To give evidence on the Council of the Law Society of Scotland Bill, I welcome from the Law Society of Scotland David Preston, who is the president; Douglas Mill, who is the chief executive; Michael Clancy, who is a director—I welcome him back—and Philip Yelland, who is a director. Of course, I also welcome David McLetchie MSP.
I am a non-practising Queen's counsel.
I will kick off. The witnesses should feel free to indicate who wishes to answer. I expect that Mr McLetchie will answer most questions.
Could I declare an interest?
Certainly. I beg your pardon.
I am a member of the Law Society of Scotland and I am the bill's promoter. Before we proceed to detailed questions, I record my thanks to colleagues who have supported the bill, which I trust will be non-contentious. I thank particularly the members who signed the bill—Pauline McNeill, Roseanna Cunningham and Donald Gorrie, who is a member of this committee.
We are in danger of making the Parliament look like it is full of solicitors, which it is not.
I ask the chief executive of the Law Society, Douglas Mill, to give the background to that.
The bill is an essential part of our modernisation programme, which is an endeavour to make the organisation more open, modern and accountable. We have undertaken programmes on matters such as better resourcing, improving our communications with the profession and the public, improving our ability to produce strategy and internal management.
Does the bill do more than tidying? You tell me that it is intended to regularise what was practice, but does it not do more than that?
Yes. There is no doubt that a belt-and-braces approach is being taken. On examination, we found that we were not the only body with such difficulties or potential difficulties with our ability to delegate. Law on such matters has changed considerably. We discovered that our English counterparts had closed off any uncertainty in 1974 through statutory provision. We approach the committee in a similar manner today.
The convener asked for examples of some functions that had been delegated. Some matters that arise from the issuing of practising certificates had been delegated and we would like to delegate them. Questions that relate to admission to the profession, the removal of restrictions on practising certificates for technical reasons, continuing professional development and client relations and complaints require referral to the council for decisions. Committees would be perfectly competent to deal with many such issues.
Do committees undertake such tasks?
They fulfil their tasks by looking into such matters, but they must make recommendations to the council, which requires to consider the basis of those recommendations and approve the functions.
Since we were made aware of the issue in 1999, we have acted in good faith by amending our procedures to bring everything back to the council for ultimate decision making.
I would not say that you had ever acted in anything but good faith.
Non-lawyers serve on a number of committees, particularly the education and training department committee, the law reform department committee and the practice management committee. They contribute a lot to the working of the committees. Further, the client relations department and committees have increased the use of non-lawyers.
As we have narrowed our inquiry to deal with complaints, it is interesting to hear that you have lay members on your client relations committee.
Perhaps Mr Yelland might like to talk about that, as he is the relevant director.
We have five client relations committees, on each of which are four non-solicitor members. In 1990, there were three committees with only two non-solicitor members on each. That demonstrates that the input of the non-solicitor members has increased significantly and is important to the process.
How many solicitor members are there on the committees?
Each of the five committees has six solicitor members.
The explanatory notes state that the suspension of the previous practice of delegation to committees and sub-committees is
As the adverse effects are most apparent in the client relations department, I ask Mr Yelland to answer that question.
When a complaint about inadequate professional service is dealt with, the matter will go to a committee, which will make a recommendation to the council for the final disposal of the matter. The time between the committee considering the matter and the council deciding on it is six to eight weeks. If powers are delegated back to the committees, the time it takes to deal with a case will be reduced by six to eight weeks.
You may have answered this question already, but perhaps you could elaborate a little. The written evidence submitted on behalf of the Law Society contains some information on how the powers of delegation contained in the bill might be used in relation to complaints handling. How do you envisage using the powers of delegation contained in the bill?
Are you asking about matters other than those relating to client relations?
I am asking generally.
As has been said, the intention behind the bill is to modernise and streamline the council's processes and empower the committees to make decisions. As I have said, issues arising from admissions to the profession, practising certificates and continuing professional education are all areas that could be speeded up. Policies of the committees could also be implemented much more quickly. Of course, as the bill accepts, that will not deal with the rule-making or legislative function of the council, which has been specifically excepted, as have the decision-making powers of individuals.
