Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014 [Draft]
If I have members’ attention, I will move on to agenda item 2, which is consideration of an affirmative instrument. The draft regulations amend and add to the duties and powers of the Scottish Legal Complaints Commission with the aim of improving the complaints process.
The cabinet secretary has, of course, stayed with us, and I welcome from the Scottish Government Denise Swanson, head of the access to justice unit, and Alastair Smith, from the legal services directorate. The cabinet secretary will give evidence in advance of the debate on the regulations. I understand that he wishes to make a brief opening statement.
Thank you, convener. I am happy to be here to assist the committee in its consideration of the draft Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014.
The Law Society of Scotland and the Scottish Legal Complaints Commission previously contacted the Minister for Community Safety and Legal Affairs and the Justice Committee to raise concerns about certain practical aspects of the Legal Profession and Legal Aid (Scotland) Act 2007. The society and the commission agreed to form a working group with other stakeholders, the aim of which was to suggest changes to the legislation to improve the complaints process, which would benefit both the public and the profession. The group consisted of the Law Society, the Scottish Legal Complaints Commission, the Faculty of Advocates, the Association of Commercial Attorneys, the Legal Defence Union, the Scottish Solicitors Discipline Tribunal, Citizens Advice Scotland, Which? and the centre for professional legal studies at the University of Strathclyde law school.
The amending regulations are a direct result of the working group’s findings. They will significantly assist in making the legislation a more effective framework for dealing with legal complaints in Scotland, which is in keeping with the Scottish Government’s national outcome:
“Our public services are high quality, continually improving, efficient and responsive to local people’s needs.”
The regulations will rearrange the order in which the SLCC considers the various aspects of a complaint, to improve efficiency and better reflect current practice. They will give the SLCC the power to discontinue and reinstate service complaints and will give legal practitioners the right to complain about the handling of a complaint by a professional body. They will also require the SLCC to set up an independent panel to advise it on consumer and equality issues.
I hope that that is useful to the committee. I am happy to take questions.
It all seems like common sense to me.
I thank the cabinet secretary for that opening statement. To what extent does the Scottish Government monitor the operation of the commission?
The SLCC lays an annual report before Parliament. It is a non-departmental public body for which my unit has sponsorship responsibility. We work closely with the SLCC, including on its consultation on budget proposals.
It is an unusual non-departmental public body in that it is funded not by the Scottish Government but by a levy on the profession. There is a certain amount of accountability to the profession regarding the way that the commission operates. We work very closely with it on improvements to and efficiency in its operations.
I am aware that ministers appoint members of the board. Given that the changes, which are all very sensible and should improve the complaints system, have come from stakeholders, and given that the commission came into being in 2008, is it not time for some post-legislative scrutiny of how the commission is operating and a more in-depth look at its performance and how it could be improved?
I am happy to consider any suggestions that Ms Mitchell or, indeed, the committee may have, but it seems that we have the appropriate balance. As Denise Swanson said, the commission is a non-departmental public body. We appoint the commission and there is a level of scrutiny there, but we have to have trust and faith in those who are appointed, and we do.
Equally, it is quite clear that the levy, which is unusual, if not necessarily unique, ensures that there is a great deal of scrutiny by bodies that represent individual members of the profession.
I am happy to take on board any suggestions, but it seems that the commission, together with those stakeholders, has been working reasonably well. It has recognised that there have been challenges and difficulties, and it has got itself together and worked out what changes are needed. We are here as an Administration to support it, although we are open to suggestions.
I understand that the SLCC is funded by a levy on stakeholders—people who may be the subject of complaints—so I suppose that I am suggesting that we should ensure that there is more independent scrutiny.
Again, I say that I am open to suggestions about the level of scrutiny that you want. I have had no suggestion that the organisation is not working reasonably well and smoothly. Clearly, the Government has oversight and responsibility regarding the commission, as it does with any NDPB. It seems that some tweaks have been made and some challenges have been met. We are discussing and engaging with stakeholders.
My deputy and I meet the Faculty of Advocates and the Law Society regularly. Unless matters such as malfeasance were suggested, I do not see why the Government would wish to intervene in a body that appears to be liaising well and operating reasonably smoothly. However, we are always open to suggestions.
11:15
The measures in the regulations are good but, given their number, it would be good to have wider debate and parliamentary scrutiny. We in the Scottish Parliament are notoriously bad at doing post-legislative scrutiny.
That is a matter for the committee or perhaps for Opposition parties in considering Opposition days. One reason why many aspects have been referred to is that the field is complicated. I welcome the fact that the measures have been discussed and taken on board not only by those who would normally expect to be represented, such as the Law Society and the Faculty of Advocates, but by bodies that interact with the public, such as Citizens Advice Scotland and Which? The issue that you raise is for Parliament rather than the Government.
