inner House will intervene where the SLCC may have failed to recognise that certain conduct is arguably incapable, as a matter of law or rational assessment, of constituting a professional standards breach.