Can you provide us with some information about the role that you anticipate for non-lawyers in the decision-making processes of the Law Society?
That has to be put on a proper footing. We have considerably increased our use of non-solicitors in all our committees and the bill would clarify our power to do that. We live in an era where we are all well convinced of the value of cross-fertilisation and of using people effectively and that process is accelerating.
Do people who are not members of the Law Society's staff receive remuneration for the work that they carry out on behalf of the council—for example, serving on committees and sub-committees—and how does their involvement with the Law Society affect their work and opportunities?
Solicitor and non-solicitor members of committees are not paid, but their expenses are reimbursed. Given the loss of time in their practice that their membership causes, some of our council members receive remuneration if they convene a certain committee.
It is important to point out that there are certain circumstances where people are paid for specific items of work. For example, if research was required into legal aid matters, the Law Society would pay a researcher on a proper commercial footing. It also pays for external advice on specialist areas.
The bill gives discretionary powers to the council but is silent on when they should be used. Questions have also been asked about lay representation on those committees to which delegated powers have been given. The bill does not mention the extent to which lay people should be involved in those committees. Would it be helpful if the bill contained more detail on when those discretionary powers should be exercised and more guidance on the extent to which lay people should be involved in committees?
The purpose is to empower the council rather than be too prescriptive. The policy issues that underline the statutory provisions are matters for the council of the Law Society by reference to the primary statute.
It is helpful to consider the Solicitors (Scotland) Act 1980, which I will refer to as the mother act. The 1980 act allows the council to embark on many of its activities. Only in very few circumstances is it prescriptive about the obligations that are imposed on the council. For example, under the amendments in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, the council is obliged to investigate matters of conduct and inadequate professional services. It is also mandatory for there to be a guarantee fund, but, by and large, the functions of the 1980 act are discretionary, not mandatory, and it is in that setting that the bill is introduced.
One concern that has been highlighted to me is that the council does not have any lay involvement. Being more prescriptive about how and when the council should use its discretionary powers would help the process of modernisation and transparency. Is that a potential missed opportunity? I understand Michael Clancy's comments about keeping the bill's provisions within the terms of the mother act, but are we missing an opportunity to have greater transparency at the heart of the Law Society, which is a matter about which the committee has received representations?
That is a broader policy issue for the Law Society, so the president may wish to comment.
The council is discussing the issue of lay representation. It is felt, however, that the purpose of the bill is to empower committees to take those decisions without the need to involve the council. Non-lawyer involvement will be increased and enhanced without necessarily introducing non-lawyer members to the council. As I said, that issue is subject to debate within the Law Society. In order to make progress with modernisation, we want to proceed with the bill. That would not be a bar to future consideration of non-lawyer membership on council.
My comments are not intended to be a criticism of how the council operates. Evidence received from the Law Society by the committee during its inquiry into the regulation of the legal profession stated that the fact that there was no lay involvement in the council was unhelpful, especially given that the council is responsible for considering complaints. It is fair to say that the Law Society recognises that issue. However, it would be interesting to know how far that debate has progressed and whether there is a possible time frame in which changes may occur or whether it is just a continuing debate.
Whether matters of conduct will remain with the council is also under discussion. I cannot give any undertakings on the part of the council. Debate is continuing, and the matter is due to be discussed at council meetings within the next few weeks.
Would it be helpful if Philip Yelland put into context the amount of conduct debate that is required at the Law Society?
Approximately 450 to 500 cases come before committees during a year. Those cases must also come before the council for a decision. Of those, only 3 to 4 per cent have any suggestion that professional misconduct should be prosecuted before the tribunal. It is an issue only in a very small proportion of cases.
It is a technical point, but the council does not make a determination on the specific question of conduct. That is reserved exclusively to the independent Scottish Solicitors Disciplinary Tribunal. The council puts the matter forward for prosecution before that independent tribunal, but does not make the final determination. The composition of the tribunal, as committee members know, includes non-lawyers.
On the debates about lay involvement in the council and dealing with complaints about conduct, is there a time frame around when those debates will end and some recommendation or decision will arrived at?
