Limited Companies (Court Representation) (PE863)
Item 3 is petition PE863, in the name of Bill Alexander, which urges the Scottish Executive to amend the Solicitors (Scotland) Act 1980 to allow limited companies to be given either the right to apply for legal aid or the right to represent themselves in court. Among the papers that have been circulated, members should have received the recent e-mail from Mr Alexander. Annex E—a letter of 2 November 2006—confirms that the Legal Profession and Legal Aid (Scotland) Bill will not provide the measures that are sought.
According to paragraph 6 of the paper, the Executive may consider
I favour that suggestion.
I have always thought that the relationship between the company and liability is a two-way street. As long as company directors can rest behind corporate liability, they should not be able to appear. If and when we change the law so that we can look behind that and hold directors accountable, the converse will apply in a sort of quid pro quo, which makes me think that the petition is to some extent premature. Should Parliament go down the road of having a corporate homicide bill and being prepared to hold directors responsible, I would support such a move. At that stage it would be legitimate to argue that a director should be able to appear on behalf of a company. However, while it remains the case that they are given protection, they should not necessarily have the right to appear.
I refer Colin Fox's question to the clerks.
I cannot say more than to refer the committee to the Executive's letter of 2 November, which states:
The petition has two strands: one is representation in court—I do not think we can go down that road—and the other is on accessing legal advice and assistance. I presume that the Legal Profession and Legal Aid (Scotland) Bill, which has just completed stage 2, would allow us to address that point. Not all limited companies are huge corporations; many small charities are limited companies. I assume that they can go for legal advice to a citizens advice bureau and prepare themselves for an appearance in court that way, so that it would not cost them so much.
I recollect the point to which Colin Fox referred. Evidence from the minister and his bill team gave us a date for commencement of provisions in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 in respect of the rights to conduct litigation and rights of audience to be granted to members of professional and other bodies. Paragraph 13 of the clerk's note helpfully outlines the situation.
With regard to Mr Alexander's e-mail, I am not familiar with what the courts have decided. However, there is an anomaly if the courts have decided that companies—limited or otherwise—have human rights, despite there being small limited companies or charitable limited companies that cannot pay solicitors to represent them and therefore cannot be represented in court. I do not think that the term "professional body" would extend to an organisation such as the Federation of Small Businesses, so I do not think that that will be relevant to the point in hand.
I detect that the committee wishes me to write on its behalf to the Executive to seek clarity on the various points that have been made, particularly the last one—given that the minister talked about changes in the grant system. Of course, stage 3 of the Legal Profession and Legal Aid (Scotland) Bill has not yet taken place. We will write a letter if we get the relevant information quickly and the clerks take from the Official Report the comments that have been made. Do I have the committee's permission to write a fairly broad letter to the Executive on behalf of the committee, so that we can get a prompt response and return to the matter?
We should by all means ask the minister about the matter. I am not entirely convinced by the argument that legal aid should be given to small businesses, but it is perfectly legitimate to ask about it. The Executive's Legal Profession and Legal Aid (Scotland) Bill is going through the parliamentary process. If we get clarity from the Executive, that would be helpful for the purpose of definition and record.
I do not dissent from the proposal, but I suggest that we again remind the Executive of its commitment on commencement in March next year of sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. If there is any change to the timetable, we would be obliged if the Executive would flag that up for us.
I will ask the clerks to pull together a letter that we can circulate by e-mail on Thursday to all committee members. We would need to get a response to the clerks by Thursday evening so that the letter could go by hand.
We now move into private session, as we agreed previously, to discuss a draft report.
Meeting continued in private until 16:54.