I do not want to give evidence, but am I right in saying that an arm of the Law Society used to deal with complaints? That was not satisfactory. We have now moved to the Scottish Legal Complaints Commission. Does the cabinet secretary agree that the independent advisory panel will be important, as it will look at how the commission operates?
The basis for establishing the SLCC was public concern, which was transmitted across political parties, as the convener said. Such aspects could not and should not be dealt with by professional bodies regulating themselves.
It might help to note that, in the past two to three years, the SLCC has reported an improvement in the efficiency of its complaints handling. There was a bit of a backlog, which has been resolved. In the budget proposals that were recently consulted on, the SLCC reduced the levy. It is reporting on improvements in processes and in the time that it takes to process complaints.
Are you confident that the enforcement of recommendations is working well?
Yes. The number of cases that are taken to court for enforcement is reducing.
I refer to my registered interest as a member of the Faculty of Advocates.
Putting into statute the independent advisory panel is a way forward and I am pleased that it will include representatives of consumer and equalities organisations. That ought to improve substantially how the commission functions, if it takes on board the panel’s comments.
I welcome the flexibility that is being built in, but I am surprised that it has taken a wee while to get that. It seems like common sense to have the ability to revisit eligibility questions and rearrange the order of consideration and to have the power to discontinue and reinstate service complaints. They all seem like measures to manage cases that should have been available from the start, so I very much welcome them.
Consultation packs were sent to a range of people. Were they all happy? Were the consultees—particularly the consumer organisations Citizens Advice Scotland, Which? and the Office of Fair Trading—content with the amendments to existing practices?
Yes. Those organisations were part of the group that worked on the proposals. The group’s remit was to agree which improvements could be delivered through practice change, which would require primary legislation and which would require subordinate legislation. The group agreed on the position.
The one outstanding issue concerns appeals going to the Court of Session. That element requires primary legislative change, so the group accepted that it must remain as it is at the moment.
Do the rest of the proposed amendments have agreement across the spectrum?
Yes.
That is fine.
Members have no more questions, so we will move on to item 3, which is the formal debate on the motion on the regulations. I invite the cabinet secretary to move motion S4M-10634.
Motion moved,
That the Justice Committee recommends that the Scottish Legal Complaints Commission (Modification of Duties and Powers) Regulations 2014 [draft] be approved.—[Kenny MacAskill.]
Motion agreed to.
As members are aware, we are required to report on all affirmative instruments. Are members content to delegate authority to me to sign off the report?
Members indicated agreement.
Right to Information (Suspects and Accused Persons) (Scotland) Regulations 2014 (SSI 2014/159)
Item 4 is consideration of one negative instrument, which aims to satisfy the requirements of a recent European Union directive on the right to information in criminal proceedings by specifying that every suspect in police custody shall receive a letter of rights. The Delegated Powers and Law Reform Committee has drawn the Parliament’s attention to the regulations because the 28-day rule has not been complied with, although it has accepted the Scottish Government’s reasons for that. The committee also draws our attention to the terms of regulation 3(2) on the time limit for providing information. Are we happy to endorse that committee’s conclusions? [Interruption.] I knew that Alison McInnes would want to speak; out of the corner of my eye, I could see her bracing herself at the starting blocks—I have got the Commonwealth games in.
The regulations do not refer to providing the letter of rights in an appropriate language for people. Should they refer to that?
An amendment on that could be lodged in the future.
Page 4 of paper 4 refers to consultation. My former colleagues in Police Scotland
“have indicated that they already endeavour to ensure all suspects understand their rights, and that providing”
information
“both verbally and in writing would result in disproportionate time and resource implications.”
That is disappointing and represents a conflict of terms, although I am partly reassured by the statement on page 5 that further work is required.
It is terribly important for the rights to be read out because of the low levels of literacy. I hope that Police Scotland will realise that, if it is endeavouring
“to ensure all suspects understand their rights”,
there is a burning need for suspects to be read their rights.
Officials have just reminded me that the Criminal Justice (Scotland) Bill—we will come back to it, so members can lodge amendments—says at section 5(3) that
“The person must be provided as soon as reasonably practicable with such information (verbally or in writing) as is necessary to satisfy the requirements”.
My experience is that, if that was not done, the proceedings would be challenged. John Finnie will know from his experience that, if someone does not understand what is asked of them in a police station, the rest of the process can be challenged and set aside. Members are right to raise the issue, which we can deal with at stage 2.
Elaine Murray is waving her pencil, which means something. You may speak, as Alison McInnes and John Finnie are done.
Did we not recommend in our stage 1 report that the information should be provided verbally and in writing? We definitely should return to that.
There we are. It is good to raise the point again.
Are we otherwise happy—John Finnie’s body language is telling; he hardly needs to raise his voice—to endorse the DPLR Committee’s conclusions?
Members indicated agreement.
Apart from what we have said on the record, are we content to make no recommendation on the regulations?
Members indicated agreement.