It is difficult for me to give any sort of prediction. Saying that the debate is continuing is as close as I can come to a time frame.
I am not quite sure whether Michael Matheson has asked this. We will be taking evidence from the legal services ombudsman, who has raised the following point:
I re-emphasise Mr McLetchie's point about enabling. As far as the two on-going debates are concerned—about lay involvement and the model that we should apply—there is an element of putting the cart before the horse. Obviously it is not for the Law Society to presume that the bill will become an act, but we are working on a scheme of implementation, which we would be happy for the committee to see in due course.
Will the committee have information about that before stage 2 or, indeed, stage 3?
That would be the intention.
That would be the intention, if we could have an indication of when stages 2 and 3 will be. The scheme is being worked on now in an operational sense, but it must still be adopted as council policy. In a spirit of openness, we would share the information with the committee.
I do not know about time scales. It is Mr McLetchie's bill. Does he have any idea about the timetable?
The council is considering the matter at the moment. As proposer of the bill, I would be happy to bring to the committee the scheme as it is approved by the council. Of course, that scheme would then be conditional on the bill being approved by Parliament.
That would be useful. The first question was whether the legal services ombudsman has had a reply yet.
We sent the legal services ombudsman a copy of our memorandum. In so far as that contains sketches—
I put the question to you simply because we are going to take evidence from the ombudsman and, in fairness, I wanted to allow you to respond.
I return to the point about remuneration for lay members. Is there a reason in principle why lay members do not receive remuneration? I am asking out of curiosity rather than because I have a hidden agenda.
My guess would be that it is because of economical management of the Law Society's affairs, but I will allow the president to answer.
Pleading poverty for the Law Society of Scotland will not get you far, Mr McLetchie.
We have never asked for that.
I might be able to assist you, convener. Over the years, there have been debates about whether non-solicitors or, indeed, solicitors should be paid to attend committees or prepare reports in relation to complaints. In the past, when lay members have been asked whether they wish to be paid, their response has been that they would prefer not to be, because were they to be seen by those who make the complaints as being in the pay of the Law Society, they would be perceived as not being independent.
A lot of the evidence that the committee received during its inquiry into the regulation of the legal profession indicated that lay involvement in the council raises questions about the fairness of the process, particularly in relation to the imbalance of power. A solicitor can lobby a council member to argue his or her case before the council but a complainant is not able to do so. Do you accept those criticisms?
The Law Society would prefer to see the totality of the committee's report and conclusions before giving specific comments vis-à-vis that matter. It is not wholly within the ambit of today's discussions. Perhaps the secretary of the Law Society will add to that.
I agree with Mr McLetchie. We will consider such matters and take them on board when we receive the committee's report, but the issue seems to go beyond the specifics of what we are here to discuss.
I remind the committee and the panel that our report into the regulation of the legal profession will be published on 27 November. We will perhaps return to that issue at a different stage of the bill.
The bill contains various restrictions on when delegation is competent and on whom functions can be delegated to. Will the witnesses outline those restrictions and the rationale behind them?
The primary restriction is set out in new section 3A(10), which relates to functions that are excepted from the scheme of delegation under the bill. Those functions are to make rules or regulations under the 1980 act, and to prepare the constitution of the council. They are excepted from the scheme of delegation because the council is a legislative body, albeit one with a limited scope, and it would be inappropriate for the council's legislative power to be handed over to a committee, a sub-committee or an individual. That would be like the Parliament deciding that Paul Martin should be the person to agree or disagree to bills. The member and his colleagues may think that that is a good idea—I am sure that in certain circumstances it would be—but the issue of democracy comes into play here. The council is the elected, democratic body for the profession of solicitor. Its legislative, quasi-sovereign powers are prohibited from being devolved to committees or individuals.
There is a lack of lay involvement in the council during the complaints process. A solicitor may lobby a council member to argue his or her case, but that option is not open to the complainant. Could a balance between the rights of solicitors and those of complainants be restored by delegating the power to hear complaints to a committee? You can see where we are coming from. There is a problem if one side is able to argue its case but the other is not represented.
That issue was raised during the committee's inquiry into the regulation of the legal profession. I recollect a debate on the topic between Martin McAllister and Lord James Douglas-Hamilton. We are conscious of the matter.
