Appeal by Patrick Henry McAuley against a decision of the Practicing Certificate Sub-Committee of the Council of the Law Society of Scotland (Court of Session)

Factual and Procedural Background

The Petitioner graduated with an LLB honours degree in 2010 and obtained the Diploma in Professional Legal Practice in 2011. He was a trainee solicitor from April 2013 to April 2015 but has not worked with a firm or as an in-house solicitor since then. He maintained his practising certificate subscription for 2015/16 and 2016/17 but did not renew it in 2017 and requested removal from the roll of solicitors in October 2020.

The Respondent is the governing body of the Law Society of Scotland, responsible for maintaining the roll of solicitors and issuing practising certificates. In July 2024, the Petitioner applied to be restored to the roll and to have a practising certificate issued. The Respondent restored him to the roll on 6 August 2024. On 8 August 2024, the Respondent's Practising Certificate Sub-Committee granted the practising certificate subject to a condition that the Petitioner would not practise as a manager in a practice unit for 12 months, effectively permitting him to practise only as an employed solicitor during that period.

The Petitioner appealed the conditional grant under section 16(2) of the Solicitors (Scotland) Act 1980, challenging the imposition of the condition. The Respondent opposed the appeal.

Legal Issues Presented

1. Whether the Practising Certificate Sub-Committee correctly exercised its discretion under section 15 of the Solicitors (Scotland) Act 1980 in imposing a condition on the practising certificate.
2. Whether procedural improprieties occurred in the Sub-Committee's decision-making, including adequacy of the meeting minutes and quorum.
3. Whether the Sub-Committee's decision was irrational or perverse given the Petitioner’s legal experience and the current shortage of solicitors willing to undertake legal aid work.
4. Whether the condition imposed infringed the Petitioner’s rights under the European Convention on Human Rights, specifically Articles 6, 14, and Protocol No. 1 Article 2 (right to education).

Arguments of the Parties

Appellant's Arguments

• The meeting minute failed to comply with Companies Act 2006 requirements, rendering it insufficient evidence of proper proceedings, amounting to procedural impropriety.
• The Sub-Committee was inquorate and it was unclear whether members were validly appointed, undermining the decision’s validity.
• The Sub-Committee erroneously believed it was obliged to impose the condition due to the Petitioner’s absence from practice for over 12 months, when in fact it had discretion.
• The imposition of the condition was for an improper purpose—reducing risk to clients—which was not a statutory objective of the Respondent.
• The decision was irrational because it failed to consider the shortage of solicitors willing to undertake legal aid work and the Petitioner’s potential to help alleviate that shortage.
• The Sub-Committee misdirected itself on the nature and extent of the Petitioner’s legal experience, failing to recognize certain activities as practice.
• The decision breached the Petitioner’s right to education under Protocol No. 1 Article 2 ECHR by preventing him from profiting from his legal qualifications.
• The Petitioner was discriminated against in breach of Article 14 ECHR, as evidenced by the poor quality of the minute compared to other Respondent minutes.
• The decision breached the Petitioner’s right to a fair trial under Article 6 ECHR by denying a fair and public hearing, oral representations, and adequate reasons.

Respondent's Arguments

• The Respondent is not a company incorporated under the Companies Acts; thus, Companies Act provisions cited by the Petitioner do not apply.
• The Petitioner did not identify any invalidity in the appointment of Sub-Committee members; it is standard practice not to name members in minutes, and the full membership is publicly listed.
• The Sub-Committee properly exercised its discretion under section 15(1) of the 1980 Act, aware that a condition could be imposed but not compelled.
• Reducing risk to clients falls within the Respondent’s statutory objectives and was a proper purpose for imposing the condition.
• The shortage of solicitors willing to undertake legal aid work does not negate the need to protect clients from risks associated with less experienced solicitors.
• The Sub-Committee correctly assessed the Petitioner’s recent legal experience and provided intelligible and adequate reasons for the condition.
• The Petitioner’s ECHR rights under Articles 6, 14, and Protocol No. 1 Article 2 were not breached; the condition is proportionate, non-discriminatory, and does not engage the right to education as argued.
• There was no entitlement to an oral hearing; the right of appeal to the court satisfies Article 6 requirements.

Table of Precedents Cited

Court's Reasoning and Analysis

The court systematically addressed each of the Petitioner’s submissions. It found that the Companies Act provisions were inapplicable as the Respondent is not a company incorporated under those Acts, and thus the meeting minute was a proper record of the decision. The absence of named members in the minute did not invalidate the decision, and the presumption of proper appointment applied.

The court held that the Sub-Committee correctly understood it had discretion under section 15(1) of the 1980 Act to grant a practising certificate with or without conditions. The condition imposed was a legitimate exercise of that discretion, aimed at protecting clients and the public, which falls within the Respondent’s statutory objectives. The court rejected the argument that the condition was imposed for an improper purpose.

Regarding the Petitioner’s legal experience, the court accepted the Sub-Committee’s assessment that his recent experience was limited and that it was reasonable to impose a condition requiring supervision. The court found no irrationality or perversity in the decision.

On human rights issues, the court concluded that Protocol No. 1 Article 2 was not engaged since the Petitioner’s educational qualifications were recognized and the condition did not deny access to education. Even if engaged, the condition was proportionate and justified. The court found no evidence of discrimination under Article 14. Article 6 was not applicable because the decision to impose conditions did not determine civil rights and obligations; even if it was, the procedure and reasons provided were adequate, and the right of appeal to the court fulfilled Article 6 requirements.

The court also dismissed the claim that the decision was not made within a reasonable time, noting the promptness of both the Sub-Committee’s decision and the court’s appeal determination.

Holding and Implications

The court affirmed the decision of the Practising Certificate Sub-Committee dated 8 August 2024 and refused the appeal.

The direct effect is that the Petitioner’s practising certificate remains subject to the condition prohibiting practice as a manager in a practice unit for 12 months. No broader precedent was established beyond the application of the statutory discretion and the affirmation of procedural propriety and human rights compatibility in the context of practising certificate conditions.