Legal Profession and Legal Aid (Scotland) Act 2007 (Transitional, Savings and Consequential Provisions) Order 2008 (Draft)
Item 2 concerns an order that is subject to the affirmative procedure. I draw members' attention to the order and to its cover note. Before the motion is moved at agenda item 3, item 2 gives members the opportunity to ask the Cabinet Secretary for Justice and his officials any questions. I welcome Kenny MacAskill and his Scottish Government officials: Colin McKay, who is the deputy director of the legal system division; Paul Johnston and Carol Snow, who are solicitors in the constitutional and civil law division; and Carole Johnston, who is a policy adviser in the constitution, law and courts directorate.
The Scottish Legal Complaints Commission was established by the Legal Profession and Legal Aid (Scotland) Act 2007 to investigate complaints by the public about services provided by legal practitioners. The order provides for the transition from the complaints regime under the Scottish legal services ombudsman to the new regime under the commission. The SLCC will operate from 1 October 2008, when the remaining provisions on the SLCC in the 2007 act will come into force. A commencement order to that effect will be laid shortly. The office of the SLSO will shortly thereafter be abolished by another order.
You are a bit ahead of yourself in trying to move the motion.
I declare my membership of the Law Society of Scotland, which is relevant, although I have been a non-practising solicitor for some years.
The draft order sets out transitional arrangements; the commencement order is still to be laid. The draft order paves the way and various issues will be consequent on it as we head in the general direction of bringing matters together. It is not the be-all and end-all. It is not a start, as the journey has already commenced, but a further order will be laid to commence provisions in October.
I am not totally certain that I understand that.
I share a wee bit of Robert Brown's concern about that paragraph.
The SLCC will kick in. The order divides up the hangover matters. Debates will have to take place about conduct and services complaints, which are described in the principal legislation that was passed in 2007.
On 1 October, the SLCC's new complaints functions will come into being. In what way will somebody who lodges a complaint in the middle of September be treated differently from somebody who lodges a complaint on 1 or 2 October?
The SLCC's regime gives it greater powers of investigation and allows it to award compensation levels that are not available to the SLSO. The SLSO is a traditional ombudsman. In essence, it considers how the Law Society has investigated a complaint and makes recommendations to the Law Society about how it investigates complaints. It can criticise the Law Society, but it has no powers to determine complaints.
I am confident from what the cabinet secretary has just said that the operational provisions are seamless and I think I can see what you are trying to do. However, is there a risk that at some point in the future the kind of lawyer that we are having to deal with in such situations, because they are the kind of lawyer who is imperfect, will find it convenient to say that their imperfection started earlier and therefore goes back to a previous regime when compensation was not payable? Might a lawyer want to backdate his misconduct to avoid paying compensation?
When the conduct or the inadequate professional services occurred would be a matter of fact that the SLCC would determine. One reason for making the cut-off date for inadequate professional services the date of instruction by the client is that it is usually reasonably clear and unarguable when the client first instructed. It should not be possible for the solicitor to forum shop and try to go back to the earlier regime.
If there is to be an argument, it will be at the outset, because it is the date of instruction that decides which regime will be used. Any solicitor would have to make that argument at the outset as opposed to waiting many moons and saying, "Yah, boo—you instructed me on such and such a date." Clearly, the first issue that has to be considered is under which path the complaint will be considered. Therefore, one looks at the date of instruction. There may in some cases be an argument at the outset but, as Colin McKay correctly said, the date of instruction is a matter of fact, which I presume could be gleaned from the file notes and the evidence of the client and the solicitor as to when people attended and first instructed.
But do you accept in principle that there is a risk—forgive me, it may be penny numbers—that if someone pops in to see a solicitor for 10 minutes for advice on whether something is worth coming back on and then comes back a month later, there may be a scrap about which of those dates was the first instruction, because it could significantly affect the situation?
There clearly could be scenarios in which a client who has many cases is consulting a solicitor and a matter may be floated. The date of instruction would be a matter of fact that would have to be decided by the appropriate body in the first instance. For example, if the date was disputed because a client went in to discuss their divorce and it was only during the course of the discussion that they asked the solicitor to look at their will or their house, clearly such matters are matters of fact that will have to be resolved at the outset, because the date is pivotal to the process.
The decision as to fact would be made by the SLCC.
Yes.
Definitively? You can never exclude the courts, but—
Subject to any challenge that may be sought by judicial review or any other means, it is a matter on which the SLCC would decide, I presume by looking at documentary evidence—in particular, the file—or, if need be, the evidence of witnesses.
I am a wee bit confused, as my colleague Robert Brown was, by the end of the first paragraph of the Executive note with regard to policy objectives. The second last sentence ends,
There may be a tautology, but our understanding is that that has no legal effect and therefore is not critical. I bow to Bill Butler's superior grammar, but such notes are written in that manner. I understand your disagreement with the syntax or grammar, but there is no consequential effect.
Fair enough. I am not going to die in a ditch over the matter, but there seems to be a lack of clarity. However, I hear what you say and, if that is what you are advising the committee, I accept it.
I am sorry, but I am going to be difficult again. The problem is that I do not take meaning out of that paragraph in the Executive note. I think that I understand what the order will do, but I want to be clear about the other commencement order. What will it commence or, to put it another way, what will not be commenced until 1 October?
A commencement order that will be laid in the next few days will bring into force the vast majority of the provisions of the 2007 act that are not already in force. That order will ensure that the Legal Complaints Commission has all the powers that the Parliament decided to give it under the 2007 act.
So that is the main commencement order.
Yes—it is the fifth commencement order, but it is the main one. The reason why we need two orders is to do with the powers in the 2007 act. To make transitional provisions, we must use one set of powers—which is what we have done in the order that we are considering today—and to commence, we use a different set of powers. There is no parliamentary procedure associated with those powers, although the order will be laid a couple of weeks before it comes into force.
That is helpful.
Leaving aside the tautologicality in the policy objectives, and as members have no further questions, we will proceed to agenda item 3, under which we will consider formally the motion to recommend that the order be approved. I invite Mr MacAskill to move motion S3M-2220.
Motion moved,
That the Justice Committee recommends that the draft Legal Profession and Legal Aid (Scotland) Act 2007 (Transitional, Savings and Consequential Provisions) Order 2008 be approved.—[Kenny MacAskill.]
Motion agreed to.
Scotland Act 1998 (Agency Arrangements) (Specification) (No 2) Order 2008<br />(SI 2008/1788)
Agenda item 4 is consideration of one item of subordinate legislation under the negative procedure. The Subordinate Legislation Committee raised no points on the order. Are members content to note the order?
Members indicated agreement.
That concludes the public part of the meeting, so I ask members of the press and public to leave.
Meeting continued in private until 12:13.