I understand that in England the Law Society has decided to make it clear that there should be no conflict of interest and that there should be firewalls between those who make and take up complaints, and those who represent solicitors. Would such a system be practicable in Scotland?
That depends on the terms of the scheme of delegation that we introduce. When we discussed the issue earlier, the then president of the Law Society of Scotland, Martin McAllister, indicated that the convener of a committee spoke to and defended the minute that was before the council. It is possible that in future minutes will not come before the council, because of the scheme of delegation. The involvement of non-lawyers in the committee structure could be perceived as addressing the issue that Lord James Douglas-Hamilton raises.
I am one of the members of the committee who has seen the operation of the full council. Do you agree that the way in which the full council considers and deals with complaints is entirely fair?
I agree that it is very fair.
The Law Society submission suggests that a "clarificatory amendment" may be necessary in relation to proposed new section 3A(5),
At the start of the process, we must decide whether we have a complaint, whether someone has an interest in making the complaint and whether it relates to inadequate service or professional misconduct. A number of cases come to us in correspondence that clearly do not relate to inadequate service or professional misconduct. We want the power to say at that stage that the matter is not for the Law Society and that we will not investigate it. In such circumstances, the long stop is already in place, because if we do not investigate or refuse to investigate, the person can go to the Scottish legal services ombudsman if they are unhappy with our view.
I think that the person concerned is advised in correspondence that they have that right, so they are always aware that there is a channel if they are dissatisfied with the initial determination.
That is correct.
In the light of our previous discussion, I think that the committee would want the chance to comment on and be fully aware of your proposals. We would also be interested to see in due course the terms of any clarificatory amendment.
Unless we have omitted to say something or any member thinks that we have not asked a question, I believe that we have no further questions. I thank the witnesses.
Thank you.
We are running to our timetable. I welcome Martyn Evans, who is the director of the Scottish Consumer Council, and Sarah O'Neill, who is a legal officer for the SCC. I refer members to paper J1/02/39/3, which is a helpful submission from the SCC.
I have just been advised that I should declare my membership of the Law Society as a non-practising solicitor.
Good grief. This is becoming a deluge. I think that there should be a collective declaration in the Parliament at some point.
When we discussed the matter with the Law Society of Scotland, we discussed the inappropriateness of its operation, in that its reading of its powers is that decisions have to come back to its council. We believe that the proposal means that there will be greater speed and the added certainty that the society could properly have the power to delegate.
The bill will speed up the process, which is obviously good for complainers, because their complaints will be dealt with more quickly. It will make the process fairer. Although there are lay members on the complaints committees, when the council is dealing with a complaint, there is no lay input beyond the recommendation that the committee makes. The process would be more transparent if the committee that has lay representation on it dealt with the complaint.
The explanatory notes to the bill state that, prior to 1999, committees and sub-committees of the council of the Law Society of Scotland discharged certain statutory functions of the council. Uncertainty about the legality of that arrangement, in part, led to the bill. Do you have evidence of how the suspension of that practice affected consumers?
We do not have evidence on the relative positions before 1999 and now. Our policy position is that the involvement of lay people in resolving complaints is appropriate and that it is inappropriate for the council to make decisions without the complainant being able to be there. Although the bill does not necessarily change the policy of how the Law Society would operate, it empowers it to decide to have complaints committees with a majority of lay members on them.
Other members might develop those points in questions.
That is the issue as far as we are concerned.
The bill leaves the council of the Law Society discretion as to how the powers that the bill contains might be used. For example, it does not state when delegation should take place or when lay persons should be present on a committee. What is your response to the suggestion that such discretion should be more limited, perhaps by stating clearly in the bill at least some of the circumstances in which delegation should take place or when and to what extent non-lawyers should be present on committees?
That goes to the heart of the issue that we discussed with the Law Society and internally in the Scottish Consumer Council. We decided that we would support the bill but make no comment on how the Law Society operates its discretionary powers, because we wanted to see what the Justice 1 Committee reported in its review of the regulation of the legal profession. If we had chosen to amend or not support the bill, that would have been on the basis of our view about the proper operation of the complaints system, rather than on consensus that might emerge after the committee's report is published. We were on the horns of a dilemma. Should we support what we considered to be a technical issue that would allow the council of the Law Society to delegate legally and to make decisions or should we seek to amend the bill to say how the Law Society should operate its policy? We chose to see the bill as a technical amendment to the council's powers. We would prefer to wait until the committee has reported before discussing the council's discretion and policy.
In evidence to the committee's inquiry into the regulation of the legal profession, the Law Society of Scotland said:
In our evidence to you we said that we did not agree with that. We believe that there should be more independence within the system. It is not fair that a council of solicitors who are elected by the membership make the decision about where a complaint should go. We think that it is unfair that a solicitor can object to the decision and ask a member to raise their objections. I am trying to separate that issue from the issue of the bill. We do not agree that the current position is satisfactory or that it should continue. As Michael Clancy of the Law Society said, we see the bill as giving the Law Society the power to exercise delegation to lay committees if it chooses to do so.
We will get further details before stage 2. Your position is protected should you wish to suggest an amendment to the bill.
One of the main concerns that the Scottish Consumer Council has about the way in which the Law Society handles complaints seems to be the fact that the council of the Law Society operates on the basis that someone can represent the solicitor but not the complainant, who is often the consumer. Given the fact that, technically, the bill will give the council of the Law Society powers to delegate the handling of such complaints—a provision that you support—do you expect that the majority of complaints will be dealt with by committees rather than the council?
Our policy—on which we have given evidence before—is that we expect greater independence in that aspect of the regulation of the solicitor profession. We believe that the Law Society has a role to play in the investigation of complaints against its members; however, we suggest that, beyond the Law Society, there should be powers for the legal services ombudsman to intervene not only at the request of an individual complainant, but when the ombudsman thinks that a part of the process is inadequate. Our ideal would be greater independence of the complaints-handling function that the Law Society operates, more independent review of it and more of what we describe as co-regulation. At the moment, there is self-regulation, whereby the Law Society has a series of discretionary powers that it can exercise. To answer your question fully, I refer back to our original recommendations that there should be greater independence, more co-regulation and a supervisory function for the ombudsman.
We understand that.
I understand that. However, let us put aside our inquiry into the regulation of the legal profession. If there is no change to the way in which the Law Society deals with complaints but the bill is passed and the council of the Law Society is given discretionary powers, how would you like the system to work under the bill? Would you like more powers to be delegated, to allow committees rather than the council to deal with complaints?
If what we are considering was the only game in town, we would like the Law Society—which, under this amendment to the 1980 act and the provisions within which it works, retains discretion—to exercise its discretion by delegating decisions about complaints to committees that are 50 per cent made up of lay people and chaired by independent chairs. We would also like the definition of a complaint to be widened. The Law Society could make that decision, although it could choose to define it narrowly, because it could look to legislation to support a narrow definition of a complaint.
That is helpful. Thanks.
The problem is that we cannot talk about our report yet. The evidence is coming up with some things that will be in the report.
We asked our previous witnesses, from the Law Society, to comment on their submission, which suggests a clarifying amendment to new section 3A(5), to ensure that individuals could identify more easily whether a complaint was about professional misconduct or simply about inadequate professional services, thereby determining whether the Law Society should be the body to look into the matter. Do you have any views on the desirability or otherwise of such an amendment?
I will talk about the general position and ask Sarah O'Neill to comment on the detail. When we met the Law Society in the pre-consultation period, we said that we would not support the bill if it allowed an individual to decide on a complaints issue. The Law Society then proposed an amendment to that effect, which Sarah O'Neill has been discussing with it.
We have some concerns about how such an amendment might be worded. As Martyn Evans says, we insisted that the bill should prevent powers to deal with complaints from being delegated to an individual. The Law Society's rationale is that, without its proposed amendment, the whole council would have to decide on an issue that clearly was not a complaint—for example, someone complaining about the decision that a court had made. If the full council had to make such decisions, that obviously would not help anyone and would slow down the process.
That is helpful. We have already highlighted those points. Your comments reinforce the need for clarity before we move on to subsequent stages.
Would Martyn Evans or Sarah O'Neill like any changes to be made to the bill?
Other than those that you are keeping in reserve.
That comes back to our decision about whether we saw the bill as an entirely technical measure to allow the Law Society to delegate powers to make decisions in certain circumstances, or whether we saw it as a vehicle to make a range of wider changes. We do not currently want any amendment, although we reserve our position on the amendment that the Law Society has suggested. As the convener implied, our difficulty is that we are awaiting the committee's report, which will be published on 27 November. However, the report will be on the wider subject of self-regulation and may address issues that are outside the remit of the Law Society. We believe that the bill is a technical measure and, to that extent, we do not believe that any amendment is necessary.
Thank you for your evidence.
I certainly support the general aims of the bill. The council of the Law Society of Scotland cannot manage adequately the amount of work that it has to do without the power to delegate.
Do you accept that the knock-on effect of delegating could be a difference of six to eight weeks?
In complaints cases, yes. The procedure adds to the complexity as well as to the time.
You state in your written submission:
I accept that to a certain extent the bill is—as people have called it—a technical measure to solve a problem. However, although I do not want to widen the bill to incorporate all the things that I would like to happen as a result of the committee's forthcoming report, I believe that the bill presents us with an opportunity that cannot be missed.
So you would like the bill to detail when the delegated powers could be used.
Yes. On complaint handling, it would not upset the flow of the bill too much to state in statute that complaints have to be dealt with by a committee with a proportion of non-solicitor members.
Why do you feel that the Law Society should not be allowed to make such decisions on a policy basis?
I have examined some of the policies and practices that the Law Society has followed when it has had the freedom to manage its own affairs and that has led me to question seriously whether it balances correctly the interests of the profession and the interests of the public. We have heard an example of that this afternoon. The council of the Law Society of Scotland—and not just in a complaint about conduct—has allowed a council member to make oral representations on behalf of a solicitor who was complained against. The complainant could not do that—complainants do not have that ability. In my book, the fact that the council can allow that to happen questions its impartiality and balance in complaint handling. The council did not have to let that happen, but it did.
If the bill was amended in the way that you suggest, what proportion of committee members do you believe should be non-lawyers?
The proportion should be 75 per cent, or at least 50 per cent. A sensible precaution would be 75 per cent. I will explain briefly why. Having non-profession and non-solicitor members as part of complaint handling looks good, but it is not necessarily effective. The members are a series of individuals with no particular corporate strength and it is easy, if they are in a minority, for them to get caught up in what I would loosely call the organisational culture. That can particularly apply for people who are post-retirement professionals—they like the work that they are doing, they enjoy it, they get considerable personal satisfaction from it and they get no financial reward. If they go too much against the grain, it is easy for the organisation to say that it does not want them any more, as those people do not have the security of an employment contract. There is a natural tendency for an odd sprinkling of non-professional people to be sucked into and to go along with the organisational culture.
Evidence that the committee received during its inquiry into the regulation of the legal profession indicated that the lack of lay involvement in the council raises questions about the fairness of the complaints process. Some witnesses argued that there is an imbalance of power, because a solicitor can lobby a council member to argue their case before the council, but a complainant is unable to do so. In your view, will the bill fully address those concerns?
You might have answered that question already.
The bill will not address those concerns if the council of the Law Society of Scotland holds on to the right to deal with a conduct complaint. I see no need for the council to do that. A positive aspect of the council's examining everything is that it has a vaguely supervisory and strategic role—it pulls things together. I would be keen for the Law Society to maintain some of the good bits of the council's overview role.
I want to clear up a couple of issues. Will the 75 per cent lay representation apply only to the complaints committees?
Yes.
That proportion of lay involvement would not apply to other committees as well. You mentioned representatives of organisations. Would you want that to be stipulated in the bill, or would that be a matter for the Law Society to deal with?
I would not want to be as prescriptive as that. It is good practice that non-professional representation comes from organisations, because that creates a genuine chance to balance the strong professional content.
You do not seem to have much hope that the Law Society will do things off its own bat. You imply that it is necessary for measures to be written into the bill before it will do anything.
Lawyers are creatures of statute. I am always telling the Law Society, "This is good, modern complaint-handling practice." Its response is that the law does not require it. It is natural for an organisation such as the Law Society constantly to return to statute. That is why I am keen for a couple of bits of progress that have been made during the past 12 years to be put into statute. Unless that is done, there will be no guarantees.
It occurs to me that the process could continue indefinitely. We could go on making stipulations that there needed to be someone from the voluntary sector and someone from another sector.
We do not need that much detail. A couple of bits of basic principle have been fought for and hard won. We need something to cling on to, to avoid the slippery slope. That means putting those aspects into statute.
I do not know whether you have an interest to declare.
I beg your pardon. It is a rather out-of-date interest. My husband was once on the council of the Law Society.
I want to pursue the novel idea that lay representatives should represent organisations. Will you give us an example of some of the organisations that might be involved? In the past, lay representatives appear to have been the great and the good.
It is a matter of good practice in complaint handling that a representative from an organisation such as the Scottish Consumer Council should sit on a complaint-handling body. Unlike a person who simply has a keen interest in serving the public and some spare time, such a person will have the strength of their organisation behind them. For example, the complaint-handling body of the Scottish and Northern Ireland Plumbing Employers Federation has membership from the local consumer council.
Would it help or hinder the situation to include some of the snippier, more anti-establishment lawyers, such as those from the Scottish law centres, who are critical of the system?
It is useful to have a balance on any committee. Although I would not be so prescriptive as to list the sort of people that the Law Society should have, it is important to have a balance of lawyers and non-lawyers.
That said, even snippy law agents—which some of us might have been at one time—would still have to be members of the Law Society to have their practising certificates. However, they might not be members of the council.
What about people in citizens advice bureaux and so on?
If someone was not registered as a solicitor, that would be a different matter. However, a solicitor has to be a member of the Law Society one way or the other—they have to pay their dues.
I was interested by the suggestion in your written evidence that a requirement should be added to the bill to make provision for a single committee with responsibility for complaint-handling strategies and co-ordination. Will you expand on how such an approach would benefit the current system?
Complaints are a growing business. However, the number of solicitors has also grown, so I am not suggesting that the situation has worsened. The director of the client relations office of the Law Society said that there used to be three complaint-handling committees. There are now five. Moreover, the number of new complaints to the Law Society has increased this year by 25 to 30 per cent. Speaking more as a former management consultant than as an ombudsman, I believe that such an increase in the number of committees gives rise to the need for a co-ordinating body to prevent the possibility of the five committees going off on their own.
However, would the Law Society not accuse you of creating more bureaucracy? You are arguing that there are possibly too many committees at the moment.
At the moment, there is a middle-level committee called a client care committee. However, the client relations committees make recommendations on complaints. I think that there was a committee called the complaints supervisory committee a generation before that, which means that such a committee has always existed.
Is that an argument for reconfiguring the existing strategy to make it more effective?
Yes.
Would it be possible to lodge amendments to the bill to create such a structure?
I have not gone as far as saying so in my submission. Instead, I have made a couple of specific recommendations for amendments to the bill. The Law Society should consider the recommendation for a supervisory committee, because even though the bill is a result of its proposals, it still does not know what to think about the operation of such a system. I find it quite extraordinary that it is asking Parliament to do something when it does not yet know quite what it wants. I was simply trying to nudge the Law Society into saying that it would be useful to have a committee at such a level.
Should any other provisions be added to the bill?
The power to award compensation has not yet been mentioned. Primary legislation would be needed to upgrade compensation levels in line with inflation from the £1,000 that was set 12 years ago. The issue is small, because we are merely talking about bringing up the amount to current-day values. If it were possible to ensure that future changes could be dealt with without primary legislation, I would welcome that. That is what happens for my powers of compensation, which can be amended without fresh legislation. It seems a touch unfair that someone who received the maximum compensation in 1990 got £1,000, yet somebody who gets the maximum compensation this year—which ought to be £1,300—is still limited to that £1,000 ceiling.
We are having a little debate about whether such an amendment would be competent, given the long title of the bill. No doubt we will find out when that issue comes our way.
If you do not ask, you do not get. I thought that the issue was worth mentioning.
Well, you seem to be a lady who asks. I thank you for your evidence to the committee. We have no more questions.
Members indicated agreement.
Meeting continued in private until 15:21 and then suspended.
On resuming—
I welcome Mr Jim Wallace, the Minister for Justice. The first part of this afternoon's riveting session concerns the Council of the Law Society of Scotland Bill. Let me start by asking a simple question. Do you support the bill?
Yes.
Do you support the aims of the bill?
Yes. As we set out in September in an Executive memorandum that I sent to the committee, we fully support the purpose of the bill. We recognise it as a measure to remedy a defect in the Solicitors (Scotland) Act 1980 and, in doing so, to relieve the Law Society of Scotland of the onerous administrative burdens that the council has experienced during the past two years. If enacted, the bill will place the society on a similar footing to its counterpart south of the border, which enjoys express powers to delegate under the Solicitors Act 1974.
Are you concerned that the society was unable today to be more specific about the lay membership of the committees that will have power delegated to them? Some may feel that it has had a long while to come up with the fleshed-out details, but it came before us with only a mechanism.
As I understand the position, the provision to have lay members on committees and sub-committees also includes committees other than the complaints committees. The society's evidence notes that lay members sit on the mental health and disability committee, the tax law committee, the intellectual property committee, the pensions law working party and the law reform committee. Therefore, the balance between lay and solicitor members may vary from committee to committee, and I would not expect the society to have a hard and fast view.
I take it that you do not have concerns.
No. The Law Society of Scotland has responded. I have no doubt but that it will continue to have lay representation. What we might set down as a fixed formula in 2002 might not be appropriate in 2022.
Would the Executive be content for the fleshed-out detail, even in proposed form, to be before the committee and the Parliament at stages 2 and 3?
I am sure that it would help the work of the committee if the society were able to give some indication of what it has in mind.
You have already answered the first part of my question, but I want to be clear. What problems do you envisage in the way in which the bill deals with the issues that it covers? Furthermore, do you want to see the bill amended in any way?
As I am not the introducer of the bill, it would not be fair for me to have the last word. I would counsel caution on amendments because the bill has been some time in gestation.
That was the very word in my head—gestation.
When the society first flagged up the problem, we told it that we understood its problem and were anxious to see legislation to cure the specific problem that it could not delegate and the administrative burden that that produced with the council having to hear every case.
Am I correct in thinking that you do not envisage any specific problems arising out of the bill?
No, the bill is intended to cure a problem rather than generate a problem.
Given the fact that the bill provides the council of the Law Society with powers to delegate, would it be helpful if the bill included more detail about when and how the council would use those powers?
Not necessarily. It might be helpful if the council gave some indication of that, but it would not necessarily be helpful to have that information in the bill. There is always a problem with putting in legislation what seems sensible at a certain time and in certain circumstances. You must remember that we are dealing with an amendment to legislation that is already 22 years old. The problem that the bill seeks to resolve has been identified in the past two or three years, but the 1980 act has substantially stood the test of time. There is a danger that, if we were too prescriptive in the bill, we would have to amend the legislation further at a later stage if what had been prescribed was no longer appropriate. There is merit in maintaining flexibility. Nonetheless, it would be helpful if the council of the Law Society indicated to the committee and the Parliament how it intends to operate the powers of delegation that we are giving to it.
The evidence that the committee received from the Scottish legal services ombudsman suggested that there is a need for some amendment to require
There is nothing in the bill to prevent that from happening. I agree with the suggestion that complaints
To help you, minister, I refer you to page 3 of paper J1/02/39/04, which has been circulated to the committee today. The committee to which Michael Matheson was referring—
No, I am taking the quotation from page 1 of that paper.
I have seen the quotation. It was from the Scottish legal services ombudsman.
Sorry.
Yes, that statement is on page 1 of her submission.
That is the paper that I was looking at.
That concludes the evidence session on the bill. You seem pleasantly surprised by that, minister—perhaps we have missed something and you have let the cat out of the bag.
I was told that the session would be longer.
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